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

3. Strategic considerations • How well has the case been investigated? • What are the chances for success? • What is each defendant’s 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

4. 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?

5. 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 opponent’s position

6. 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

7. 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

8. Why confiscation is priority • A proactive strategy to defeat OC – so: • Develop countermeasures againstasset 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

9. 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

10. 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

11. 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

12. 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

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

15. 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.

16. 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

17. Pre-requisites • Professionalism – competent/skilled staff • Good knowledge of the law • Independence – resist influence • Coordination/cooperation with other organs • Resourcefulness/initiative • International cooperation

18. 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

19. 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

20. 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

21. 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:+221-824-1752/869-1040 Fax:+221-824-1745/869-1041 E-Mail: ayshehu@giaba-westafrica.org Website: www.giaba-westafrica.org