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Investigation and Prosecution Investigation and Prosecution of Corruption cases: Lessons of Corruption cases: Lessons

learnedlearned

Concluding RemarksConcluding Remarks ByBy

Dr. A.Y. ShehuDr. A.Y. ShehuDG, GIABADG, GIABA

On Law Enforcement Theme at the On Law Enforcement Theme at the Global Forum VGlobal Forum V

Held in Johannesburg South Africa Held in Johannesburg South Africa 2 – 52 – 5thth April 2007 April 2007

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Why Investigate and Why Investigate and prosecute Corruption prosecute Corruption

• To enforce the rule of lawTo enforce the rule of law

• Deprive offenders’ libertyDeprive offenders’ liberty

• To destabilize criminal networksTo destabilize criminal networks

• To deprive criminals of assets –To deprive criminals of assets –confiscationconfiscation

• DeterrenceDeterrence

• CorrectionCorrection

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Strategic considerationsStrategic considerations

• How well has the case been investigated?How well has the case been investigated?• What are the chances for success?What are the chances for success?• What is each defendant’s position?What is each defendant’s position?• What assets are involved, where and in What assets are involved, where and in

what form?what form?• What resources are available?What resources are available?• Hire outside counsel for big cases?Hire outside counsel for big cases?• Select fewer cases – excellent preparationSelect fewer cases – excellent preparation

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Strategic considerations - Strategic considerations - contcont

• What charges to proffer? What charges to proffer? Right statute, correct date, Right statute, correct date, right defendant, right papers served on time, etcright defendant, right papers served on time, etc

• Are all statements signed & served?Are all statements signed & served?• Original exhibits ready for inspection by Original exhibits ready for inspection by

the court?the court?• Does the evidence prove the elements of Does the evidence prove the elements of

the offence (s)?the offence (s)?• Have you studied the relevant statutes Have you studied the relevant statutes

and case law?and case law?

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Strategic considerations - Strategic considerations - contcont

• Are all your witnesses ready & briefed?Are all your witnesses ready & briefed?

• Do they have any special needs, e.g. Do they have any special needs, e.g. anonymity, interpreter, visual, etcanonymity, interpreter, visual, etc

• Your mode of dress suitable?Your mode of dress suitable?

• Observe the right etiquetteObserve the right etiquette

• Know your case in and out Know your case in and out

• Anticipate your opponent’s positionAnticipate your opponent’s position

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Investigation vs Investigation vs ProsecutionProsecution

• A successful prosecution is a function A successful prosecution is a function of good investigationof good investigation– There should be a professional team of There should be a professional team of

investigators and prosecutors working in investigators and prosecutors working in harmony for a common goalharmony for a common goal

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Investigators vs Investigators vs Prosecutors 2Prosecutors 2

• Strengthening the capacity of Strengthening the capacity of investigators to specialize in different investigators to specialize in different aspects of investigation: aspects of investigation: – Financial investigationFinancial investigation– InterrogationInterrogation– SurveillanceSurveillance– Computer forensic/accounts analysisComputer forensic/accounts analysis– Under-cover operationsUnder-cover operations– Sources and case managementSources and case management

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Why confiscation is Why confiscation is prioritypriority

• A proactive strategy to defeat OC – so:A proactive strategy to defeat OC – so:– Develop countermeasures againstDevelop countermeasures against asset asset

forfeitureforfeiture– Confiscation laws complex- highly litigatedConfiscation laws complex- highly litigated– Lack of asset recovery strategyLack of asset recovery strategy– Inadequate expertise – civil lawyers may be Inadequate expertise – civil lawyers may be

employedemployed– Confiscation should be integrated with general Confiscation should be integrated with general

law enforcement worklaw enforcement work– Sensitize judiciary on confiscation issuesSensitize judiciary on confiscation issues

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Non-conviction based Non-conviction based confiscationconfiscation

• How feasible?How feasible?– The UNCAC art.51-59 on asset recovery The UNCAC art.51-59 on asset recovery – Victim needsVictim needs– Requires a lower/civil standard of proof – Requires a lower/civil standard of proof –

balance of probabilitybalance of probability– Freezing orders faster to obtain in civil Freezing orders faster to obtain in civil

courtscourts– Wider array of potential defendants to Wider array of potential defendants to

targettarget

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LimitationsLimitations

• Complex legal issues may ariseComplex legal issues may arise

• Could be expensive – hiring of civil Could be expensive – hiring of civil lawyers and forensic accountantslawyers and forensic accountants

• State may lose sovereignty if it State may lose sovereignty if it subject itself to civil jurisdictionsubject itself to civil jurisdiction

• Counter claim ariseCounter claim arise

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Obstacles to Investigation Obstacles to Investigation and prosecutionand prosecution

• Dual criminality rule – determining Dual criminality rule – determining offencesoffences

• Corruption-OC-ML Nexus Corruption-OC-ML Nexus

• Burden of proofBurden of proof

• Codes of penal procedures – Codes of penal procedures – types/scope of evidence admissibletypes/scope of evidence admissible

• International legal assistanceInternational legal assistance

• Immunities/impeachment proceduresImmunities/impeachment procedures

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International cooperationInternational cooperation

• Transfer of criminal proceedingsTransfer of criminal proceedings

• Mutual legal assistanceMutual legal assistance

• Judicial cooperationJudicial cooperation

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International CooperationInternational Cooperation

• Extradition – through MLA for:Extradition – through MLA for:– Taking of evidence/statementTaking of evidence/statement– Effecting service of judicial documentsEffecting service of judicial documents– Executing searches, seizures and freezingExecuting searches, seizures and freezing– Examining objects and sitesExamining objects and sites– Providing information, evidentiary items, & expert evaluations, Providing information, evidentiary items, & expert evaluations, – Providing original or certified copies of recordsProviding original or certified copies of records– Identifying/tracing of proceeds of crimeIdentifying/tracing of proceeds of crime– Facilitating voluntary appearance of persons in requesting Facilitating voluntary appearance of persons in requesting

statestate– Recovery and return of assetsRecovery and return of assets

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International cooperation International cooperation depends ondepends on

• International, including regional International, including regional instruments/treatiesinstruments/treaties

• Political relations b/w states -Political relations b/w states -reciprocityreciprocity

• Emerging good practices Emerging good practices

• Technical assistance/capacityTechnical assistance/capacity

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International legal International legal instrumentsinstruments

• The UN Convention against Transnational The UN Convention against Transnational Organized Crime (TAC) 2000Organized Crime (TAC) 2000

• The UN Convention against Corruption The UN Convention against Corruption (UNCAC) 2003(UNCAC) 2003

• The AU Convention against Corruption The AU Convention against Corruption 20032003

• The ECOWAS Protocol on Corrupt The ECOWAS Protocol on Corrupt Practices, etc.Practices, etc.

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Pre-conditions for successful Pre-conditions for successful Investigation and prosecutionInvestigation and prosecution

• Strong political will to deal with E & FCStrong political will to deal with E & FC• Comprehensive law with dissuasive Comprehensive law with dissuasive

sanctionssanctions• Rule of lawRule of law• Integrity of institutions/individualsIntegrity of institutions/individuals• Adequate resourcesAdequate resources• Mutual legal assistance frameworkMutual legal assistance framework• Managing the risksManaging the risks

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Pre-requisitesPre-requisites

• Professionalism – competent/skilled Professionalism – competent/skilled staffstaff

• Good knowledge of the lawGood knowledge of the law

• Independence – resist influenceIndependence – resist influence

• Coordination/cooperation with other Coordination/cooperation with other organsorgans

• Resourcefulness/initiativeResourcefulness/initiative

• International cooperationInternational cooperation

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The way forwardThe way forward

• Independence of enforcement agencyIndependence of enforcement agency

• Strong and timely financial supportStrong and timely financial support

• Wide investigative powersWide investigative powers

• Capacity building – professionalismCapacity building – professionalism

• Attractive remunerationAttractive remuneration

• Adequate/credible witness protection Adequate/credible witness protection programme programme

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The way forward - contThe way forward - cont

• Sufficient ICT – data managementSufficient ICT – data management

• A credible, efficient & effective CJSA credible, efficient & effective CJS

• Mazimize leverage beyond entry-Mazimize leverage beyond entry-point by addressing cross cutting point by addressing cross cutting issuesissues

• ConsistencyConsistency

• Sustainability Sustainability

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ConclusionConclusion

• Technology/globalization – big challengeTechnology/globalization – big challenge

• Criminals are adaptableCriminals are adaptable

• Justice is a credible deterrenceJustice is a credible deterrence

• It is a reflection of effective rule of lawIt is a reflection of effective rule of law

• Technical assistance critical Technical assistance critical

• Capacity of prosecutor – a quality control Capacity of prosecutor – a quality control

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Thank you for your attentionThank you for your attention

For further details:For further details:

Dr. AY SHEHUDr. AY SHEHUGIABA Secretariat GIABA Secretariat Sacre Coeur 3 Pyrotechnie x VDN Villa No. 101 Sacre Coeur 3 Pyrotechnie x VDN Villa No. 101 BP. 32400, Dakar, Ponty, Senegal.BP. 32400, Dakar, Ponty, Senegal.Tel:+221-824-1752/869-1040Tel:+221-824-1752/869-1040Fax:+221-824-1745/869-1041Fax:+221-824-1745/869-1041E-Mail: E-Mail: ayshehu@giaba-westafrica.orgayshehu@giaba-westafrica.orgWebsite: www.giaba-westafrica.orgWebsite: www.giaba-westafrica.org