Statement of the Patron of the TMF, Thabo Mbeki, at the EFCC-hosted 8th Conference of the Heads of Anti-Corruption Agencies in Commonwealth Africa: Abuja, Nigeria: 14 May, 2018.

Mr Ibrahim Magu, Acting Executive Chairperson of the EFCC and other leaders of the EFCC,

Distinguished Heads of other African Anti-Corruption Agencies,

Representatives of the Commonwealth Secretariat,

Honourable delegates,

Friends, ladies and gentlemen:

First I would like to thank the Economic and Financial Crimes Commission of the Federal Republic of Nigeria for inviting me to address this important Conference.

I fully support the decision that was taken to focus the attention of the Conference on the matter of “Partnering towards Asset Recovery and Return”.

This has to do with at least two matters which are:

– the challenge we face as a Continent successfully to address the corrosive problem of corruption; and,

– our task to ensure that our Continent mobilises our domestic resources to enable us as Africans to achieve the objectives detailed in the AU Agenda 2063 and Agenda 2030, or the UN Sustainable Development Goals.

I therefore trust that, in addition to discussing the technical details relating to the overall theme of the Conference, which you have to do, you, honourable delegates, will also discuss the larger issues I have mentioned.

I believe that this is particularly important given the fact that the January 2018 30th Ordinary Assembly of the African Union took the very important decision to dedicate this year to the Struggle to Eradicate Corruption!

In this context I must note that our Conference is being held in Abuja, after the AU Assembly I have mentioned gave a special responsibility to H.E. Muhammadu Buhari, esteemed President of the Federal Republic of Nigeria, to lead the AU offensive against Corruption as defined in the context of the AU Year of Struggle against Corruption!

There is a simple proposition which informs the decision and the actions to “recover and return assets”.

That proposition is that:

  • there are some in our countries who succeed to steal public resources and to export these to other countries;
  • these are people who occupy sufficiently senior positions in Government to give them the possibility to carry out these two operations;
  • there exist some jurisdictions internationally which are ready and willing to receive these stolen public resources;
  • we, as Africans, have a legitimate right to intervene with these jurisdictions, which agree with us in this regard, thus to ensure the return to our countries of the stolen national assets; and,
  • there are internationally agreed and mandated procedures accepted both by the countries which export the corruptly acquired resources and those which receive these resources, thus to ensure full cooperation between the ‘exporting and receiving counties’ to facilitate the ‘recovery and return’ of such resources.

We are meeting today at this 8th Conference of the Heads of Anti-Corruption Agencies in Commonwealth Africa among others to address the important detailed matters you have identified of:

  • international cooperation in the recovery of assets;
  • imperatives of return of assets to countries of origin;
  • non-conviction based asset forfeiture;
  • framework for the management of forfeited and returned assets; and,
  • the whistle blowers policy as a viable tool in the recovery of assets, etc.

I am certain that all of us will agree that all of these matters, which have been correctly identified, remain matters that occupy the technical plane or sphere, rather than the strategic, in the context of our mandates as African Anti-Corruption Agencies.

As I have said, the January 2018 African Union 30th Ordinary Assembly of Heads of State and Government dedicated this year to the fight against corruption under the theme: “Winning the fight against Corruption: A Sustainable Path to Africa’s Transformation”.

In this context we will recall the words of the then Secretary General of the United Nations, the Hon Kofi Annan, when he introduced the UN Convention against Corruption (UNCAC) in 2004. He wrote:

“Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organised crime, terrorism and other threats to human security to flourish. This evil phenomenon is found in all countries—big and small, rich and poor—but it is in the developing world that its effects are most destructive.

“Corruption hurts the poor disproportionately by diverting funds intended for development, undermining a Government’s ability to provide basic services, feeding inequality and injustice and discouraging foreign aid and investment. Corruption is a key element in economic underperformance and a major obstacle to poverty alleviation and development…”

I am also certain that we are familiar with the observations contained in the African Union Convention on Preventing and Combating Corruption (AUCPCC) which came into force in 2006.

Among others this Convention said it was “concerned about the negative effects of corruption and impunity on the political, economic, social and cultural stability of African States and its devastating effects on the economic and social development of the African peoples.”

It “(acknowledged) that corruption undermines accountability and transparency in the management of public affairs as well as socio-economic development on the continent.”

It (recognised) “the need to address the root causes of corruption on the Continent, convinced of the need to formulate and pursue, as a matter of priority, a common penal policy aimed at protecting the society against corruption, including the adoption of appropriate legislative and adequate preventive measures…”

When H.E. President Muhammadu Buhari addressed the 30th AU Ordinary Assembly on January 27th this year, speaking as the Champion of the African Year against Corruption, he said:

“Corruption and its effects have many sides. It poses real threat to national security, unity and survival of the African State and people. The African Union Agenda 2063, under Aspiration 3 recognizes that corruption erodes the development of a universal culture of good governance, democratic values, gender equality, respect for human rights, justice and the rule of the law…

“Strong institutions are a necessary condition in any society which aims to fight corruption. In building strong national and regional institutions, we must adequately empower our national anti-corruption agencies and insulate them from political influence. We have to encourage increased institutional collaboration between Law Enforcement Agencies and anti-corruption Agencies in order to win this fight.”

Distinguished delegates:

I am raising this matter of the need further to intensify the fight against corruption as a strategic task exactly in the context of the subject of this important Conference, namely, “Partnering towards Asset Recovery and Return”.

I say this because, obviously, the matter of the recovery and return of assets would not arise in a situation in which we would have won the fight against corruption!

Practically I am therefore suggesting that we, as Anti-Corruption Agencies, should:

  • take advantage of the fact that 2018 is Africa’s Year against Corruption to elaborate and lead strong public campaigns to combat corruption;
  • work to ensure that all our African countries domesticate both the UN and the AU Conventions against Corruption;
  • build a vibrant partnership among ourselves to share experiences about how best to win the fight against corruption; and,
  • join the African Champion against Corruption, President Buhari, in his campaign to ensure that (i) we have strong Anti-Corruption Agencies, that (ii) these Agencies are independent, capable of acting without fear, favour or prejudice, and that (iii) there is strong institutional cooperation between the Anti-Corruption Agencies and the Law Enforcement Authorities.

As I have said, we must position the matter we have met to discuss, Asset Recovery and Return, not only within the broader context of the struggle against corruption but also within the important objective of domestic resource mobilisation to achieve the objectives contained in the AU Agenda 2063 and the UN Agenda 2030.

The July 2015 third International Conference on Financing for Development meeting in Addis Ababa made important commitments concerning the matter of domestic resource mobilisation. It said:

“For all countries, public policies and the mobilisation and effective use of domestic resources, underscored by the principle of national ownership, are central to our common pursuit of sustainable development, including achieving the sustainable development goals. Building on the considerable achievements in many countries since Monterrey, we remain committed to further strengthening the mobilisation and effective use of domestic resources…Good governance at all levels and democratic and transparent institutions responsive to the needs of the people, are necessary to achieve our goals. We will strengthen our domestic enabling environments, including the rule of law, and combat corruption at all levels and in all its forms.”

I would like to believe that this important Conference will readily agree with this view, including the elements which relate to the importance of good governance and the need to combat corruption as these relate to the task of ‘the mobilisation and effective use of domestic resources’.

In my Foreword to the Report of the High Level Panel on Illicit Financial Flows from Africa I said:

“In the light of…analysis (by African Finance and other Ministers), it became clear that Africa was a net creditor to the rest of the world, even though, despite the inflow of official development assistance, the continent had suffered and was continuing to suffer from a crisis of insufficient resources for development.

“Very correctly, these considerations led to the decision to focus on the matter of illicit financial outflows from Africa, and specifically on the steps that must be taken radically to reduce these outflows to ensure that these development resources remain within the continent. The importance of this decision is emphasised by the fact that our Continent is annually losing more than $50 billion through illicit financial outflows…”

Relevant to the theme of our Conference, and in comparison to the foregoing, the Asset Recovery Handbook published by the World Bank in 2011 said:

“Developing countries lose between US$20 to US$40 billion each year through bribery, misappropriation of funds, and other corrupt practices. Much of the proceeds of corruption find “safe haven” in the world’s financial centers.”

In addition the document Few and Far – The Hard Facts on Stolen Asset Recovery: 2017, prepared jointly by the World Bank/UNODC Stolen Asset Recovery (StAR) Initiative and the Organisation for Economic Co-operation and Development (OECD), painted a bleak picture when it said:

“Ultimately, a huge gap remains between the results achieved and the billions of dollars that are estimated stolen from developing countries. Only US$147.2 million was returned by OECD members between 2010 and June 2012, and US$276.3 million between 2006 and 2009, a fraction of the $20–40 billion estimated to have been stolen each year.”

What all this says is that – yes indeed the developing countries as a whole do lose the kind of resources which are identified in terms of the internationally accepted Asset Recovery and Return programmes.

However two matters stand out in this regard. These are that:

  • illicit financial outflows constitute by far the largest amounts of resources wrongly exported out of Africa; and,
  • over the years the Asset Recovery and Return programmes have returned to the developing countries pitifully small amounts of the stolen assets.

I suggest that this Conference should draw at least two conclusions from this reality.

One of these is that we, as African Anti-Corruption Agencies, must pay very serious attention to the matter of what we should do to contribute to the fight to end the illicit financial outflows, including the return of these billions.

In this regard I seriously hope that you will share experiences about what should be done, act on this, and contribute to the preparation of the annual reports that must be submitted to the AU Assembly concerning what each of the Member States of the Union are dong to combat the Illicit Financial Outflows.

The second of these conclusions is that is that we, as the African Anti-Corruption Agencies, must do what we can significantly to improve the effectiveness of the globally agreed Asset Recovery and Return programme.

We have convened here under the auspices of the Economic and Financial Crimes Commission of the Federal Republic of Nigeria exactly to do this. With your permission I will now make a few remarks on this matter which I trust you will find useful.

I am certain that all of us will agree that the matter of the Recovery and Return of Assets, as discussed, for instance, in the UN Convention Against Corruption, has been discussed internationally quite extensively.

Accordingly, there exist many detailed and generally accepted proposals about what must be done to achieve the variety of agreed objectives relating to the important issue of Asset Recovery.

It is therefore obvious that in this regard there is no need ‘to invent the wheel’, to borrow a popular expression, especially as this relates to the required interventions to facilitate the process of Asset Recovery and Return.

The ‘Few and Far – The Hard Facts on Stolen Asset Recovery: 2017’ StAR and OECD document we have cited also says that one of its Key Findings was that:

“For the majority of OECD members, there is a disconnect between high-level international commitments and practice at the country level. Fourteen of the 34 OECD members did not respond to the StAR survey at all, and of those that responded, most reported very little progress. Experience has demonstrated that where such lack of interest and low-priority treatment extend to ineffective laws or institutions, criminals will exploit those vulnerabilities to launder corruption proceeds.”

In this regard the same document makes the important observation that:

“Countries with established asset recovery policies and solid legal and institutional frameworks continue to achieve success in returning the proceeds of corruption. Only three OECD members—Switzerland, the United States, and the United Kingdom—have repatriated corruption proceeds in both reporting periods. All three countries have high-level policies, a wide range of asset recovery tools available, and dedicated teams working on asset recovery cases. Where barriers are encountered, new laws or creative solutions are sought to overcome them.”

Yet another Key Finding detailed in the same document makes the very important observation that:

“The legal avenues and powers used most successfully to freeze and return assets were not the “traditional” ones. Administrative actions were introduced to freeze assets rapidly, and more jurisdictions proactively initiated their own investigations, rather than waiting for a request from the jurisdiction of the corrupt official. Non-conviction based confiscation, court-ordered reparations and restitution, and settlement agreements were used to return more assets than was criminal confiscation – commonly thought to be the main legal avenue for asset recovery.”

What I have just said means that actual lived experience with regard to the matter of Asset Recovery communicates at least two very important messages.

One of these is that many of the recipient countries of the Stolen Assets have failed to put in place, in their countries, the necessary legislative, institutional and other mechanisms which would facilitate the Recovery and Return of such Assets.

The second of these messages is that whereas, historically, the Asset Recovery process has been based on the understanding that criminal confiscation would have to precede such Recovery of Stolen Assets, it is in fact possible to achieve better and speedier Recovery and Returns by using ways and means which do not require ‘criminal confiscation’.

Of course all of us know that the matter of ‘criminal confiscation’ arises because it has been exactly this assumed imperative to achieve ‘criminal confiscation’ which has frustrated many efforts actually to achieve the Recovery and Return of Stolen Assets, even when the evidence and publicly available information in this regard were immediately available!

I would like to believe that all or many of us present at our Conference here in Abuja attended the important and inclusive December 2017 USA Washington D.C. Global Forum on Asset Recovery.

That Global Forum adopted Principles that would Promote Successful Asset Return.

The Global Forum identified ten (10) such Principles!

With regard to everything I have just said, I would like to draw your attention to two (2) of these Principles. These say:

Principle 1: Partnership. It is recognised that successful return of stolen assets is fundamentally based on there being a strong partnership between transferring and receiving countries.

Principle 2: Mutual interests. It is recognised that both transferring and receiving countries have shared interests in a successful outcome.

It is important that this Conference endorses these two Principles and take the necessary decisions to ensure their implementation globally.

Humbly, in addition to everything I have said, and to conclude my remarks, I would like to suggest that our Conference pays particular attention to five Recommendations contained in the OECD and StAR Initiative document I have cited, ‘Few and Far: The Hard Facts on Stolen Asset Recovery: 2017.’

The first of these Recommendations says – “Obtain a high-level commitment to asset recovery. Both developed and developing countries need to adopt and implement comprehensive strategic policies to combat corruption and recover assets. For their part, development agencies need to establish asset recovery as a priority in their strategic planning.”

The second says – “Provide the necessary resources. Adequate funding is needed to support asset recovery, including funding for investigations, prosecutions, international cooperation, training of domestic and foreign practitioners, policy development work, and institutions.”

The third advises – “Ensure that a wide range of asset recovery tools are available and used. Both developed and developing countries need to ensure that they have a broad range of mechanisms in place, such as the abilities to rapidly freeze assets, to confiscate in the absence of a conviction, to return assets as part of a settlement agreement, and to reverse or shift the burden of proof.”

And the fourth urges – “Build capacity in developing countries. Asset recovery requires effective investigations in both the requested and requesting countries, and many developing countries may need technical assistance to take such action.”

The fifth urges – “Collect statistics to measure results, and make them publicly available. Statistics on law enforcement activities are essential for showing that countries are fulfilling their high-level commitments; they also help to guide domestic policy development, resource allocation, and strategic planning.”

I thank you for your attention and wish this important Conference success.

 

Thank you.

Share Button

Leave a Reply

Your email address will not be published.

our-entities

tmf_bottom_logo

rmpl_bottom_logo

sadet_bottom_logo