Alleged N446.3bn Abacha loot: Is FG fighting corruption?

FRANCIS IWUCHUKWU

In what came as shocking to many Nigerians, the President Goodluck Jonathan led Federal Government (FG) through the Attorney-General of the Federation (AGF) and Justice Minister, Mohammed Adoke (SAN), on Wednesday June 18, 2014 withdrew the N446.3bn theft charges filed at the High Court of the Federal Capital Territory, in Wuse Zone 2, Abuja against Mohammed Abacha; son of a late military dictator, General Sani Abacha.

It would be recalled that the FG which had earlier filed a nine counts charge of stealing against the young Abacha in February 2014 had accused him of unlawfully receiving N446.3bn allegedly carted away from stolen government’s coffers between 1995 and 1998.

However, Daniel Enwelum who appeared on behalf of the AGF urged the court presided over by Justice Mamman Kolo to throw out the charges on the grounds of “fresh facts” that just emerged concerning the case. In his application before the court, Enwelum stated that, "I have been instructed by the AGF and Minister of Justice to withdraw the charges as presently filed before this court, because there are fresh facts and documents available to him.

"In this circumstance, he instructed me to file a notice of withdrawal without prejudice to future cause of action to be taken by his (AGF’s) office. In the light of that, I have filed a Notice of Withdrawal dated June 17, 2014. I humbly apply to withdraw the charges accordingly."

This development was however not opposed by Abdullahi Haruna, lawyer to the young Abacha, prompting Justice Kolo to Order the striking out of the charge against the accused. According to the charge, the FG accused Abacha of, "Dishonestly receiving stolen property and voluntarily assisted in concealing money."

Senior Advocate of Nigeria (SAN), Femi Falana insisted that, "Withdrawal of such grave corruption charges has serious implications for prosecuting anti-graft cases. On the basis of equality before the law, anyone being prosecuted for fraud or corruption can file applications to have their cases withdrawn and struck out by all criminal courts in Nigeria. By the way, has the loot of N400bn been refunded by Mr. Abacha?”

Another lawyer, Jiti Ogunye sees the withdrawal as an embarrassment to the Supreme Court, which according to the human rights activist had earlier ruled that Abacha had a case to answer over the same charges.

Ogunye said, "The development is very sad for the rule of law, the administration of criminal justice system and the fight against corruption in Nigeria. With the withdrawal, which followed the recent verdict of the Supreme Court that Mohammed Abacha has a case to answer the message that is being sent to the judiciary is that ‘we are at home with corruption, we are government of corruption and we promote corruption’.”

The lawyer added that the action was, "A crude and rude slap on Section 15(5) of the Constitution which says that the state shall abolish all corrupt practices and abuse of power." He added that the Attorney-General of the Federation, had by the withdrawal offended what he termed the philosophy of equality before the law, as many ordinary Nigerians facing charges for petty theft, "have no such opportunity of the charges against them being withdrawn."

Even Fred Agbaje sees the withdrawal as a political political decision taken as part of President Goodluck Jonathan’s strategy to win Kano at all cost in his re-election bid. He stated further that, "It is a political decision. It is all an attempt by the ruling party to win Kano State at all cost in the election. In fact, condemned armed robbers could even be granted political amnesty towards 2015 general election."

But another lawyer, Femi Aborisade pointed out that though the AGF is vested with such powers to withdraw cases of such nature consequent upon the provision of Section 174(1)(c) of the constitution. The lawyer added that, "I hold the opinion that the withdrawal of the charge is not in conformity with Section 174(3) of the Constitution."

It is recalled that the Supreme Court had earlier directed the FG to proceed with the prosecution of the young Abacha over his alleged involvement in the diversion of public funds to a foreign account that allegedly belonged to his late father.

In a unanimous judgement delivered by a five-man panel of Justices of the apex court, it was declared that the young Abacha has a criminal case to answer in the 123-count charge made against him by the FG.

The Supreme Court did not stop at that, it went ahead to throw out the appeal instituted by the young Abacha on the reason that it was lacking in merit. The apex court insisted that Abacha or any other person mentioned in the Decree have anything to do with the property after forfeiture as the forfeiture itself was by the force of the Decree.

The judgment read by Justice Olukayode Ariwoola, had Ordered Abacha to return to the Abuja High Court to face a 123-count charge bordering on possession of properties stolen from the FG. The Apex Court also held that Abacha should stand trial for holding on to properties allegedly stolen by his father.

According to the judge, "It was not by any agreement, co-operation, compliance or acquiescence by those persons listed in the Decree including the appellant; once it has been shown that the properties were corruptly and illegally acquired and were therefore forfeited without any further assurance other than this Decree.

"The appellant could not therefore deal with the properties to entitle him to any indemnity under Section 5 of the Decree. The term to ‘forfeit’ means to ‘divest’ of property, or the loss of right privilege because of a crime or neglect of duty. The appellant and others mentioned in the Decree cannot be deemed to deal with properties of which they have been divested without compensation and their title in those properties transferred to the Federal Government."

The young Abacha is standing trial before an Abuja High Court on allegations that touches on criminal conspiracy, breach of public trust, receiving and helping to starch stolen funds abroad. But not so long after the government came to the conclusion on its plans to commence his trial, the late General Abacha's son approached an Abuja division of the Court of Appeal to query what he termed the legality of the charge against him.

Apart from challenging the jurisdiction of the Abuja High Court to try him, Mohammed also argued that the said stolen fund had already been returned into the coffers of the government, adding that it would be unjust and unlawful to subject him to what he describes as
the rigours of prosecution over funds not in his custody.

The late General's son posed this argument through his lawyer, Joseph Daudu (SAN) with an addition that
Section 5 of Decree No. 53 of 1999, prohibited the FG from prosecuting an accused person who had forfeited money said to have been stolen. The senior lawyer maintained that late General Abacha enjoyed immunity to stash the money away in private foreign bank accounts so as to take care of uncertainties associated with governance especially as it concerned threats by some Western nations as at that time.

Daudu (SAN) prayed the Court of Appeal to determine whether any fund dealt with by the young Abacha's late father in his capacity as Head of State can be questioned by another administration in the face of all the Decrees that enabled him (Abacha), to exercise unlimited powers, as well as, whether the charge which was anchored on receiving stolen properties can be entertained by the High Court.

However, the appellate court threw out Mohammed's appeal on the grounds that it was lacking in merit. According to the Court of Appeal, "In the final analysis, there is nothing in the provision of Decree No. 53 of 1999 which inhibits the High court of the FCT Abuja from exercising its judicial power to try the appellant for the various criminal offences contained in the charges brought before it by the Attorney General of the Federation."

This development however prompted Falana to suggest that the Supreme Court judgment, which declared that Mohammed should be made to face trial has discredited the concept of perpetual immunity for any public officer in Nigeria.

Falana said, "It (judgment) has clarified the limit of executive immunity in Nigeria. Before now the Federal High Court had erroneously conferred permanent immunity on a former governor. By this judgment, the apex court has made it abundantly clear that the concept of perpetual immunity for any public officer is a constitutional anathema. The reasoning of the court cannot be faulted.

"It was so ridiculous to have asked the Supreme Court to extend executive immunity to shield the family members of the late dictator, General Sani Abacha, from criminal prosecution. It is to the credit of the judiciary that their lordships unanimously rejected the dangerous prayer.

"Mr. Mohammed Abacha should now be made to face his trial at the high court for conspiracy and receiving stolen funds as rightly ordered by the Supreme Court. The judgment is also a wake-up call on the Economic and Financial Crimes Commission, EFCC to prosecute all the persons indicted in Decree 5 of 1999 for colluding with the maximum dictator to loot the public treasury during the darkest chapter of the country's chequered history.

"The Supreme Court had held that immunity did not extend beyond tenure of office and that even if the late head of state was alive, he could be prosecuted for a criminal offence not to talk of his son who was never an occupant of the office of the Head of State. The court affirmed the decision of the Court of Appeal, which held that the late former Head of State's immunity did not extend to his son and ordered Mohammed to go and face his trial at the Abuja Court.

"Justice Ariwoola held that Mohammed should return to the trial court to take his plea and possibly plead a no case submission, if he so wished. His lordship further held that the appellant was charged with offences against the state, adding that forfeiture Order was just a punishment which could not earn him indemnity against trial.

"The court held further that the immunity of the father could not work for the son and that even the immunity of the father expired at his exit from office as provided by Section 308 of the 1999 Constitution. The High Court had rejected his application to quash the charges following which he appealed to the Court of Appeal. The Appeal Court rejected his appeal and upheld the decision of the high court.

"Mohammed was still dissatisfied and consequently appealed to the Supreme Court. He challenged the Abuja court's powers to exercise judicial powers over him by putting him on trial in view of the provisions of Forfeiture of Asset Decree No. 53 of 1999, an existing law and an Act of the National Assembly which, according to him, had resolved the issue of criminal liability arising out of the 123 counts criminal charge brought against him by the Federal Government."

Adoke had maintained that Nigeria was yet to receive about €175 million allegedly starched in a foreign account by late military dictator, General Sani Abacha. The AGF also maintained that the FG has continued to intensify efforts geared towards tracing and repatriating the country's stolen assets abroad.


According to Adoke, "In this connection, we have maintained effective liaison and communication with targeted jurisdictions to keep pace with asset recovery proceedings in those jurisdictions. In 2011, our close liaison and negotiation with the Island of Jersey led to the recovery and repatriation of £22.5 million confiscated by the Royal Court of Jersey from Raj Arjandes Bhojwani, an Indian national and associate of General Sani Abacha, on account of his money laundering transactions from Nigeria.

"We continued the liaison and negotiations with the Principality of Liechtenstein, which recently confiscated EUR 175 million from the Abacha family and associated companies in Liechtenstein following a confiscation order by the Supreme Court of Liechtenstein.

"However, the companies involved have lodged an appeal against the decision before the European Court of Justice in Strasburg. As soon as the appeal is concluded, firm arrangements consistent with the asset recovery provisions of the United Nations Convention against corruption, would be made to repatriate the forfeited sums to Nigeria."

But in what seemed like a reaction to the AGF's position, Conference of Nigerian Political Parties, CNPP requested from the FG what it termed a blanket request for the recovery of Nigeria’s over $400 billion looted funds. The CNPP in a communique issued by its National Publicity Secretary, Osita Okechukwu, stated that, “President Jonathan should utilise the window opened by the United Nations Convention Against Corruption, which binds countries to render mutual legal assistance in gathering and transferring evidence and Chapter V of the Convention, which makes asset recovery explicitly a fundamental principle of the Convention.

"We demand that a blanket request be made; for we need the billions of dollars to invest in critical infrastructure, revamp our decayed social services and stem gross unemployment.”

On his part, former President Olusegun Obasanjo posited that $1bn Abacha Loot was lying in Swiss Bank as at the time he left office as Commander-in- Chief, blaming the World Bank for contributing to the problems of Nigeria. The former president did not stop at that, he condemned the world bank for only being able to blackmail countries like Nigeria as corrupt, but not doing anything to make known the names of the corrupt individuals, the amount stolen and where the monies are kept in foreign accounts.

Obasanjo also chided the world bank for making Nigeria impoverished even as it misled the country into what it termed Structural Adjustment Programme, SAP when General Ibrahim Babangida held sway knowing clearly well that it would spell doom for Nigeria.

According to the former president, "When I was president, I called the World Bank. I said, please, give me the list of the amount that has been stolen, where is it kept and who the beneficiaries are. I never got anything from the World Bank thereafter.

"We have on our own decided that we will investigate and get from one family, Abacha family alone. From the Abacha family alone, we recovered millions of dollars. I got 1.25 billion dollars (100m pounds); and the lawyer in Swizerland (he is still there), who was doing it for us, said, when I was leaving, that if we worked harder, there was still, at least, one billion dollars that we can get from that family alone. Only an insincere and mad person will not acknowledge that there is corruption in Nigeria.

"It is the same World Bank who came to us and said 'Structural Adjustment Programme was good.' Of course, it only made us poorer. We said SAP would make us poorer, they said 'No.' We went for it and we are poorer today. And then they came to tell us that we did not do it the way they wanted us to do it. Many years later, they accepted that we were right and they were wrong."

"I am not saying we are not corrupt. As a nation, we are corrupt, but are we doing something about it? I once heard people, during my regime, saying that the fear of Ribadu was the beginning of wisdom but today, there is no longer any wisdom."

Even the Swiss government confirmed the fact that it recovered $700 million, out of the $1 billion loot allegedly stolen from Nigeria's banks belonging to the late Head of State, had been returned to the FG. The country made the confirmation through its ambassador to Nigeria,
Dr. Hans-Rudolf Hode who maintained that in the last 15 years, Switzerland had returned about $1.7 billion of what it termed illegal and questionable sources to their countries of origin including Angola, Peru, Nigeria and the Philippines, where he noted that he is not aware of the existence of $1 billion alluded to by former President Olusegun Obasanjo as still being held in the Swiss banks.