An Unputdownable Evaluation of the ‘Mutual Assistance In Criminal Matters Act, 2019’

Background

The President of Nigeria signed the Mutual Assistance In Criminal Matters Bill, 2019 (hereinafter referred to as ‘the Act’) into Law to further strengthen and boost the ongoing war against corruption within and outside the country. The Act repealed the Mutual Assistance in Criminal Matters within the Commonwealth (Enactment and Enforcement) Act, 2004.

The new law is meant to obtain from other countries, on reciprocal basis, mutual assistance in the prosecution of criminal matters including the location and identification of suspects, witnesses and other materials for prosecution of criminal matters[1].

The Act is also to ensure the prosecution of offenders in criminal cases whether they are within the country or outside the country. By implication, the new law essentially covers repatriation of persons running away from justice back home for prosecution and recovery of stolen assets. Nigeria is also expected to reciprocate the gesture whenever necessary to those countries in the prosecution of their own cases.

The Act, therefore, seeks to facilitate voluntary attendance of persons in the requesting State, effect temporary transfer of persons in custody to assist in investigations or appear as a witness, identify, trace, freeze, restrain, recover, forfeit and confiscate proceeds, property and other instrumentalities of crime, obtain and preserve computer data, and among others, render assistance not contrary to the law of the requesting State in criminal matters.

HIGHLIGHTS OF THE ACT

Applicability

The Act applies to mutual legal assistance in respect of criminal matters under an agreement or other arrangements between Nigeria and a foreign State.  The Act does not apply to the extradition, rendition, arrest or detention of any person with a view to extradition or rendition. The Act is not applicable with respect to an offence in a foreign State where the offence is:

• not known under any law in Nigeria
• of a political character
• an offence only under a military law or a law relating to military obligation.

Political offences

The provisions of the Act do not apply to offences considered as political offences. Under the Act, the following are not considered political offences:

• an offence against the life or person of a Head of State or a member of the immediate family of a Head of State;
• an offence against the life or person of a Head of Government, or of a Minister of a Government;

• an offence established under any multilateral international treaty to which Nigeria and the foreign State are parties and which is declared in the multilateral treaty concerned not to be regarded as an offence of a political character for the purposes of mutual assistance in criminal matters;
• any attempt, abetment or conspiracy to commit any of the above offences[2].

Designation of Central Authority

For the purpose of enforcement, the  Attorney-General  is designated as the Central Authority for Nigeria and is responsible for making, receiving and transmitting  requests for assistance, executing or arranging for the execution of the requests, negotiating and agreeing on terms and conditions relating to requests for assistance and ensuring compliance with the terms and conditions and doing other things that are necessary for the effective and efficient provision and receiving of assistance under the Act[3]. The Attorney-General communicates directly with the designated Central Authority of any other foreign State unless Nigeria and that foreign State have agreed.

The Attorney-General as the Central Authority has the power to make request of assistance to a foreign state on behalf of Nigeria[4]. Such request must be in writing, dated and signed by the Attorney-General and may be transmitted by electronic or other means. Where he believes that there is a reasonable ground that evidence will be relevant to a criminal investigation, he can request the Central Authority of a foreign State to arrange for the evidence to be taken in the foreign State and delivered to the Central Authority of Nigeria.

As the Central Authority for Nigeria, he may request the Central Authority of a foreign state to assist in securing the attendance of a person from a foreign state to give evidence or render such assistance in criminal trial in Nigeria. Such person whose presence is required in Nigeria must have given his consent to travel to Nigeria for the purpose of giving evidence or rendering assistance.

Immunity and Privileges

A person on request to Nigeria to render assistance or give evidence in a criminal trial is protected under the Act. The Act creates immunity and privileges which include:

• Immunity against detention, prosecution or punishment in Nigeria for an offence that is alleged to have been committed, or that was committed, before his departure from the foreign State pursuant to the request;
• Such person will not be subjected to any civil suit in respect of an act or omission that is alleged to have occurred, or that had occurred, before his departure from the foreign State pursuant to the request;
• He will not be required to give evidence or assistance in relation to a criminal matter in Nigeria other than the criminal matter to which the request relates[5].

The Act stipulates that such person shall not, by reason only of his refusal or failure to consent to attend as requested, be subjected to any-penalty or liability be prejudiced in law.

The immunity above will cease to apply where the person has left Nigeria or has had the opportunity of leaving Nigeria but has remained in Nigeria other than for the purpose a request for his attendance was made.

Limitation in the use of statement

Statement made by a person requested in Nigeria for the purpose of assisting in criminal investigation cannot be admitted or used in prosecution of the person for an offence against the laws of Nigeria other than for the offence of perjury or contempt of court in relation to the giving of that evidence, unless the Central Authority of the foreign State concerned consents to it being so used.

The statement may however be admitted or used to impeach the person’s credibility or as evidence of any fact stated in that statement of which direct oral evidence by him would be admissible, if, in giving the evidence, he makes a statement inconsistent with that statement.

Admissibility of Evidence

Notwithstanding the provisions of the Evidence Act, foreign records, items, affidavit, and statement made by a person who has knowledge of it which is forwarded to the Attorney-General by the Central Authority of a foreign State in accordance with a request of Nigeria, is admissible in evidence in a proceeding in Nigeria irrespective of the fact that constitute hearsay evidence. To determine its probative value, the judge may examine the record or a copy of it and receive evidence orally or by affidavit, and draw a reasonable inference from it.

Request of assistance by a foreign state

A request by a foreign State to Nigeria for assistance in a criminal matter is to be made to the Attorney-General as the Central Authority of Nigeria who shall give his response by directing in writing the relevant person, body or competent authority to execute the request. The relevant authority will give effect to the request and collate any evidentiary material in response to the request, prepare a report in connection with the execution, and forward the report and the evidentiary material to the Attorney-General. Document(s) prepared by such authority in response to the request must be authenticated or certified. The Attorney-General shall without delay, after the execution of each request, forward the outcome in the form of a report to that foreign State and authorize the transmission of any evidentiary material to the foreign State.

Refusal to provide assistance

The Attorney-General may refuse to render assistance, in part or in whole, where he believes on reasonable grounds that:

• providing the assistance will be prejudicial to the sovereignty, security, public order or other essential public interest of Nigeria;
• the Central Authority of the foreign State has, in respect of that request, failed to comply with the terms of any treaty or other agreement between Nigeria and that foreign State;
• subject to section 20 of this Act, the request relates to the investigation, prosecution or punishment of a person for an offence that is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character;
• the request relates to the investigation, prosecution or punishment of a person in respect of an act or omission that, if it had occurred in Nigeria, would have constituted a military offence under the laws of Nigeria and does not constitute an offence under the criminal law of Nigeria;
• there are .substantial grounds for believing that the request was made for the purpose of investigating, prosecuting, punishing or otherwise prejudice to a person on account of the person’s race, religion, sex, ethnic, origin, nationality or political opinions;
• the request relates to the investigation, prosecution or punishment of a person in respect of an act or omission that, if it had occurred in Nigeria, would not have constituted an offence against the laws of Nigeria;
• the facts constituting the offence to which, the request relates, does not indicate serious offence[6].

Interception of information

The Act stipulates that a foreign State may request assistance to effect or facilitate the interception of telecommunications, postal items, electronic surveillance, computer data  for the purpose of criminal investigation. Such request may only be made if it appears to the foreign State that there are grounds to suspect that the information obtained through interception will contain information relevant to the commission of a criminal offence in the foreign State.  A foreign State, in conjunction with the competent authority concerned in accordance with its law, is allowed to carry out the interception through the designated service provider where the subject of the interception is present in Nigeria. Where the request for interception involves the interception of telecommunication services that are operated through a gateway in Nigeria, the Attorney-General shall cause the appropriate authority to ensure that the systems of telecommunications are made directly accessible for the lawful interception through the intermediary of a designated communications service provider in Nigeria. The Attorney-general upon receiving a request for interception will apply ex-parte to the court for an order to intercept communications.

Conclusion

The enactment of the provisions of this Act is perceived to be a further step to fighting corruption in the country. The enforcement of the Act will foster Nigeria’s relationship with foreign countries where mutual agreement exists. It will bring about the exchange of ideas and intelligence in the fight against corruption and corrupt practices in the country. It will help in identification and release of witnesses, suspects, evidence and documents to respective countries under the mutual agreement for criminal matters. This Act which stipulates provision for the sharing of confiscated properties and proceeds of crime, if fully implemented, will aid in the recovery of such confiscated properties to Nigeria; and a reciprocal gesture on request to a foreign state.

This Act appears to burden the Attorney-general with duties and responsibilities. This in mind, the Act makes provision for the Attorney-general to delegate his powers under the Act to any authorized person or competent authority[7].

FOOTNOTES:

[1] Reported on https://thenationonlineng.net/buhari-assents-to-mutual-assistance-in-criminal-matters-act-2019/. Last accessed 12^th July, 2019.

[2] Section 20 of Mutual Assistance in criminal matters Act

[3] Section 5

[4] Section 7

[5] Section 11

[6] Section 19

[7] Section 85