Investigation and Prosecution of Corruption cases: Lessons learned

1
Investigation and Prosecution of Corruption
cases Lessons learned

• Concluding Remarks
• By
• Dr. A.Y. Shehu
• DG, GIABA
• On Law Enforcement Theme at the Global Forum V
• Held in Johannesburg South Africa
• 2 5th April 2007

2
Why Investigate and prosecute Corruption

• To enforce the rule of law
• Deprive offenders liberty
• To destabilize criminal networks
• To deprive criminals of assets confiscation
• Deterrence
• Correction

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Strategic considerations

• How well has the case been investigated?
• What are the chances for success?
• What is each defendants position?
• What assets are involved, where and in what form?
• What resources are available?
• Hire outside counsel for big cases?
• Select fewer cases excellent preparation

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Strategic considerations - cont

• What charges to proffer? Right statute, correct
  date, right defendant, right papers served on
  time, etc
• Are all statements signed served?
• Original exhibits ready for inspection by the
  court?
• Does the evidence prove the elements of the
  offence (s)?
• Have you studied the relevant statutes and case
  law?

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Strategic considerations - cont

• Are all your witnesses ready briefed?
• Do they have any special needs, e.g. anonymity,
  interpreter, visual, etc
• Your mode of dress suitable?
• Observe the right etiquette
• Know your case in and out
• Anticipate your opponents position

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Investigation vs Prosecution

• A successful prosecution is a function of good
  investigation
• There should be a professional team of
  investigators and prosecutors working in harmony
  for a common goal

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Investigators vs Prosecutors 2

• Strengthening the capacity of investigators to
  specialize in different aspects of investigation
  
• Financial investigation
• Interrogation
• Surveillance
• Computer forensic/accounts analysis
• Under-cover operations
• Sources and case management

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Why confiscation is priority

• A proactive strategy to defeat OC so
• Develop countermeasures against asset forfeiture
• Confiscation laws complex- highly litigated
• Lack of asset recovery strategy
• Inadequate expertise civil lawyers may be
  employed
• Confiscation should be integrated with general
  law enforcement work
• Sensitize judiciary on confiscation issues

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Non-conviction based confiscation

• How feasible?
• The UNCAC art.51-59 on asset recovery
• Victim needs
• Requires a lower/civil standard of proof
  balance of probability
• Freezing orders faster to obtain in civil courts
• Wider array of potential defendants to target

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Limitations

• Complex legal issues may arise
• Could be expensive hiring of civil lawyers and
  forensic accountants
• State may lose sovereignty if it subject itself
  to civil jurisdiction
• Counter claim arise

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Obstacles to Investigation and prosecution

• Dual criminality rule determining offences
• Corruption-OC-ML Nexus
• Burden of proof
• Codes of penal procedures types/scope of
  evidence admissible
• International legal assistance
• Immunities/impeachment procedures

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International cooperation

• Transfer of criminal proceedings
• Mutual legal assistance
• Judicial cooperation

13
International Cooperation

• Extradition through MLA for
• Taking of evidence/statement
• Effecting service of judicial documents
• Executing searches, seizures and freezing
• Examining objects and sites
• Providing information, evidentiary items,
  expert evaluations,
• Providing original or certified copies of records
• Identifying/tracing of proceeds of crime
• Facilitating voluntary appearance of persons in
  requesting state
• Recovery and return of assets

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International cooperation depends on

• International, including regional
  instruments/treaties
• Political relations b/w states -reciprocity
• Emerging good practices
• Technical assistance/capacity

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International legal instruments

• The UN Convention against Transnational Organized
  Crime (TAC) 2000
• The UN Convention against Corruption (UNCAC) 2003
• The AU Convention against Corruption 2003
• The ECOWAS Protocol on Corrupt Practices, etc.

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Pre-conditions for successful Investigation and
prosecution

• Strong political will to deal with E FC
• Comprehensive law with dissuasive sanctions
• Rule of law
• Integrity of institutions/individuals
• Adequate resources
• Mutual legal assistance framework
• Managing the risks

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Pre-requisites

• Professionalism competent/skilled staff
• Good knowledge of the law
• Independence resist influence
• Coordination/cooperation with other organs
• Resourcefulness/initiative
• International cooperation

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The way forward

• Independence of enforcement agency
• Strong and timely financial support
• Wide investigative powers
• Capacity building professionalism
• Attractive remuneration
• Adequate/credible witness protection programme

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The way forward - cont

• Sufficient ICT data management
• A credible, efficient effective CJS
• Mazimize leverage beyond entry-point by
  addressing cross cutting issues
• Consistency
• Sustainability

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Conclusion

• Technology/globalization big challenge
• Criminals are adaptable
• Justice is a credible deterrence
• It is a reflection of effective rule of law
• Technical assistance critical
• Capacity of prosecutor a quality control

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Thank you for your attention

• For further details
• Dr. AY SHEHU
• GIABA Secretariat
• Sacre Coeur 3 Pyrotechnie x VDN Villa No. 101
• BP. 32400, Dakar, Ponty, Senegal.
• Tel[phone]-1040
• Fax[phone]-1041
• E-Mail ayshehu_at_giaba-westafrica.org
• Website www.giaba-westafrica.org