Theft of public assets in developing countries and the ineffective legal frameworks on cross-border asset tracing and confiscation

Williams C Iheme

doi:10.22495/jgrv10i2siart11

Abstract

In most developing countries with weak rule of law and fledgling democratic institutions, theft of public assets by public office holders is rampant and has a strong correlation with the excruciating level of poverty and underdevelopment that besiege these countries (Ijewereme, 2013). While a myriad number of reasons may be responsible for this situation, the absence of a mature legal framework as well as the scant availability of sufficiently trained government personnel to trace and recover stolen assets, hidden domestically and abroad, arguably remain contributory factors. Granted that corrupt public office holders are typically enabled by porous (domestic) legal frameworks that provide them wide escape routes for their crimes, contestably however, the laws bordering on confiscation of assets in many foreign countries (safe havens) seem intentionally designed to frustrate any recovery of stolen assets by developing countries. In the aftermath of the COVID-19 pandemic, the rate of stealing public assets by public office holders in developing countries is foreseen to rise astronomically and is likely to deepen their existing levels of poverty and hopelessness (Ayode, 2020). Using Nigeria as an example of a developing country, the paper critically examines the underlying defects in the cross-border legal framework on asset recovery and confiscation and proffers suggestions on how these defects could be remedied.

Highlights

Theft of public assets by public office holders in Nigeria and many other developing countries is indisputably rampant and destructive to their fledgling economies
Through a comparative analysis of the Nigerian and United Kingdom (UK) legal frameworks, the paper reasonably establishes the suitability of the UK approach — the reverse burden of proof under its Unexplained Wealth Order (UWO) regime, which disregards the established procedure in the law of evidence which normally imposes the burden of proof on a person that alleges the existence of a fact: under Nigerian criminal law, the prosecutor bears this burden by proving alleged guilt of the offender beyond a reasonable doubt
Based on the foregoing discourse, this paper argues that owing to the difficulty posed by the mainstream legal framework on tracing and recovery of assets located abroad by developing countries, the UK UWO regime remains arguably an efficacious legal framework for these developing countries due to its reverse burden of proof system that has the potential to boost the chances of recovering stolen assets by public office holders by making them assume the burden of proving their innocence

Summary

Introduction

Theft of public assets by public office holders in Nigeria and many other developing countries is indisputably rampant and destructive to their fledgling economies. This paper claims or reasonably fears that owing to the corrupt nature of many Nigerian politicians, the economic effects of the pandemic might cause these politicians to become more desperate towards looting and hiding public assets in countries that have intentionally designed porous legal frameworks on money laundering as a measure to encourage foreign deposits and safekeeping of stolen wealth. For the countries christened as ―safe havens‖, the incentive to maintain a lax enforcement attitude toward money laundering laws relates possibly to the indirect financial supports these stolen assets offer to their economies, enabling them to provide credit to their citizenry (consumers and businesses) at low-interest rates: this will worsen the already impoverished condition of Nigeria and other developing countries and create an upsurge in the economic migration of their citizens to other countries. The question remains: What exactly should be done to enhance the cross-border legal framework in Nigeria for example, in order to increase the success rate of recovering stolen assets by public officials?

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