Debunking Myths Relating to Bankers Declaration of Assets Law.

Debunking Myths Relating to Bankers Declaration of Assets Law. Daily Law Tips (Tip 773) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

 Introduction:  

Several myths and conspiracy theories have been birthed around the Bank Employees, etc. (Declaration of Assets) Act, since the recent order from the Economic Financial Crimes Commission (EFCC). The EFCC had on 16 March 2021, ordered all employees of financial institutions (including banks) in Nigeria to declare their assets before 1^st June 2021. It claimed to have made the “EFCC Order) in line with the provisions of the Bank Employees, etc. (Declaration of Assets) Act. (Free copy of this law is accessible via <https://sabilaw.org/wp-content/uploads/2021/04/BANK-EMPLOYEES-ETC.-DECLARATION-OF-ASSETS-1986.pdf>)

Expectedly, the “EFCC Order” has since been opposed by organized pressure groups of bankers and other employees of financial institutions. Considering the age of the Bank Employees, etc. (Declaration of Assets) Act and its unpopularity, many stakeholders have expressed and popularized their wrong understanding of the Bank Employees, etc. (Declaration of Assets) Act. This has created several myths and conspiracy theories around the “BEDA Act”. Hence, this work is designed to save the day, by “Debunking Myths Relating to Bankers Declaration of Assets Law”. A version of this work was earlier published on ThisDay Newspaper (a national daily) on 6 April 2021, under the title “Legality Of The EFCC Order on Bank Employees Declaration of Assets” on its hard copy at page 8 and online copy at <https://www.thisdaylive.com/index.php/2021/04/06/legality-of-the-efcc-order-on-bank-employees-declaration-of-assets/amp/>.

The Bank Employees, etc. (Declaration of Assets) Act (“BEDA Act”) is a federal law made in September 1986. The “BEDA Act” mandates all employees and former employees of the Nigeria Customs Service, the Central Bank of Nigeria, Banks, Bureau de Change, Cryptocurrencies operators and all other financial institutions in Nigeria or in foreign branches to declare their assets annually and to continue to do so even 2 years after termination of the employment. It also, allows the President of Nigeria to add more persons to the list of persons to be bound by the law to declare their assets. 

Myths and Conspiracy Theories about the “BEDA Act”:

Below is an attempt to debunk some of the popular myths and conspiracy theories about and around the Bank Employees, etc. (Declaration of Assets) Act (“BEDA Act”). 

1.1 Prior to 16 March 2021, most Nigerians were only aware of the declaration of assets by public officers (government workers) under the Code of Conduct.  This is easily justifiable, since public officers mingle with public funds and trust, so there is need to track their personal assets. Hence, there was or is a popular assumption among many Nigerians, that private persons and businesses have no duty to declare their assets. Well, this assumption has been wrong since 26 September 1986, when the “BEDA Act” was made to compel private citizens employed in the financial sector of the economy to declare their assets.  

 1.2 “BEDA Act” is not a creation of the EFCC or President Muhammed Buhari. Rather, “BEDA Act” is a thirty-Five (35) years old existing federal legislation that has rarely been enforced in Nigeria. The law was made on 26 September 1986.

1.3 An aide of President Muhammed Buhari of Nigeria (Lauretta Onochie) was reported by the International Centre for Investigative Reporting (ICIR) to have while relying on the “BEDA Act” and the “EFCC Order”, twitted that; “Lifestyle audit is now legal in Nigeria. Those who flaunt lifestyles they cannot afford, can now be investigated by any of the anti-graft agencies to produce evidence of the sources of their wealth. You can now be called upon to explain how you acquired certain properties.”. It is important to note that the “BEDA Act” does not affect persons that are not employees under the “BEDA Act”. Only the following persons are under the “BEDA Act”; the employees and former employees of the Nigeria Customs Service, the Central Bank of Nigeria, Banks, Bureau de Change, Cryptocurrencies operators and all other financial institutions in Nigeria or in foreign branches. Although, section 7 of the “BEDA Act” creates the offence of “Unjust Enrichment” it focuses/applies only to employees that are under the “BEDA Act”. The offence is clearly defined to cover only an employee that is under the “BEDA Act”, that “… owns assets in excess of his legitimate, known and provable income and assets”. The “BEDA Act” does not by any chance create room for lifestyle auditing of all Nigerians. However, by a combination of some existing laws in Nigeria, lifestyle auditing can be conducted on any person in Nigeria by some national security agencies.

1.4 Chief Dele Momodu asked some questions in response to the “EFCC Order” and the “BEDA Act”, which seems to represent views of some Nigerians. Chief Dele, asked; “Are we in a military regime? Why not start with government agencies and politicians? Banks belong largely to the private sector.” In response to his question; it is important to note that the “BEDA Act” is an existing federal government law and not a presidential order. By the “BEDA Act” some specific private persons are to declare their assets and the President of Nigeria can also increase the categories of persons that must make such assets declaration. So, Nigeria is not under a military regime but under a democracy, and under the democracy is a democratic legislation that mandates certain private persons to declare their assets annually. Also, Government workers and public officers are to declare their assets under the Code of Conduct. However, as rightly pointed out by Chief Dele, there is need for the President of Nigeria to exercise his powers under the “BEDA Act” and enlist politicians into the list of private persons that should declare their assets annually.  

1.5 The Association of Senior Staff for Banks, Insurance and other Financial Institutions (ASSBIFI) was reported to have objected to the “EFCC Order” and its President was reported to have said, “EFCC has the right to investigate the top management and board of directors of banks but ordinary workers who are diligently carrying out their responsibilities as professionals should be exempted.” In response to his statement, it must be emphasized that the “BEDA Act” has not exempted any bank or financial institution worker from making declaration of assets. The “BEDA Act” covers all workers in the financial sector, from drivers, gardeners to top executives and from permanent staff to adhoc/part-time staff. Hence, the EFCC and even the President of Nigeria lacks the power to remove or exempt any person listed in the “BEDA Act”.  

1.6 The National Union of Banks, Insurance and Financial Institutions Employees (NUBIFE) in communicating its displeasure, stated through its Deputy General Secretary, that, “Another thing is that they said bank workers. Now, who are the bank workers? They should go to CBN (Central Bank of Nigeria) and ask who are the bank workers? The CBN has said that about 90 per cent of those working in banks are not bank workers. So, if you are saying tellers, marketers and others are not bank workers, then fine. In that case, they (EFCC) should focus on the MDs (managing directors) of banks.” The “BEDA Act” has gone ahead of the growing confusion on the status of bank workers and bank casual/part-time workers. The “BEDA Act” expressly stated that all manner, title and types of workers in the bank and financial institutions are to declare their assets. The “BEDA Act” covers all employees of financial institutions in Nigeria and those in their foreign branches, from the bank executives to cleaners, drivers, messengers and security men. 

1.7 It has also been canvassed by some persons that the Central Bank of Nigeria (CBN) collects assets declaration from top executives of financial institutions and as such that the “BEDA Act” and the “EFCC Order” are not necessary. This conclusion is wrong. Whatever assets declaration that the CBN collects is good and commendable. However, the “BEDA Act” is specific on how assets declaration forms are to be completed, submitted, delivered, timelines and the relevant person to receive such forms. Under the “BEDA Act” the CBN is not a collector of assets declaration forms rather it is the Secretary to the Federal Government of Nigeria or its agents. The CBN rather is expected to ensure that its employees declare their assets and that the Governor of the CBN delivers such declarations to the Secretary to the Federal Government. 

Conclusion: 

Although the ignorance of law is not an excuse, government owes a duty to the citizens, to ensure that laws are gazetted and even popularized. Government must support free legal awareness in order to increase access to justice. The unpopularity of the thirty-five (35) years old “BEDA Act” has further deepened the ignorance of Nigerians on the provisions of the “BEDA Act”. Hence, when the EFCC mentioned the “BEDA Act” in March 2021, several baseless objections were raised by many stakeholders. As opinion makers/pilots, the defective positions of most stakeholders on the “BEDA Act” are now popular myths across Nigeria. The myths threaten compliance and enforcement of the “BEDA Act” and calls into action the services of legal myth busters. (Free copy of this law is accessible via <https://sabilaw.org/wp-content/uploads/2021/04/BANK-EMPLOYEES-ETC.-DECLARATION-OF-ASSETS-1986.pdf>).

My authorities, are:

1. Sections 1, 2, 3, 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria, 1999.
2. Sections 1 to 14 of the Bank Employees, etc. (Declaration of Assets) Act 1986. (Free copy of this law is accessible via <https://sabilaw.org/wp-content/uploads/2021/04/BANK-EMPLOYEES-ETC.-DECLARATION-OF-ASSETS-1986.pdf> 
3. The Supreme Court judgment on “Meaning of Regulation” in the case of AG LAGOS STATE v. EKO HOTELS LTD & ANOR (2006) LPELR-3161(SC)
4. The Court of Appeal judgment on “Meaning of Executive Order/Regulation” in the case of ELEPHANT GROUP PLC v. NATIONAL SECURITY ADVISER & ANOR (2018) LPELR-45528(CA)
5. The Supreme Court judgment on “Policy Documents/Guidance” in the case of COMPTROLLER GENERAL OF CUSTOMS & ORS v. COMPTROLLER ABDULLAHI B. GUSAU (2017) LPELR-42081(SC).
6. The Supreme Court judgment on “Policy Documents/Guidance” in the case of UNION BANK OF NIGERIA PLC & ANOR. v. IFEOLUWA NIG. ENTERPRISES LTD (2007) 7 NWLR (Pt.1032) 71 at 84.
7. Onyekachi Umah, “Unlawfulness of the EFCC Order on Bankers Declaration of Assets” (LearnNigerianLaws.com, 8 April 2021) <https://sabilaw.org/unlawfulness-of-the-efcc-order-on-bankers-declaration-of-assets/> accessed 12 April 2021
8. Onyekachi Umah, “Legality of the “EFCC Order” on Bank Employees Declaration of Assets” (ThisDay, 6 April 2021) <https://www.thisdaylive.com/index.php/2021/04/06/legality-of-the-efcc-order-on-bank-employees-declaration-of-assets/amp/> accessed 7 April 2021. 
9. Onyekachi Umah, “The Minimum Financial Threshold for EFCC Cases.” (LearnNigerianLaws.com, 1 September 2020) <https://sabilaw.org/the-minimum-financial-threshold-for-efcc-cases/> accessed 2 April 2020
10. Onyekachi Umah, “Can the Central Bank of Nigeria blacklist a Bank Employee?” (LearnNigerianLaws.com, 29 March 2021) <https://sabilaw.org/can-the-central-bank-of-nigeria-blacklist-a-bank-employee/> accessed 2 April 2021
11. Onyekachi Umah, “Duty of Care Owed By Banks in Nigeria.” (LearnNigrianLaws.com, 1 April 2021) <https://sabilaw.org/duty-of-care-owed-by-banks-in-nigeria/> accessed 2 April 2021
12. Onyekachi Umah, “The Central Bank of Nigeria Notices on Cryptocurrencies; a Ban or a Banger?” (LearnNigerianLaws.com, 9 February 2021) <https://sabilaw.org/the-central-bank-of-nigeria-notices-on-cryptocurrencies-a-ban-or-a-banger/> accessed 2 April 2021
13. Onyekachi Umah, “Who Are The Shareholders Of The Central Bank Of Nigeria” (LearnNigerianLaws.com, 7 February 2019) <https://sabilaw.org/daily-law-tips-by-onyekachi-umah-esq-tip-263-who-are-the-shareholders-of-the-central-bank-of-nigeria/> accessed 2 April 2021
14. Onyekachi Umah, ”How To Prove That A Bank Is Licensed In Nigeria” (LearnNigerianLaws.com, 30 March 2019) <https://sabilaw.org/how-to-prove-that-a-bank-is-licensed-in-nigeria-daily-law-tips-tip-300-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 2 April 2021 
15. Onyekachi Umah, “Nigeria Has No Law Against Public Gathering During Covid-19 Era” (LearnNigerianLaws.com, 14 April 2020) <https://sabilaw.org/nigeria-has-no-law-against-public-gathering-during-covid-19-era-daily-law-tips-tip-547-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 2  April 2021
16. Deji Elumoye, “EFCC Directs Bankers to Declare Assets by June 1” (ThisDay, 17 March 2021) <https://www.thisdaylive.com/index.php/2021/03/17/efcc-directs-bankers-to-declare-assets-by-june-1/> accessed 2 April 2021
17. Wasilat Azeez, “EFCC orders bank workers to declare assets, sets June 1 deadline” (theCable, 16 March 2021) <https://www.thecable.ng/efcc-orders-bank-workers-to-declare-assets-sets-june-1-deadline> accessed 2 April 2021
18. Chike Oliseh, “EFCC gives all bankers ultimatum to declare their assets” (Nairametrics, 17 March 2021) <https://nairametrics.com/2021/03/17/efcc-gives-all-bankers-ultimatum-to-declare-their-assets/> accessed 2 April 2021. 
19. Fikayo Olowolagba, “We’re not in military regime – Momodu reacts as EFCC orders bankers to declare assets” (Daily Post, 16 March 2021) <https://dailypost.ng/2021/03/16/were-not-in-military-regime-momodu-reacts-as-efcc-orders-bankers-to-declare-assets/> accessed 2 April 2021
20. Comms Week, “Bankers Protest EFCC’s Order to Declare Assets” (Nigeria Communications Week, 22 March 2021) <https://www.nigeriacommunicationsweek.com.ng/bankers-protest-efccs-order-to-declare-assets/> accessed 2 April 2021
21. Ibrahim Yusuf, “Protests greet EFCC asset declaration order to banks” (TheNation, 21 March 2021) <https://thenationonlineng.net/protests-greet-efcc-asset-declaration-order-to-banks/> accessed 2 April 2021
22. Gabriel Ewepu, “CISLAC hails EFCC’s order to bankers on asset declaration” (Vanguard, 19 March 2021) <https://www.vanguardngr.com/2021/03/cislac-hails-efccs-order-to-bankers-on-asset-declaration/“> accessed 2 April 2021
23. Wale Odunsi, “Bankers help fraudsters – CHRSJ backs EFCC on asset declaration” (DailyPost, 29 March 2021) <https://dailypost.ng/2021/03/29/bankers-help-fraudsters-chrsj-backs-efcc-on-asset-declaration/> accessed 2 April 2021
24. The Editorial Board, “Assets declaration should be all embracing” (Business Day, 26 March 2021) <https://businessday.ng/editorial/article/assets-declaration-should-be-all-embracing/> accessed 2 April 2021
25. Dipo Olowookere, “Bank CEOs, Others Jittery Over EFCC Asset Declaration Directive” (Business Post, 17 March 2021) <https://businesspost.ng/banking/bank-ceos-others-jittery-over-efcc-asset-declaration-directive/> accessed 2 April 2021
26. Fakoyejo Olalekan, “EFCC amends charge against ex-Intercontinental Bank MD, Erastus Akingbola” (Nairametrics, 14 March 2019) <https://nairametrics.com/2019/03/14/efcc-amends-charge-against-ex-intercontinental-bank-md-erastus-akingbola/> accessed 2 April 2021. 
27. Thisday, “EFCC Arraigns BDC Operators for Laundering $1.6m” (Thisday, 30 June 2020) <https://www.thisdaylive.com/index.php/2020/06/30/efcc-arraigns-bdc-operators-for-laundering-1-6m/> accessed 2 April 2021
28. Ann Godwin, “Banks becoming money laundering institutions, EFCC boss alleges” (Guardian, 6 April 2019) <https://guardian.ng/news/banks-becoming-money-laundering-institutions-efcc-boss-alleges/> accessed 2 April 2021
29. Kunle Sanmi, “Bank worker, wife arrested over alleged $1.49 million money laundering” (Premium Times, 4 November 2019) <https://www.premiumtimesng.com/news/more-news/360933-bank-worker-wife-arrested-over-alleged-1-49-million-money-laundering.html> accessed 2 April 2021
30. Ihuoma Chiedozie, “Lifestyle audit: Nigerians with ‘unexplained wealth’ to lose assets to FG” (ICRC, 27 March 2021) <https://www.icirnigeria.org/lifestyle-audit-nigerians-with-unexplained-wealth-to-lose-assets-to-fg/> accessed 2 April 2021.
31. Pic credit: third-stage consulting

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