The Nigerian polity has witnessed a huge wave of media reports on the fight against corruption and terrorism recently. President Muhammadu Buhari made the fight against corruption a key thrust of his campaign and has continued to issue statements that portray him as one who desires to tackle the issue of corruption in the country. To this end, efforts have been made to arrest and charge a number of persons who are alleged to have been involved in corrupt practices particularly in the last administration. Beyond that, there has been a lot of furore with particular reference to the role and stance of lawyers in the fight against corruption.
First, there were efforts to bring legal practitioners under the designated non-financial institutions required to register with the Special Control Unit on Money Laundering (SCUML) of the Economic and Financial Crimes Commission (EFCC) which was challenged successfully in court vide suit No: FHC/ABJ/CS/173/2013 between The Registered Trustees of Nigerian Bar Association and Attorney-General of the Federation and Central Bank of Nigeria. In that case, it was held that legal practitioners should be deleted from s.25 of the Money Laundering (Prohibition) Act 2011. The section defines Designated non-financial institutions as follows:
“Designated Non-Financial Institution” means dealers in jewellery, cars and luxury goods, chartered accountants, audit firms, tax consultants, clearing and settlement companies, legal practitioners, hotels, casinos, supermarkets,or such other businesses as the Federal Ministry of Trade and Investment or appropriate regulatory authorities may from time to time designate”.
By this decision which was delivered on December 17, 2014, legal practitioners are no longer required to register with SCUML just like hotels, jewellers, casino dealers, car dealers etc. It is pertinent to note here that the issue of charging lawyers for money laundering related offence or other corrupt practices is not in contest as several lawyers have had to face charges for suspicious transactions, corrupt or fraudulent practices. The issue that was canvassed in this case is that lawyers, in acting for clients, have a duty to keep information confidential by law and so cannot report to SCUML which is also not recognised as a body which should regulate the profession. A detailed discussion of this case can be found here.
Secondly, President Muhammadu Buhari had the opportunity to address the Nigerian Bar Association (NBA) at its 55th Annual General Conference held in Abuja in June 2015, shortly after his inauguration as President of the Federal Republic of Nigeria. At the event, the President charged lawyers on the task of combating corruption and widespread impunity which have hitherto plagued the nation. There is no doubt that lawyers are expected to be at the forefront of the war against corruption in the country. The reason is that the justice system has a huge role to play in a democratic society to uphold the rule of law and forestall impunity. Lawyers are significant players in the administration of justice and therefore they must be part of any effort to address issues relating to the judicial system.
Thirdly, the EFCC Chairman was recently credited with a statement to the effect that senior lawyers have constituted a hindrance in the fight against corruption. This is apparently due to the fact that the Commission has found it difficult to successfully get convictions against persons charged with money laundering offences. It must be stated that it is the duty of a lawyer to defend his client, especially in an adversarial system of adjudication where the constitution clothes accused persons with the garb of innocence until proven otherwise. Moreover, it is a well-known fact that the burden of proof in criminal matters is an onerous one and lies on the person who accuses another to discharge. This burden must be discharged in such a manner that there is no iota of doubt left as to the guilt of the accused. The essence of this is to ensure that no innocent person is punished or unjustly victimised. All over the world, high profile criminal cases are known to be knotty and that is because the defence lawyer has a responsibility towards the client. It is inequitable for Government agencies such as the EFCC , who themselves are represented in Court by lawyers, to complain, intimidate by any means, or harass lawyers for doing their job of defending clients within the ambit of the law and the ethics of the Profession.
At the recently concluded meeting of the National Executive of the NBA in Jos, Nigeria on February 18, 2016, it was resolved that a Guideline for Anti-Money Laundering and Anti-Terrorism Financing would be introduced in furtherance of the commitment of the NBA to effectively combat corruption. A communique containing this resolution can be found here. It is believed that this step, if successfully implemented would go a long way to demonstrate the stance of the legal profession to the issue of corruption or money-laundering and related offences, thereby restoring confidence in the members of the profession who form a critical part of the justice system. This will go a long way to settle the ‘dust of suspicion’ that has been raised in relation to the disposition of members of the legal profession in Nigeria to the issue of corruption and money-laundering.
Globally, there has been similar challenges regarding how lawyers can effectively contribute in the fight against money-laundering considering their position as professionals who advise clients to whom they owe fiduciary duties. Many jurisdictions have recognised the protection that lawyers enjoy especially with regards to the communications between themselves and clients and how this could conflict with reporting requirements on money-laundering. Accordingly, some jurisdictions have taken steps to provide guidelines to regulate the activities of lawyers with a view to preventing money-laundering related offences. The decision by the NBA is a welcome development as it would provide the needed regulatory oversight by the appropriate body to ensure that lawyers in Nigeria operate their practice in an ethical manner.
Please share your thoughts on this development in the comments section and we’ll be happy to engage.