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How Nigeria Can Leverage CAPAR For Recovery Of Looted Fund

Oluwasina Phillip

For many years, Nigeria and other African countries have witnessed the consignment of huge proportions of their resources to foreign jurisdictions without appropriate compensation and returns.

According to the Commonwealth Secretary-General, Rt. Hon. Patricia Scotland, the need for African countries to tackle corruption has become compelling as it leads to illicit financial flows making the continent to lose over $1.26trn.

The term Illicit Financial Flows refers to financial flows that are illegal either by virtue of their origin which could be in the form of organised crime, their utilisation in financing terrorism or the nature of the transfer itself such as money laundering.

The effects of IFFs are particularly devastating for developing countries and are increasingly undermining international efforts to promote sustainable development.

Undoubtedly, criminal activities associated with IFFs, such as human trafficking or the illegal trade in drugs, destabilise countries and regions and thus increase the risk of violent conflicts.

The think tank group, Global Financial Integrity, estimates that developing countries and emerging economies lose more money through illicit financial outflows than they receive in foreign direct investment and official development aid combined.

IFFs therefore prevent countries from making urgently needed investments in health, education and other public services.

Not only do countries lose resources, but their success in preventing ‘dirty money’ from entering the financial system also determines their access to international finance.

Worried by this development and in a bid to ensure that Africa gets better deals from looted funds and leverage its resources for inclusive and sustainable growth, a forum was held at the sidelines of the 9th Conference of the States Parties to the United Nations Convention Against Corruption in Sharm El Sheikh, Egypt.

The forum, an hybrid event (Physical and Virtual) attended by representatives of African Governments, was organized by the Independent Corrupt Practices and Other Related Offences Commission (ICPC) in collaboration with African Union Advisory Board on Corruption (AUBC) and Collation for Dialogue.

The event titled “Understanding and Implementation of the Common African Position on Assets Recovery,” and targeted at kick-starting new alliances, partnerships and collaborations towards successful implementation of the CAPAR was chaired by the Chairman of ICPC, Prof Bolaji Owasanoye; while Ambassador Bankole Adeoye, Commissioner for Political Affairs, Peace & Security, AU Commission delivered the opening statement.

Statements were also made by Mr. Issaka Garba Abdou of the Department of Political Affairs, Peace & Security AUC; Madame Seynabou Ndiaye Diakhate, Vice Chairperson, AUBC Advisory and Ms Souad Aden- Osman, ED, Coalition for Dialogue on Africa.

Speaking at the event, Adeoye said that for many years, African countries have witnessed the consignment of huge proportions of their resources to foreign jurisdictions without appropriate compensation and returns.

As a continent with valuable resources, the AU Commissioner for Political Affairs, Peace & Security said Africa deserves better deals and should be able to leverage its resources for inclusive and sustainable growth.

However, he lamented that this will never be possible if the continent continues to allow its resources to be taken out without due compensation.

He said, “Sometimes these assets are recovered and seized by foreign governments but are not repatriated to their countries of origin. Such practice is counter-productive, as these assets are used to fund foreign economies to the detriment of the real owners.

“It is for this reason that the Assembly of African Union Heads of State and Government in their 33rd Session in February 2020, endorsed the CAPAR to guide African countries in the recovery and management of stolen assets.”

He described CAPAR as a critical platform that will help in stemming or reversing illicit financial flows from Africa and help in the recovery and return of assets within a contextualized historical, political, economic, and social narrative.

The CAPAR sets out recommended measures and actions required to effectively address the continuous loss of African assets and to effectively identify, recover and manage African assets that are in, or recovered from, foreign jurisdictions, in a manner that respects the development priorities and sovereignty of African Union Member States.

The CAPAR has four pillars, which highlight priorities for asset recovery in Africa. The four pillars are detection and identification of assets, recovery and return of assets, management of recovered assets, and cooperation and partnerships.

Adeoye told participants at the forum that already, the four pillars have been endorsed and is now an official instrument that must be implemented.

However, he noted that unless stakeholders raise awareness about it, many people will not know that it exists and may not know how to interpret and use it.

He added, “We have therefore organized this event to raise awareness, discuss and increase understanding of the CAPAR. We also, through this event, would like to seek your opinions on how best to support countries in implementing this very important instrument.

“Through consultations and dialogues like this one, concerned authorities and individuals will know what to do with the CAPAR and we will be able to get the needed support and commitment for its implementation.”

Also speaking during the panel session, Abdou said CAPAR will address the issue of loss of African resources and assets over the centuries, adding that estimates of Africa’s losses to IFFs makes Africa a net creditor to the rest of the world.

He explained that IFFs and illicit consignment of African assets to foreign jurisdictions would continue to inhibit Africa’s development goals and aspirations, post-2015 agenda and agenda 2063 unless action is taken by the global community and AU member states to ensure that Africa’s voice is heard and fully recognized in the shaping of global ecosystem of asset recovery.

He called for sensitization at national, regional and global levels on the CAPAR, engagement of stakeholders relevant to the success of CAPAR as well as implementation of the policy recommendations of the CAPAR.

In his presentation, Stephen Karangizi who is a Former Director and CEO, African Legal Support Facility said African States are unable to consistently pursue the recovery of their assets due to several factors.

He said often time, the transferee States make an effort to dictate how the assets should be used, adding that lengthy recovery efforts could also lead to erosion of the value of the assets.

To address these challenges, Karangizi called for institutional collaboration at national level to identify assets – tax, accounting, customs, banking, and beneficial ownership.

He also advocated more legal and institutional collaboration between the Governments of transferor and transferee countries, stating that there is need to fast track commercial/criminal cases to enforce recovery of the assets while harmonizing laws and penalties across participating countries.

He also called for the creation of an African Fund where the assets are deposited while negotiations are taking place on their ownership and use.

He said, “There is need for Africa to formulate clear policy and legal framework for asset recovery. This could start with guidelines that African countries could follow in the process.

“The policy should cover particularly the management of the assets while they are still being held by third states. Certain initiatives – such at ATAF – Mutual Assistance in Tax Matters should be encouraged.

“High Level AU Committee should lobby for removal of identified secrecy impediments. High Level Committee should lobby for establishment of Neutral body such as AfDB to hold liquid Assets and to value non-liquid assets. Increased capacity building such as purchase of necessary tracing tools, and increase knowledge and advocacy.”

In her presentation at the event, Ms Lilan Ekeanyanwu, Head, Teachnical Unit on Governance and Anti- Corruption Reforms, TUGAR ,Nigeria, spoke about the efforts Nigerian made to recover assets from different Jurisdictions including Abacha’s loot as well as Artifacts.

Some of these, according to her, included putting in place legal framework, utilisation of resources by hiring lawyers and other professionals, seeking international cooperation and also sought the assistance of international Institutions such as StAR initiative and ICAR and sponsoring resolutions on Asset recovery in COSPs.

She said that recovery of stolen is not easy but a result of series of negotiations both formal and informal, resilience and endurance.

Ekeanyanwu stated that Nigeria spent lot of money to recover asset because the country had to hire lawyers and other professionals to navigate the legal process which is sometime complex to achieve.

She disclosed that under the convention, the requested country has the right to deduct administrative cost, adding that this diminished the asset value when it is eventually recovered.

She also mentioned that the requested states also used settlement or no trial resolutions to deny the victims states from recovering asset.

She concluded that due to the conditionalities placed on the recovered asset despite the fact that the convention provides for sovereignty of state parties, Nigeria has used the asset recovered for projects to build trust and confidence that the assets are not re-looted.

At the end of the discussions, it was recommended that there should be a robust clear legal framework and Guidelines/Templates on Asset recovery and creation of register of recovered Asset.

It was also agreed that there is need for engagement of all stakeholders because Asset recovery involves political, economic, legal and diplomacy.

Participants also agreed on the need to build the capacity of small African countries, create awareness and advocacy on CAPAR in Africa as well as seek international cooperation of international institutions and conventions.

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