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Here's the legislation that spells out new guidelines for the operations of anti-graft agencies in Nigeria

ECONOMIC AND FINANCIAL CRIMES COMISSION

(ESTABLISHMENT) ACT

(2004 No.1)

 

Economic and Financial Crimes Commission

(Enforcement) Regulations, 2010

 

Commencement

 

            In exercise of the powers conferred upon me by section 43 of the Economic and Financial Crimes Commission (Establishment) Act 2004 and all other powers enabling me in that behalf, I MOHAMMED BELLO ADOKE, SAN, the Attorney-General of the Federation and Minister of Justice hereby make the following Regulations:

 

PART I – OBJECTIVES, APPLICATION AND SCOPE

 

1.         Objectives

            These Regulations are made to provide a procedure for carrying out the mandate of the Commission pursuant to section 43 of the Act and matters related thereto.

2.         Application

            These Regulations apply to the procedure for receiving complaints, initiation of prosecution and related matters.

 

PART II – PROCEDURE FOR RECEIVING COMPLAINTS

3.         Mode of making a complaint

            (1) Every complaint relating to the commission of an offence under the Act shall be made either in writing or orally to an officer of the Commission, and if made orally, shall be reduced into writing and read over to the person making the complaint.

(2)  Every such complaint shall be signed or thumb-printed by the person making it

4.         Endorsement in the case of illiterate

            Where the person making the complaint is an illiterate, the officer receiving the complaint shall endorse that fact on the report together with a statement to the effect that it was read over and interpreted to the maker.

5.         Complaint to be confidential

            Except otherwise authorized in the performance of his duties, an officer of the Commission shall not disclose to any person the contents or substance of a complaint made under Regulation 3.

6          Nothing in these Regulations shall be construed as preventing the Commission from exercising any of its powers under section 7 of the Act

 

PART III – INVESTIGATION

7.         Investigation

            (1) without prejudice to section 41 of the Act, the Chairman of the Commission may in the course of investigating a complaint or an offence under the Act require the attendance of any person for the purpose of  examining that person in relation to any matter which may in the Chairman’s opinion assist in the investigation of the offence.

(2) in conducting an examination under this Regulation the commission shall conform to the requirements of section 35 of the Constitution and for this purpose it is immaterial that no formal arrest has been made

(3) An  authorised officer of the Commission examining any person under the Act shall after due caution, record in writing any statement made by the person and the statement so recorded shall be read over to the maker who on being satisfied that it is a true record of his statement shall sign the same before a superior officer, of the Commission

(4) Where such person refuses to sign the record, the officer shall:

(a)  In the presence of the person, endorse thereon under his hand the fact of such refusal and the reasons stated by the person examined;

(b)  take the person and the record before his superior officer who shall again ask the person to provide reasons for refusing to sign; and if the reasons given are the same with the reason recorded by the officer the superior officer shall endorse the record by signing.

(5)  Where a person who is taken to a superior officer in accordance with paragraph (4) of this Regulation, disputes the reason recorded as responsible for his refusal to sign the record, the superior officer shall direct another officer to record a fresh statement in accordance with paragraph (3) of this Regulation.

 

(6) any person who records any statement made by a person who is an illiterate shall also write on such document his own name and address as the writer of the document;

 

10.       Report of results of investigation in certain cases

            (1) Where the Commission conducts investigation in respect of a case or complaint which is serious or complex it shall forward to the Attorney-General the  outcome of the investigation with its recommendations on whether there are sufficient grounds to initiate prosecution

 

(2) For the purpose of these regulations a case or complaint is serious or complex  if the case or complaint:

(a)  has a significant international dimension;

(b)  involves money or assets of a value exceeding N50 million

(c)  requires specialised knowledge of financial, commercial, fiscal or regulatory matters such as the operation of markets, banking systems, trusts or tax regimes;

(d)  involves allegations of fraudulent activity against numerous victims;

(e)  involves substantial and significant loss of funds by a Ministry or Department or a public body;

(f)  is likely to be of widespread public concern; or

(g)  involves an alleged misconduct which amounts to an act of economic sabotage

11.       Preparation of quarterly report

            The Commission shall prepare quarterly reports of its activities pursuant to its mandate and such other statistical information relating to those activities as the Commission considers appropriate.

 

PART IV – ARREST AND GRANTING OF BAIL

 

12        Granting of bail to suspects

(1)        Any person arrested who is not released on bail shall without unreasonable delay and in any case within twenty-four hours (excluding the time for the journey) be arraigned before the court.

 

      Compliance with legislation on bail

(2)        The Commission shall comply with all laws relating to the arrest and granting of bail to suspects.

 

PART V – ENTRY, SEARCH, INSPECTION, SEIZURE, FORFEITURE

AND DISPOSAL OF PROPERTY

 

13.       Obtaining of court orders

            The Commission shall apply and obtain a court order to enter and search any premises, seize and take possession of any book, document or other articles evidencing the commission of an offence under the Act.

14.       Obtaining of a warrant

            An officer of the Commission exercising the power pursuant to regulation 13 of these Regulations, shall obtain a warrant from a judge or magistrate to do the following –

 

(a)        break open any outer or inner door or window of any premises and enter thereto, or forcibly enter the premises and every part thereof.

 

(b)        remove by force any obstruction to such entry, search seizure, seizure or removal as he is empowered to effect;

 

(a)        detain any person found in or any premises in any conveyance searched pursuant to regulation 13, until the premises or conveyance has been searched.

15.       Searching a suspect

            No person shall be searched except by a person who is to the same gender as the person to be searched.

16.       Freezing of account and assets

            Account or assets of any person or body corporate can be frozen or confiscated after obtaining an order from a court of competent jurisdiction.

17.       Forfeiture of asset

            A copy of every final order for forfeiture of a convicted person, shall be forwarded to the Attorney-General of the Federation by the Commission.

18.       Valuation and disposal of forfeited asset

            (1)        The Commission shall in disposing forfeited assets or proceeds thereof be subject to the supervision of the Attorney-General of the Federation.

            (2)        The Commission shall before disposing a forfeited asset appoint a valuer recognized by a relevant professional body who shall undertake a valuation of the asset or property

 

            (3)        Upon valuation of any forfeited asset or property the Commission shall forward a copy of the valuation report duly authenticated by an appointed valuer with its recommendation of the disposal of such property or asset to the Attorney-General of the Federal.

            (4)        No disposal of any forfeited assets or property shall be carried out without such property being advertised in at least two newspapers with national circulation in Nigeria.

            (5) Where an appeal is pending the Commission shall not dispose of or release any asset or property ordered to be forfeited, or frozen or confiscated pursuant to the Act.

 

PART VI – PROSECUTION OF CASES

 

19.       Grounds for prosecution

(1) At the close of any investigation into a matter the Commission shall determine whether in the light of the investigation:

(a)   there is evidence which in the Commission’s opinion is sufficient to support the allegation against the suspect ; and

(b)   the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest

 

(2) Where in any particular case the Commission is unable to determine whether or not a prosecution is in the public interest, it shall seek the advice of the Attorney-General of the Federation .

 

20.       Preparing a charge or information

 The Commission shall in preparing charges consider the need to :

a)   reflect the seriousness and extent of the criminality supported by the evidence;

b)   furnish the court with sufficient information to enable the court arrive at an appropriate decision; and

c)   enable the case to be presented in a clear and simple way.

           

21.       Delegation of powers by the Attorney-General of the Federation

            The Attorney-General of the Federation may designate Legal Officers from his office to work in the Commission for the purpose of facilitating the prosecution of the Commission’s cases.

 

PART VII – PLEA BARGAIN

22.       Entering of plea bargain

            (1) No officer of the Commission shall enter into a plea bargain discussion with an accused person without the prior knowledge and approval of the Attorney-General of the Federation. An agreement made pursuant to such discussions shall be subject to the Attorney General’s approval

            (2) Where before trial or in the course of trial the accused proposes or signifies readiness to plead guilty to a lesser charge as part of a plea bargain agreement, the Commission shall before entering discussion leading to such agreement  –

(a)  be satisfied that the plea bargain will enable the court to pass a sentence that matches the seriousness of the offence taking into account other aggravating features;

(b)  consider the public interest and in particular the interest of the victim of the offence if any.

(3) Without prejudice to paragraph (1) of this Regulation, where the discussion leads to a plea bargain agreement, the agreement must be reduced into writing as a plea agreement, signed by both parties and including:

(a)  A list of the charges;

(b)  A statement of the facts; and

(c)  A declaration, signed by the defendant personally, to the effect that he or she accepts the stated facts and admits he or she is guilty of the agreed charges.

 

(4) When seeking the approval of the Attorney General for an agreement referred to in paragraph (3) of this Regulation the Commission  shall send with the request:

(a)  The signed plea agreement;

(b)  A joint submission as to sentence and sentencing considerations;

(c)  Any relevant sentencing guidelines or authorities;

(d)  All of the material provided by the Commission to the accused in the course of the plea discussions;

(e)  Any material provided by the accused to the Commission; and

(f)  The minutes of any meetings between the parties and any correspondence generated in the plea discussions.

 

PART VIII – PETITION

23.       Appeal against the Commission

            Where there is an appeal or petition to the Attorney General of the Federation on the conduct of the Commission a copy of such petition shall be sent to the Commission and the Attorney-General of the Federation may direct that the relevant case file, if any,be forwarded to him for examination.

 

PART IX – FOREIGN AID AND GRANTS

24.       Informing the Attorney-General of the Federation of all foreign aid and grants

            The Chairman of the Commission shall within 30 days of the signing or receipt of any foreign aid or grant inform the Attorney-General of the Federation of such aid or grant with details of the terms and conditions of the grant or aid

 

 

 

PART X – GENERAL

 

25.       Sanctions for breach

            Any person who contravenes any of the provisions of these Regulations is liable to the sanctions provided under any law or pursuant to Staff Regulations made under the Act

26.       Interpretation

            (1)        The terms and expressions defined in Act shall have the same meaning in these Regulations and also in these Regulations, unless the context otherwise requires –

 

“Act” means the Economic and Financial Crimes Commission (Establishment) act, 2004 and any succeeding legislation thereto;

            “asset” means any movable or immovable property; 

            “Commission” means the Economic and Financial Crime Commission;

            “complaint” means written and oral report of an offence under the Act.

 

            (2)        Where in these Regulations the context so requires, words in the singular include the plural and words in the plural include the singular.

 

27.       Citation

            These regulations may be cited as the Economic and Financial Crime Commission (Enforcement) Regulations 2010.

 

 

MADE   at Abuja this                               day of                                  2010

 

 

 

 

 

 

 

MOHAMMED BELLO ADOKE, SAN

Attorney-General of the Federation

And Minister of Justice

 

 

 

 

 

 

EXPLANATORY NOTE

 

(This note does not form part of the above regulations but

 is intended to explain its purport)

 

 

 

 

            The Regulations provide for a procedure and process for enforcing and implementing the mandate of the Economic and Financial Crimes Commission in the whole or any part of Nigeria.