Case Study 3.1: Nigeria’s path toward comprehensive direct enforcement legislation

be recovered under the foreign order to the appointment of a public trustee or other persons as receivers to deal with realizable property.

In other cases, direct enforcement issues are the object of only a few provisions, thus leaving room for interpretation.7 In some statutes, the general provisions of criminal codes and criminal procedure codes (for example, dealing with the rights of third parties to challenge the act with which the foreign order has been recognized) are declared applicable once the necessary changes have been made. Also, as a type of MLA, the direct enforcement of foreign confiscation orders is subject to the conditions set forth by requested countries for executing MLA requests in general (for example, dual criminality, requirements for reciprocity, general grounds for refusal, and so forth).

3.1.3 Direct enforcement by crime-specific statutes (money laundering, organized crime)

In some jurisdictions, procedures for direct enforcement are spelled out in legislation dealing with specific crime categories. Japan, for example, handles the control of crime proceeds in the same legislative act devoted to the suppression of organized crime. The Republic of Korea’s detailed procedure on the direct enforcement of foreign confiscation orders is contained in its legislative act on the prevention of illegal trafficking in narcotics. Such a procedure is then made applicable—once the necessary changes have been made—to foreign orders related to corruption and other crimes.

Case Study 3.1: Nigeria’s path toward comprehensive direct enforcement legislation

Nigeria offers an interesting example of a legal system where direct enforcement action is potentially available only in limited circumstances and via different statutes.

One relevant piece of legislation is the Foreign Judgment (Reciprocal Enforcement) Act, whose chapter 175 permits the registration and enforcement of judgments obtained in other jurisdictions. Under this act, enforcing judgments taken in foreign criminal proceedings is only allowed in respect of payment of compensation or damages to an injured party. This leaves the possibility that, at least in theory, the act be used for the direct enforcement of foreign non-conviction confiscation-based orders taken in civil proceedings. The state practice in support of this hypothesis, however, could not be determined.

The other relevant statute is the Mutual Assistance in Criminal Matters within the Commonwealth (Enactment and Enforcement) Act (Mutual Legal Assistance (MLA) Act), whose section 22(1) states that “[a] request under this Part of the Act may seek assistance in invoking procedures in the requested country leading to the recognition or review and confirmation and the enforcement of an order for the forfeiture of the proceeds of criminal activities made by a court or other authority in the requesting country.” Under section 22(3), “[t]he law of the requested country shall apply to determine the circumstances and manner in which an order may be recognized, confirmed or enforced.” However, it appears that no implementing laws have yet been adopted for the competent authorities to carry out direct enforcement action under the MLA Act.

In its recent publicly available self-assessment report (31.08.2016) related to the Second Phase of the Mechanism for the Review of Implementation of the United Nations Convention against Corruption (UNCAC), Nigeria has stated that an amendment to the MLA Act is currently pending within its National Assembly. The amendment will seek, among others, to make the MLA Act applicable generally to all UNCAC States Parties as its scope of application is currently limited to 53 Commonwealth member countries.