EFCC And Ibrahim Magu’s Never Ending Public Display Of Incompetence By Ilesanmi Omabomi

I have often wondered if the folks at EFCC, including its chairman Ibrahim Magu, have bothered to examine how genuine anti-corruption crusades have been carried out successfully in other jurisdictions. I say this because all I see EFCC and Magu putting on display are evidence of their incompetence, lack of foresight, palpable ignorance of the aims, objectives, and mechanics of criminal prosecution and administration. I make this assertion fully aware that despite all the posturing of President Muhammad Buhari and the current government, the anti-crime agency does not have full independence to fight corruption without interference. Be that as it may, the body has an obligation to show competence in those areas in which it is has the green light until we can do better. With due respect, the body and its leadership have failed woefully in this task. Some recent examples will suffice.

Sometime in September 2016 or thereabout and about sixteen months after President Buhari launched the latest reincarnation of the war against corruption, the EFCC and Magu informed the nation that they have traced monies ranging between $15-$30M to the bank accounting to or controlled by the garrulous former first lady, Patience Jonathan. Not too long after that, the nation was again shocked with the revelation that the EFCC is trying to locate $175m paid into the bank account of a company controlled by guess who? The same Patience Jonathan. Like the tortoise or hare whose name is mentioned in almost every fairy tale, Patience Jonathan’s name is coming up in some of the most brazen tales of theft of public resources. In June 2016 and over one year after the President took office, the EFCC informed the nation that is has discovered $153m illegally transferred into accounts belonging to or controlled by former Minister for Petroleum, Diezani Alison-Madueke. There abound hundreds of similar examples. I have only provided these few examples to set the stage for my arguments and not to provide a litany of these heartbreaking examples of the blind looting of a nation by a greedy few.

Before proceeding, I will at least like to congratulate the anti-corruption agency for suddenly waking up to the possibilities of moving under civil forfeiture laws to seize looted funds and assets quickly while corrupt judges and courts drag out criminal prosecution. Hopefully, some back door hanky-panky will not result in the sharing of the money by the same looters and their prosecutors. The enormous potentials of the civil forfeiture laws are enumerated further under item 10 below.

Why it is taking the EFCC and Magu so long to find these illegal funds sitting in bank accounts next door to them is incomprehensible. If it takes them this long to find funds within Nigeria, you wonder what business they have trying to locate funds in secretive offshore accounts. The EFCC and Magu are quick to tell us how much money has been refunded to the government by looters but are unwilling to name the looters in what is a clear failure to understand that the public naming and shaming criminals are two (denunciation and deterrence) of the four cardinal objectives of criminal law administration, in addition to separation from society (punishment) and rehabilitation. Petty thieves do not enjoy this privilege. Companies, institutions, and government agencies that hire or wish to hire people into sensitive positions involving money are entitled to know as part of their due diligence the history of the people they are entrusting with these positions. If the EFCC continues to hide these names would it be a surprise if one of them ends up as a bank director tomorrow? It is very likely some of them are already in such positions to the full ignorance of members of the public!

Following intelligence that the mostly fraudulent Nigerian banks and their management were hiding vast sums of stolen money what stop the EFCC from directing all banks to provide it with the list of all bank accounts with balances over $50,000 or the Naira equivalent? I can bet that a forensic examination of the contents of such a list will throw up many suspicious accounts for further analysis. Match the suspicious accounts to the owners BVN and tax returns with the Inland Revenue Service, and you will start to get a clear picture of monies for confiscation under our civil forfeiture laws at the very minimum. For those who are quick to raise the rule of law as a cover for criminal endeavors, please be quick to tell us how many Nigerians have cash balances of $50,000 or equivalent and of those who do how many of them got such money legally. The exercise will be about finding stolen money, not seizing legitimately earned money. To ensure that the banks are reporting honestly, the EFCC should carry out unscheduled audits with the assistance of the Compliance Section of the Central Bank of Nigeria but endeavor to be in charge of the audit. A simple computer code that can scan millions of bank account balances an hour in less than an hour and report balances over $50,000, or equivalent can be written for less than $500. Let me know if you need help writing it! A policy like the above should be implemented with a tighter control and reporting of cash withdrawals and transactions.

Since I do not believe in criticism without suggestions and in the efficient use of my readers’ time, I will try to kill two birds with the same stone. I will now proceed to list the improvements or changes that I will like to see made to the composition and administration of the EFCC. Each suggestion represents a criticism of the status quo.

The Act establishing EFCC should be amended to remove the requirement that one must attain the rank of an assistant commissioner of police or equivalent to be considered for the position of chairman of EFCC. There is no evidence that an assistant commissioner of police or equivalent possesses a level of analytical, investigative and prosecutorial skills, criminal administration, public policy, decorum, ethical standards and intelligence that cannot be found in other professionals. Leading investigative agencies in the world, including the FBI and CIA, have been headed by lawyers from outside the agency although other professionals have also done great jobs. My take on this requirement is that those who drafted and passed the EFCC Act into law deliberately included the assistant commissioner of police or equivalent requirement to ensure that whoever is appointed to that position is already compromised. Is there anyone out there as an assistant commissioner of police and above or equivalent who is not corrupt or compromised? I challenge anyone to draw my attention to any.

The leadership of EFCC should consist of people with provable sound academic background and experience. They must have a holistic understanding of the pervasive nature of corruption in the country, the workings of the web of corruption in which public officials, bankers, law enforcement agencies and other institutions and individuals connive to loot and hide public resources, contemporary criminal investigations and prosecutions techniques, a clear understanding of the aims and objectives behind the anti-corruption laws and  ways to achieve the objectives, and clear cut plans to deal with the problems posed by corrupt judges and lawyers rather than routinely blaming the courts and lawyers. EFCC is set up to fight corruption, including corruption among judges and lawyers! If judges and lawyers are corrupt, you either go get them or keep quiet.
EFCC operatives should be made up of the best men and women that this country can produce. Their selection should be by way of an open and rigorous process. They must be well trained and reasonably compensated as civil servants. They and the leadership must be subjected to stringent financial disclosures to be updated at frequent intervals like twice a year. Financial disclose must include bank account balances, loans, and repayments, real estate/landed property, assets in which they have a beneficial interest, businesses, children’s school fees,  spouses employment, income, and assets, etc. The information so collected must be given the highest protection and should only be disclosed under a court order.
The EFCC should have an elite unit that monitors and keeps its leadership and operatives under constant surveillance. Any leader or operative within the agency caught to be corrupt, living above their means or engaged in influence peddling should be summarily suspended and assets frozen pending the conclusion of their criminal prosecution which should be swift and decisive. Upon suspicion of espionage and corruption, Aldrich Ames, the former CIA counter intelligence officer now serving a light sentence without parole for spying for the USSR and Russia was secretly followed around the world by CIA agents, including when he went visiting his in-laws in Colombia before he was arrested, prosecuted and convicted. The watcher needs to be watched.

The EFCC should criminally charge banks and financial institutions that bent and bend laid down banking rules to facilitate the looting of our treasury, including account officers attending at a private residence or offices to open bank accounts for officials and big men/women and thereafter accepting huge cash amounts for onward deposit upon returning to the bank. These are clear violations of banking rules, and the banks need to be punished. The U.S. fined HSBC $1.9 billion for money laundering and BNPP Paribas $9 billion for violating sanctions against Cuba, Sudan, and Iran. Agreeing to testify against an accused should only lower the sentence of these collaborators, not eliminate it or bar prosecution. They should be charged along with the accused persons and the lower sentence in exchange for testifying against the accused should be within the framework of their ongoing criminal prosecution.

In light of unverifiable claims of hundreds of convictions secured by the agency, it should publish on its website all cases it has prosecuted and still prosecuting, the names of the suspects, the laws violated, the charges laid, punishment sought, the judge handling the case, and the outcome of each case or the stage of prosecution. It should also disclose if there were any appeals and the outcome. This will provide members of the public and researchers access to information that can be used to judge the authenticity of the agency’s claims regarding convictions, enable researchers and analysts create a pattern of how certain judges decide certain cases, and draw attention to cases that appear to have been abandoned or compromised.

The EFCC should have a weekly press conference where journalists are briefed on the agency’s activities, and it can be questioned on corruption related developments, ongoing cases, recent decisions and in-the-news corruption revelations, etc. The present situation where Wilson Uwujaren operates out of a mobile phone that is shut off when he does not want to answer questions is not satisfactory. Nigerians have a right to know what the EFCC is doing, and the EFCC has an obligation to comply. Also, the agency should have a well-staffed and trained reception that takes inbound calls and directs whistleblowers to an intake officer swiftly. I do not want to hear about funding because any money spent on these issues will yield a million times the value in recoveries.

The current 2.5%-5% reward for whistleblowers should be increased to 10% and the mechanics streamlined. I have always believed that ordinary Nigerians know where the thieves are hiding the looted funds and assets and can help the government find them if you provide them with incentives and protection. This belief is vindicated by the fact that less than two months after the federal government announced the current whistleblower reward program, it has already recovered $151 million and N8 billion. I dare say this is a tip of the iceberg. The reward should be raised to 10% to encourage whistleblowing when the amount is not too large, and 2.5%-5% does not provide sufficient incentive.

A lot of the monies looted from Nigeria reside outside the country with considerable amounts in Europe, United States, and Canada. Many Nigerians occupy sensitive positions within the banking system in these countries and are in a position to know about stolen monies kept in their institutions. Ordinary Nigerians in these countries know a property that was purchased by stolen money and can report these cases to EFCC. Because these people do not trust the EFCC but will trust a lawyer licensed in their jurisdiction to protect their identity, the agency should enter into agreements with law firms to handle these cases and get say 25% of recoveries, 10% to whistleblower and 65% to the government. No upfront payments! For those who will argue that 25% is too much, please tell me how much the government will get if the whistleblowers chose to say nothing.

The EFCC must take the initiative in identifying and investigating corruption and not wait for petitions. While citizens have an obligation to help government fight crime (assuming the government is honest in that pursuit) but there is nothing in the country’s anti-corruption laws stipulating that a person who provides the EFCC with a lead must also provide the evidence before the agency can commence investigations.

Since the agency has recently come to the realization that it can rely on civil forfeiture laws to swiftly seize assets accumulated beyond a person’s legitimate income, it should expand its reach. A simple drive around Abuja, Lagos, Port Harcourt, Warri, Benin City, Kano, Kaduna and many other major cities in Nigeria will reveal houses valued in the hundreds of millions and billions of Naira. EFCC should pull the ownership of any of these properties valued over N100 million from the relevant land registry, match it to a Bank Verification Number of the owner and obtain a court order, if necessary, to obtain the owner’s tax filings with the Federal Inland Revenue office. Gbam! Once the tax filings cannot reasonably explain the ownership of such property it should be swiftly seized under the civil forfeiture laws. This exercise will provide us with enough money to fund our N7 trillion plus budgets for a couple years. But I stop to laugh here. Magu, if he is reading this article,  must be cursing me thinking that I am asking him to commit suicide because the houses in this category belongs to former heads of states, governors, ministers, bank officials etc. To him I say “did you lie when you said everyone is equal before the law?”