Managing the proceeds of crime : an assessment of the policies of Tanzania, South Africa and Nigeria
This study assesses the policies for managing recovered proceeds of crime in three countries, namely, Tanzania, South Africa and Nigeria. It considers the role and relevance of asset management in the asset recovery regimes of the three countries. Managing the proceeds of crime divides into two stages: the pre-confiscation stage and the post-confiscation stage. International best practices (IBPs) in asset management have been employed as a yardstick for the assessment. On the face of it, asset management is complementary to asset recovery policy. The management of preserved and recovered assets maintains their value and enables states to apply the assets to other policy objectives after the finalisation of the recovery process. From this perspective, proper asset management arguably lies at the heart of asset recovery policy. Asset recovery as a policy is concerned with the pursuit of two objectives, namely, combating crime and correcting the harm caused by crime. These objectives are encapsulated in two prominent principles: the principle that crime should not pay and the principle of corrective justice. Thus, asset management policy, as an element of asset recovery policy, needs to express these two principles and address their corresponding policy objectives. A number of challenges face the asset management institutions (AMIs) in the three designated states. They fall into two categories: policy challenges and legal challenges. The main policy challenge pertains to unbalanced or skewed policy objectives. Tanzania and Nigeria, in particular, give too much consideration to combating crime and too little to correcting the harm caused by crime to the community. These policy objectives need to be balanced by the states taking seriously the principle of corrective justice as fundamental to asset management policy. In this connection, compensation to victims, funding of institutions dealing with the victims of crime, funding of public good projects and funding of law enforcement agencies are available as ways of addressing the harm caused by the offence and showing commitment to ensuring that nobody suffers loss as a result of crime. Despite the existence and implementation of a proper asset management regime, certain factors affect the value of the preserved and recovered assets negatively. They include enforcement of certain rights in favour of the defendant, such as payment of legal, living and business expenses from the preserved assets, and certain asset recovery procedures, such as plea bargaining, non-conviction based asset recovery and administrative asset recovery. Proper legal controls are required in order to reduce the impact of such factors upon the value of preserved and recovered assets. The study concludes with a focus on the asset management regime of Tanzania. Various recommendations are offered towards the attainment of a Tanzanian regime structured in terms of balanced policy objectives. The recommendations cover three aspects: the general coverage of the law, the functioning of AMIs and the legal control of the factors that were identified as affecting the value of assets during the recovery process.
- Doctor Legum - LLD