Wednesday, October 27, 2010

National Assembly, stop toying with anti money laundering and anti terrorism bills

The reluctance of the Nigerian parliamentarians to pass the anti-money laundering (AML) and anti-terrorism (AT) bills is worrisome. Although, if history will be our guide, it rings true to the character of Nigeria’s members of the national assembly to hold anti-corruption bills in disdain. Similar fate as befalling the AML Bill has been the lot of Freedom of Information (FoI) Bill, Whistle Blowers Bill and several other bills aimed at promoting transparency and accountability in government.
Background to the Bill
President Goodluck Jonathan had written twice this year to appeal to the Senators and House of Reps members to pass the bill, all to no avail. News report has it that the new anti-money laundering bill was meant to replace the 2004 version of same bill which was said to lack the relevant provisions that will make it fully compliant with the recommendations of the Financial Action Task force (FATF), established by the G7 Summit held in Paris in 1989. Nigeria, at its last meeting with the FATF in Bahrain in February had promised to pass both the Anti-money laundering and Anti- terrorism bills before 30 June.
What the bill seeks to do
The new bill seeks to replace the Money Laundering Act of 2004, and make more comprehensive provisions to prohibit terrorism financing. It also makes provision for appropriate penalties for offenders and expands the scope of supervisory and regulatory authorities. It equally places a duty on bankers and other financial institutions to report international transfers of funds exceeding $10,000 to the Central Bank from where the records can be accessed by security operatives.
Both casinos and jewellers are also placed under duty to properly identify its customers and report transactions exceeding the stated amounts. The new bill makes provisions for the prohibition of the establishment of anonymous accounts in Nigerian banks and places a legal requirement for the reporting of suspicious transaction or transactions relating to terrorism financing on bankers.
According to Alhaji Ahmadu Giade, the chairman of the National Drug Law Enforcement Agency (NDLEA) “The bills (Anti Money Laundering and the Anti Terrorism bills) are very crucial because they seek to fight against financial crimes, promote security and boost the rating of Nigeria in crime control. No doubt, the proposed bills are a threat to criminals. If they come into effect, drug barons and other criminals will in addition to prosecution and possible conviction, forfeit their ill-gotten wealth.
Lawmakers Grouses
Senators called the bill a complex piece of legislation while the House of Representatives members voted against the provision that any transaction by individuals to the tune of N5 million and N10 million by corporate entities with any bank must be reported to the Nigeria Financial Intelligence Unit (NFIU). They also expressed stiff opposition to penalties, fines and other financial charges in the bill which were all stipulated in the United States dollars instead of the national currency, Naira, arguing that it would be unpatriotic to pass such a bill as it came from the executive.
My thoughts
No matter the ostensible reasons given by the two chambers of the National Assembly for non-passage of the bills, to my mind, the real reasons are as follows:
1. The Nigerian lawmakers are trying to tread softly so that they do not shoot themselves in the foot. They either will not pass the AML bill at all or may decide to pass it after the 2011 elections just like they did with the Freedom of Information bill in 2007. This is because preparation for the 2011 General Elections is in top gear. The lawmakers are likely going to be contesting in the election for various positions. They therefore don’t want to leave any trail of their sources of election funding which they know will be above the approved political finance ceiling as stated in section 91 of Electoral Act 2010.
2. Even if the NASS will pass the bill eventually, it will be a watered down version which will be full of loopholes. This is again due to the lawmakers’ fixation about self preservation. They know full well that some of them indulge in many of the excesses the AML bill seeks to prohibit or curtail, hence the filibustering. It would be recalled that there have been speculations in the media about the humongous remunerations being collected by the members of the national assembly. If this AML bill gets passed into the law, many illegal and illegitimate incomes of the members of the National Assembly will be exposed to the anticorruption agencies both locally and internationally. This they do not want.
3. We need to also look beyond the lawmakers’ reactionary disposition to this anti- money laundering and indeed anti-terrorism bills. I strongly believe that members of the executives have a hand in the non-passage of the bill. With the Governors being the latest cabal in the country, I would not be surprised if the States Chief Executives are the one stage-managing the current lackadaisical disposition of national assembly to the two vital bills. Recent history reminds us that some of the governors, local government chairpersons and indeed past presidents and heads of state have been indicted and convicted for money laundering in and outside the country. It is not in the interest of many of these politically exposed persons who have been named in the Halliburton, Siemens, Wilbros and indeed Daimler bribe scandals to allow the free passage of the anti-money laundering bill. To the corrupt in the society, this is a booby trap, a landmine which they will want to avoid at all cost.
If all the above postulations are not true, how could the Nigerian parliamentarian show so much contempt for the President who have twice passionately appealed to them to pass the bill? Nigeria promised the international Financial Action Task Force to pass the bill by 30 June 2010. It is 4 months past the deadline, yet the national lawmakers have not deemed it fit to pass the anti-money laundering and anti-terrorism bills.
Any Consequence for non-passage?
The consequence of our National Assembly not passing these all important bills is unpleasant. Nigeria risks being blacklisted by the international Financial Action Task Force (FAFT). Legitimate international transactions risk being frustrated while foreign investment could be driven away.
The Way Forward
There must be sustained pressure from all well-meaning Nigerians on the National Assembly for them to pass the Anti Money Laundering and Anti Terrorism bills. These two bills must not be allowed to go the way of FOI and Petroleum Industry Bills on which the Nigerian federal lawmakers were long on promises but short on delivery.

Sunday, October 24, 2010

Issues in Election Petitions in Nigeria

Two incidents in our polity warrant a critical review of the election procedures in Nigeria. The first is the Court of Appeal judgement in Ilorin on Friday, 15 October 2010. After 42 months spanning 3 and a half years, the appellate court declared that Dr John Olukayode Fayemi of the Action Congress of Nigeria and not Engr. Segun Oni of the Peoples Democratic Party won the 14 April 2007 and 25 April / 5 May 2009 re-run gubernatorial elections. The second reason for us to take holistic look at our election procedures is the on-going alteration of the First amendment to 1999 Constitution of Nigeria as well as the Electoral Act 2010. Before delving into the main issues in this piece, a little update is germane.

Hitherto, legal framework in Nigeria does not have time limit on election petitions (particularly since the Supreme Court ruling in Paul Unongo v Aper Aku and others, (1983) 2 SCNLR 332) neither does it recognise inauguration of candidates after disposal of petitions against them. Hence politicians, especially beneficiaries of electoral fraud use all the subterfuges in the statute books to frustrate the judicial process. They hire the best of election petition lawyers who use all the legal technicalities to delay court processes (since many of them use the state resources to fund their litigations). Some of the delay tactics they indulge in include filing of frivolous interlocutory applications and exparte motions. They also line up hundreds of witnesses to testify, all in a bid to waste the time of the court. In some extreme cases, some desperate litigants buy off witnesses of the opposing camps or threaten them to stay off the witness box. In the recent past, judges of the election tribunals are also being financially induced or threatened as being alleged in certain quarters.

Perhaps, these account for why some tribunals, against all judicial best practices, still strike out election petitions on technical grounds even when Office of President of Appeal Court who set up tribunals has strongly advised against this. There have also been some funny judgements being given by some election tribunals. There is currently the drama playing out between the Supreme Court and the Court of Appeal where the apex court had unjustifiably ‘arrested’ the judgement of Appeal Court in the Sokoto Gubernatorial Election. A simple issue such as withdrawing an earlier filed brief has been delayed from March to November 2010. This is curious.

In order to cure the mischief of protracted litigation on election petitions, the Office of the President Court of Appeal in 2007 issued practice direction which stipulate timelines for the filing of petitions and other briefs as well as limiting the number of witnesses that the parties in a suit can call. This assisted to fast track the tribunal process to an extent but lawyers are still able to use other ploys to delay the cause of justice.

Then came the Electoral Reform Committee report in December 2008. The report, in order to cure the mischief highlighted above, recommended that election petitions should be time bound, ERC proposed 6 months for the resolution of all petitions both at the lower tribunal and the appellate court and that the swearing-in of winners should be after the disposition of election petitions against them. Unfortunately, the Council of State in March 2009 rejected these twin recommendations.

The National Assembly in eventually amending the 1999 Constitution pegged the filing of petitions to 21 days after election results are declared, gave 180 days for the hearing of the petitions at the lower tribunal and 60 days for determination of appeals at the appellate courts. The amendment however fell short of determination of election petition before inauguration of winners even as it agreed that the number of judges at the tribunal should be reduced from 5 to 3.

The most counter-productive and retrogressive of all the amendments to the 1999 Constitution was the alteration to section 239 to give original jurisdiction to the Court of Appeal as the Court of first instance in Governorship election petitions. The Court of Appeal, at present, has maximum of 70 judges. Already the court has original jurisdiction on presidential election petition cases, adding the gubernatorial petitions to that will collapse the Court. How will it source the judges that will serve on the governorship election petitions given that one may have to be established in each of the States? INEC said there will be gubernatorial elections in 32 States in 2011 April, add the Presidential tribunal to this. At three per tribunal, the Appeal Court will need 99 judges! So where will it source the balance of 29 judges? That is one headache; the other is that all appeals from National and State Assemblies Election Petitions will still come to the same Court of Appeal for final resolution. Yet, the judiciary has to do all these within a total of 240 days! (180 days at the lower tribunal and 60 days at the appellate court). Will that guarantee justice?

At present, the national assembly is contemplating an amendment which will restore original jurisdiction back to the lower tribunal. However, some legislators want gubernatorial petitions to terminate at the Supreme Court. This will worsen the already bad situation. If governors who lose at the Appeal Court are allowed to go to Supreme Court, that will further delay the cause of justice and overwhelm the apex court as well. There are only 21 Justices of the Supreme Court according to S. 230 (2b) of 1999 Constitution. We must note that with 63 registered political parties in Nigeria thus far, and the locus of these political parties and their candidates to challenge the outcome of the elections, the entire court system in Nigeria will be shut down for election petitions alone. Each election year, civil and criminal cases before these courts are adjourned sine dine (indefinitely) in order to give full attention to election petitions since they are sui generis. This is not good enough and the more reason we must stick to having time line for resolution of election disputes.

On a final note, the time is ripe to revisit the Electoral Reform Committee recommendations on election dispute resolutions. These recommendations are on page 242 of the main report of the Committee. They are: the need to produce rules and procedures that enhance speedy disposal of election petitions; the need to shift the burden of proof on election petitions from the petitioners to INEC; Rules of evidence should be formulated to achieve substantive justice rather than mere observance of technicalities; Elections to the office of President and Governors should be held at least 6 months before the expiration of their terms. No executive should be sworn in before the conclusion of the cases against him/her. In the case of legislators no one should be sworn in before the determination of the cases against him/her; and lastly, INEC should have no right of appeal. These measures, if taken, will restore sanity into our post election dispute resolutions. However, we must do everything to reverse this democracy by court order. Election should be determined at the poll not at the court as is currently the case.