Trans-National Crimes (TNC) in Nigeria: Focus on Smuggling
By
Musa Omale*
Abstract
This article will generally examine transnational crimes, with particular focus on the role of The Nigerian Custom Service in combating smuggling in Nigeria. It finds that smuggling is a species of financial crimes and a predicate offence to money laundering with its attendant negative effects on the economic development in Nigeria. It identifies globalization of the economy, the heterogeneity of immigrants, and improved communications technology as the main causes of smuggling in Nigeria. It appreciates the collaborative efforts of other law enforcement agencies and recommends clear defined roles for the relevant agencies in order to avoid possible jurisdictional conflict.
1. Introduction
Transnational Crimes (TNC) can be defined as crimes that have actual or potential effect across national borders and crimes which are intra-state but which offend fundamental values of the international community[1]. The term is commonly used in the law enforcement and academic communities[2].
The word ‘transnational[3] relates to crimes that are not only international (that is, crimes that cross borders between countries), but crimes that by their nature involve border crossings as an essential part of the criminal activity[4]. It also includes crimes that take place in one country, but their consequences significantly affect another country[5]. Examples of transnational crimes include: human trafficking, migrant smuggling, smuggling/trafficking of goods (such as arms trafficking, drug trafficking, illegal animal and plant products and others prohibited on environmental grounds (e.g. banned ozone depleting substances), sex slavery, terrorism offences, torture and apartheid[6]. It is important to note the concept of transnational organized crime (TOC) which refers specifically to transnational crime carried out by organized crime organizations.
From the above definition, smuggling becomes a serious TNC as it is defined to mean the taking, sending or bringing goods secretly or illegally into or out of a country[7]. To the Nigeria Customs Service (NCS), it is the act of illegal importation or exportation of goods into or out of a country without payment of duty therein and evasion of prohibitions or restrictions order without legal documents required for that purpose[8].
This article shall examine the control and management of TNC with particular reference to the statutory role of the Nigeria Custom Service. It will also examine the nature and dimension of smuggling as a transnational crime from historical perspective, it causes and effect.
2. Control and Management of TNC
The need for the control and effective management of TNC cannot be over emphasized. Such crimes with their attendant economic and social consequences, have the capacity to affect the integrity of a nation. If not properly managed, smuggling as a TNC could lead to excessive loss of revenue to government. This and other effects would be discussed fully hereunder.
With respect to TOC, if not properly managed, it possesses a powerful potential and is highly dynamic. They are well organized and equipped. It is extremely difficult for law enforcement organs to find their way into the organizational structures of these groups, because many of them are based on ethnicity and act in the spheres of jurisdiction of different states[9]. Their activity undermines the authority of legal power and weakens democratic institutions and the national economy[10]. It therefore becomes necessary to design and realize measures to control TOC so as to safe guard the interest of the nation state.
3. Nature of Smuggling as a TNC
This stems from the need to appreciate the concept of TNC as proffered in our earlier definition.[11] We shall therefore attempt to x-ray the concept of TNC with emphasis on the crime of smuggling. The control and regulation of cross-border activities are essential for ensuring peace and stability. The movement of persons and goods is inevitable in undertaking these cross-border activities. Studies conducted have shown that between 4 and 5 million ECOWAS citizens ply the highways and frontiers of the community’s territory every month.[12] The snag here is the likelihood of crime to be committed by the movement of persons and goods.
The porous borders of West Africa, however, continue to engender cross-border crime in the sub-region, owing to the lack of an appropriate mechanism for monitoring movements and illegal activities across these borders[13].
Smuggling is an old phenomenon. It is an illegal activity across frontiers of nations. The question is how and to what level has smuggling attained in Nigeria. It is in fact a worldwide problem and it has taken a very complex dimension. Nigeria is a country where there is a very high taste for foreign goods. It has been estimated that about 90% of Nigeria’s demand for industrial consumer goods is met from foreign countries.[14]Smuggling has a long and controversial history probably dating back to the first time at which duties were imposed in any form.
In Britain, smuggling became economically significant at the end of the 17th century, under the pressure of high excise taxes.[15] It became more economically significant than legal activities such as farming and fishing.[16]
In North America, smuggling in colonial times was also as a result of heavy taxes and regulations imposed by mercantilist trade policies. It became notorious during Thomas Jefferson’s embargo of 1807 – 1809. In 1907 President Theodore Roosevelt tried to cut down smuggling by establishing the Roosevelt Reservation along the United States – Mexico border[17].
Drug smuggling became a major problem after 1970 and in the 1990’s when economic sanctions were imposed on Serbia.[18] A large percentage of the population survived by smuggling petrol and consumer goods from neighboring countries. The Serbian government unofficially allowed this to continue so that the economy would not collapse.
In modern times when many countries have tried to contain the influx of immigrants, the smuggling of people across national borders has become a lucrative extra legal activity.
Smugglers also use small ships, private airplanes and even small submersibles to avoid border checks.[19] In the Gulf of Mexico, the smuggling vessel of choice is the “go-fast boat.” Goods and people are smuggled across the seas hidden in containers, and over land, hidden in cars, trucks, and trains, and could pass a border as stow away.
In Nigeria, restricted importation of goods tends to encourage smuggling. Umar M. Birai,[20] however, states that since Nigeria is essentially a consumer import oriented economy, scarcity of foreign exchange and the national interest dictate that unrestricted importation of goods cannot be allowed. Even budgetary concessions to Nigerian manufacturers have been abused and turned to avenues “for over invoicing and smuggling”.
The borders of African countries are artificial and more often the demarcations cut across language, culture and ethnic formations. A very good example as given by Umar[21] is the case of Bebe along Nigeria – Benin border where some of them have their houses on one side and their farm on the other side. This kind of situation makes smuggling to thrive and enforcement becomes a problem. Bebe being an undefined area in Nigeria – Benin border at Idiroko, it becomes a centre of thriving smuggling activities. According to Umar[22], there was a particular warehouse at Bebe with five stores, contrabands were stocked in the four stores on Benin side and subsequently transferred into the one store on Nigerian side through the ceiling and smuggling is completed.
Nigeria’s oil resource and lack of it in the neighbouring countries also guaranteed a good market for petroleum products smuggled into their countries. Their relaxed customs regulations may probably be seen as one way of taking the advantage of the Nigerian market through smuggling since they cannot export to Nigeria, goods that do not originate from their countries.
In Nigeria, the smugglers use a variety of unwholesome methods to carry on the evil trade. Smuggling is carried out through concealments, use of false declaration, bicycle carriers, motorcycle carriers, tri-cycles (usually employed by paralytics, and animals especially in the northern part of the country). There may be many more means employed yet to be discovered.
4. Causes And Effects Of Smuggling as a TNC
TNC have been perpetrated for as long as borders have separated neighbouring countries. Its magnitude of activities and the increasing impact on the nation’s states cannot be over emphasized.
Three related factors have impacted transnational crime: globalization of the economy, rise in the number and heterogeneity of immigrants, and improved communications technology[23]. This is the back drop to our discussion on the causes and effects of the crime of smuggling in Nigeria.
One of the causes of smuggling is scarcity of high quality locally produced goods. The reason why the importation of foreign goods has to be controlled is due to the fact that Nigeria is essentially a consumer import oriented economy. As a developing economy, so many goods have to be prohibited and others placed on restriction. These regulations often lead to scarcity of the foreign goods, which are often preferred and believed to be of better quality than the ones produced locally.
The Structural Adjustment Programme (SAP) of the mid 80’s, especially during the military regime of Ibrahim Babangida, worsened Nigeria’s conditions and smuggling went out of control. This led to serious reduction in the quality of available goods, thereby resulting in inflation.[24] This consequently led to smuggling in the attempt to bridge the gap.
Okereke[25] was of the opinion that high imports tariff, vast number of prohibitions and unstable tariff policies, which appear unfavourable and cumbersome to importers, tend to encourage smuggling.
Another cause of smuggling is preference for imported goods. The preference for imported goods in Nigeria cannot be over emphasized. This leads to the reduction in the demand for locally manufactured goods. Nigerian leaders prefer to shop in London, Paris, New York during their innumerable foreign tours and claim immunity at the ports. Virtually everything is smuggled into Nigeria[26].
The country’s economic resources and the taste of wealthy Nigerians and the elites have made it an ever expanding market for all sorts of foreign goods, a lot of which are smuggled through the neighbouring countries.
Evasion of correct payment of duties has also been identified as one of the causes of smuggling, this is a situation where an importer or even an excise trader does not want to pay the prescribed duty or taxes on the goods being imported or being produced in the country. When they do not want to pay duty, then what comes to their mind is to find a way of bringing in the goods illegally and that is smuggling. The desire to maximize profits is responsible for evasion of duty payment, which in turn leads to smuggling. It could be that the importer outrightly refuses to pay any duty at all or in some cases would conceal, or even make false declaration for the purpose of paying lesser duties.
Other causes of smuggling include corruption, lack of proper enlightenment of the public and liberalization of trade by neighbouring countries. Revenue leakage, promotion of money laundering, killing of infant industries, negative social effects, and insecurity of life and property are the common effects usually attributed to smuggling in Nigeria.
5. The Role of NCS in Combating Smuggling in Nigeria
The Nigeria Customs Service is the principal agency mandated to prevent the crime of smuggling in Nigeria. The NCS is a Federal Government agency responsible for the implementation of the administration of the Customs and Excise Management Act (CEMA).[27] Even though the CEMA does not create the NCS, it regulates its activities. The CEMA in fact provides for the establishment of the Board of Customs and Excise. Section 4(1) therein empowers the NCS, subject to the general control of the Minister to control, manage and administer the Customs and excise laws, collect customs duties on imports and exports and collect excise duties on goods manufactured locally. It is against this background that the role of the NCS in anti-smuggling Operations shall be considered.
The NCS is responsible for the prevention of smuggling and the maintenance of social security through strict enforcement of import and export regulations. There are several preventive measures put in place by the NCS to curb the incidences of smuggling. They include Pre-shipment inspection, Destination inspection, Administration of manifest, Scanning, Automated system for Customs Data, 100% physical examination, Task force/Adhoc duties, Reconciliation, Post clearance Audit and Warehousing.
The various preventive measures are laudable but they are not without attendant problems in their implementation. This leads to the enforcement role of the NCS which include Arrest of suspects, Search, Detention and Seizure of goods which has become a veritable way of ensuring compliance.
Under the CEMA, a Customs Officer can arrest any offender of the provisions of the Act. This wide power of arrest is the same as that conferred on Police Officers and since the CEMA gives the Customs Officer the powers of a Police Officer, it could be conveniently said that the wide powers of arrest conferred on the Police is by necessary implications conferred on Customs Officers.[28]
Section 147 of CEMA empowers an Officer to conduct search upon reasonable suspicion that an offence has been committed. The purpose of the search is to look for any material that may be used as evidence at the trial of the accused person. Under CEMA areas of search covers that of persons, premises, vehicles, ships and aircrafts. Section 167(1) of CEMA empowers an Officer to seize or detain anything liable to forfeiture under the Customs and Excise law or which there is reasonable grounds to believe is liable to forfeiture. Seizure as an enforcement measure is believed to be a kind of deterrent to smugglers. The efficacy of it is seen in the various seizures made across the country by the operatives of the NCS.
Another role of the NCS is the power to institute proceedings under the CEMA. For any breach the CEMA there are provisions for a kind of enforcement and subsequent prosecution as the case may be. Proceedings could be criminal or civil, it is however often criminal proceedings that is mostly undertaken to curb the menace of smuggling. Under CEMA, Section 186 empowers the NCS to compound proceedings in respect of offenders against Customs law.
It then follows that all Customs Officers as Police Officers are charged with the arrest, detention and institution of criminal proceedings against offenders who break Customs laws as provided under the CEMA.[29] Through collaborative efforts however, some other agencies, especially, the Nigeria Police, National Drug Law Enforcement Agency and the Economic and Financial Crimes Commission (EFCC) have been empowered to handle some related aspects of the crime.
The Nigeria Police plays very vital role in curbing smuggling in any State. They detect, arrest, investigate and prosecute criminal cases by virtue of section 4 of the Police Act which provides:[30]
The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of laws and regulation with which they are directly charged, and shall perform such military duties within or without Nigeria as may be required of them by or under the authority of this or any other Act.
In the exercise of the above role, the police is in the forefront among other security agencies, in the effort to tackle the various TNC.
The NDLEA was established to enforce laws against the cultivation, processing, sale, trafficking and use of hard drugs and to investigate persons suspected to have dealings in drugs and other related matters.
Section 30(1)(p) of the NDLEA Act[31] provides that the Agency should collaborate with other government bodies both within and outside Nigeria in carrying on functions wholly or in part analogous to those agencies. To this end, and by virtue of sections 8(b)(c), 11(a) and 41 of the NDLEA Act, the NDLEA collaborates with other agencies especially the Nigeria Police and the NCS to enforce laws against TNC as the case may be.
The EFCC, has among others, the function of investigating all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam etc[32]. Section 46 of the Act, 2004[33] defines economic and financial crimes to mean:
The non-violent criminal and illicit activity committed with the objective of earning wealth illegally either individually or in a group or organized manner thereby violating existing legislation governing economic activities of Government and its administration and includes any form of fraud, narcotic drug trafficking, money laundering, embezzlement, bribery, looting, and any form of corrupt malpractices, illegal arms deal, smuggling,[34]human trafficking and child labour, illegal oil bunkering and illegal mining, tax evasion, foreign exchange malpractice including counterfeiting currency, theft of intellectual property and piracy, open market abuse, dumping of toxic wastes and prohibited goods, etc.
The EFCC Act gives the agency special powers to perform the above role. Section 7(1) provides:
The Commission has power to
- Cause investigation to be conducted as to whether any person, corporate body or organization has committed an offence under this Act or other laws relating to economic and financial crimes
(b) In addition to the powers conferred on the Commission by this Act, this Commission shall be the co-ordinating agency for the enforcement of the Provisions of –
…
(f) Any other law or regulation relating to economic and financial crimes, including the Criminal Code and Penal Code.
The above provisions, no doubt, makes the EFCC “Jack of all trade,” and the question is, does the Agency have the wherewithal to cope with all the stated crimes? It is however contended[35] that since economic crimes are intertwined and usually committed across national borders, there is the need for a central agency to co-ordinate and foster co-operation among relevant enforcement agencies for intelligence gathering and collaborative measures[36]. The role should however, be clearly defined so as to avoid jurisdictional conflicts with other specialized agencies.[37]
6. Conclusion
It has been argued that organized crime weakens the very foundation of democracy, as there can be no good governance without rule of law[38]. This observation is quite apt for the situation in Nigeria! As the nation faces the challenges of nurturing a stable democracy, after many years of military dictatorship, organized crimes pose a great threat to the survival of the country
The fight against TNC in Nigeria has been a continuous one. Successive governments have always claimed to be in the forefront of fighting corruption. The Obasanjo’s administration went a step further by establishing the EFCC, as an indication of its seriousness to fight all financial crimes.
The question then is how far has the nation fared in this business, of the fight against TNC.
In this paper we have humbly attempted to put the issue in focus by looking at the general definition of TNC, and its control and management. TNC was found to be of diverse nature evolving from a whole list of growing international crimes. It therefore became imperative to narrow the discussion to our experience on the job of revenue collection and suppression of smuggling. To this end, the nature of smuggling was considered, and it was held to have a long and controversial history, probably dating back to the first time when duties were imposed in any form.
The factors that aid smuggling as indicated in the causes tend to be societal, and seen in its effects to be an assault on the national economy. The role of the various security agencies in combating TNC was x-rayed, and the co-ordinating role of the EFCC was viewed as possible area of jurisdictional conflicts with other specialized agencies. As we progress with the business of trying to protect the integrity and security of the nation, we call on all and sundry to fully understand the dynamics of the Nigerian economy and contribute their quota to actualize the dream.
* Ph.D UNN; Assistant Comptroller, Nigeria Customs Services Headqaurters, Wuse Zone III, Abuja.
[1] Boister, Neil (2003) “Transnational Criminal Law?” European Journal of International Law 14: 953, 96777 retrieved from “http:// en Wikipedia.prgwiki/Transnational – crime on crime on 5/10/2012, last accessed on 23/04/2016.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Ibid. See, Catherine Soarces, Angus Stevenson (eds), Concise Oxford English Dictionary, (11thedn.), (New York: Oxford University Press, 2004). See also, Encarta Encyclopedia 2004, which sees smuggling as carrying goods into a Country secretly because they are illegal or in order to avoid paying duty on them.
[8] Sections 46, 47, 63, and 64 Customs and Excise Management Act C.45 Laws of the Federation of Nigeria (LFN) of 2004.
[9] Yuriy A. Voronin “Measures to control Transnational Organized Crimes; summary, DOC No. 184773: Retrieved from the site of National Criminal Justice Reference Service (NCJRS) Rockville MD 20849-6000.
[10] Ibid.
[11] Note 1 above.
[12] Lamine, Cisse. “ECOWAS and the Daily Events: The present realities of the integration process within the sub-region” in Agenda 2006, (GJA & FES: Accra), p,45 referred to in KOFI Annan International Peace Keeping Training Centre (KAIPC) Paper No.12, May 2006, Prosper Addo; “Cross Border Criminal Activities inWest Africa: Options for Effective Responses”.
[13] Ibid.
[14] The Report of the study Group on Customs and Smuggling presented to the Head of State and the Commander in Chief of the Armed Forces, October, 1984, P.127.
[15] Defoe, A Tour Thro’ The Whole Island of Britain, Letter III (London, 1724).
[16] Paul Theroux, The Kingdom by the Sea, 1983: 84, the Kingdom refers to the various smugglers inn by the Coast.
[17] Spangle, Steven L. (2008 – 02 –11) “Biological opinion for the proposed installation of 5.2 miles of primary fence near Lukeville, Arozona(http:/ iwww.fws.gov/south west/es/arizona/documents/ Biolopin/080011 – Lukeville primary fence p.3 u.s. fish andwide life service. Retrieved on 2008 – 10 – 11
[18] A land locked country located at the cross roads of Central and South East Europe.
[19] Coast guard hunts drug-running semi-subs CNN.Com, available at: http://www.cnn.com/2008/crime/03/02 drug.sub/index.htm1., last accessed, 23/06/2016.
[20] U.M. Birai, dimensions of smuggling and the Nigerian Customs, in 100 years of Nigeria Customs and Excise 1881 -1991, I.E.S. Amadii (ed) ABUP, Zaria, 1991), P. 222.
[21] Ibid.
[22] Ibid.
[23] Peter Reuter and Carol Petrie, eds., Commission on Behavioural and Social Sciences and Education Transnational organised Crime summary of a workshop, (Washington D.C.: National Academy Press, 1999).
[24] A. Wakili, “The Anti-smuggling Roles of NCS: An Assessment,” Unpublished Research Project at National Institute for Policy and Strategic Studies, Kuru, 2005, p. 25.
[25] U. Okereke, “The Role of Customs in National Security and implication for Crime prevention”. NIPSS Essay SEC 18, Kuru (1996) unpublished.
[26] T. A. Imobighe, NIPSS Studies on Nigeria’s International Boarders. The Marine Border with Chad; vol. III, 1988.
[27] See Section 10 Criminal Procedure Act. Cap C. 42 LFN, 2004. Compare with Section 8 of CEMA.
[28] Cap. C.45, LFN, 2004.
[29] In addition, Section 8 gives Customs Officers the same powers as Police Officers.
[30] Cap. P19 LFN, 2004.
[31] Cap. N.30 LFN, 2004.
[32] Section 6 (1) EFCC (Establishment) Act 2004.
[33] Op. cit.
[34] Section 6 (1) EFCC (Establishment) Act 2004.
[35] Op. cit.
[36] John Funsho Olorunfemi, “Unbundling or merger of Nigerian EFCC with ICPC;” Which Way? Lecturer, Department of Commercial and Property Law, Faculty of Law, University of Nigeria, Enugu Campus.
[37] Ibid.
[38] Ibid.