The federal and Delta State governments are at loggerheads following the former’s decision to use the £4.2 million James Ibori-linked loot for infrastructural developments outside his state. But lawyers are divided on the matter, writes ADEBISI ONANUGA.
Last Tuesday, the United Kingdom (UK) agreed to return £4.2 million (about N2.2 billion) to Nigeria being funds recovered from friends and associates of former Delta State Governor James Ibori. The decision followed the Federal Government’s assurance that the funds would be spent on key infrastructure.
The fund was retrieved through UK law enforcement agencies, led by the Metropolitan Police Service, National Crime Agency (NCA), Crown Prosecution Service (CPS), supported by the Foreign Commonwealth and Development Office (FCDO) and Home Office, who, following investigations, discovered assets bought in the UK with the illicit funds.
Ibori, in February 2012, pleaded guilty to the offence of money laundering, conspiracy to defraud, and forgery, and was sentenced to 13 years imprisonment by a UK court. Some of his associates and family members were also jailed for related offences.
Representatives of the UK and Nigerian governments signed an agreement for the return of the money to Nigeria in Abuja on March 9.
The signing of the agreement, which took place at the Federal Ministry of Justice, Abuja, was done under the auspices of the U.K.-Nigeria Memorandum of Understanding (MoU), which came into force in 2016.
UK High Commissioner Catriona Laing and Attorney-General of the Federation and Minister for Justice Abubakar Malami (SAN) represented their respective countries
When the money arrives, probably this week, it will be the first time that ill-gotten assets and money will be returned to the country by UK under the 2016 agreement.
Nigeria/UK MoU 2016 on recovered assets, funds
The UK/Nigeria 2016 MoU provides that criminal assets stolen in Nigeria and seized in the UK are to be returned to Nigeria. The MoU was signed by the UK Immigration Minister Robert Goodwill and Malami during Goodwill’s two-day visit to Nigeria on August 30 and 31, 2016. It reinforced the countries’ commitments to continued co-operation and mutual support in returning seized proceeds of bribery or corruption in a responsible and transparent way.
The MoU provides the framework for returning stolen assets to Nigeria. It also makes provision for transparency and monitoring of the return of any assets.
The MoU also made it clear that both countries are committed to ensuring that returned money should not be allowed to get back into the hands of criminals. As part of the agreement, the Nigerian government also pledged to use any returned funds for projects that would benefit the poorest members of society and improve access to justice for all Nigerians.
How the £4.2m will be spent
In line with the MoU, Malami, on behalf of the Nigerian government, last Tuesday, pledged to use the funds for projects that will benefit and improve the country and this includes substantial building work for the Lagos to Ibadan Expressway, the Abuja to Kano Road and the second Niger Bridge.
The projects will be administered by the Nigeria Sovereign Investment Authority and independently audited. Nigeria has also established a monitoring team to oversee the implementation of the projects and to report regularly on progress. The Cleen Foundation, which has expertise in substantial infrastructure projects, civil engineering, anti-corruption compliance, anti-human trafficking compliance, and procurement, will provide additional monitoring and oversight.
Row trails Fed Govt’s decision
However, the Federal Government decision’s to exclude Delta State from the £4.2m did not go down well with the state government. Legislators, lawyers, rights groups and other stakeholders also faulted the government’s plan.
‘An act of injustice’
Delta State described the decision as an act of injustice. Its Commissioner for Information Charles Aniagwu, while speaking on Arise Television last Tuesday, said rather than use the funds for projects in other states, it should be deployed for projects in Delta. Aniagwu listed roads in the state needing attention to include Sapele-Benin Road, Agbor-Osubi Road, and Agbor-Eku Road. among others.
Sagay: Delta can seek judicial pronouncement
Chairman, Presidential Advisory Committee on Anti-Corruption, Prof Itse Sagay, agreed with Aniagwu on how the fund should be utilised, insisting the money was taken from the coffers of Delta State.
He said: “The money is Delta State money and must be returned to Delta State. The Federal Government cannot appropriate it for any reason whatsoever. Delta State should officially demand for it, failing which the court can be activated for judicial pronouncement on it.”
House of Reps kick
The House of Representatives also opposed the Federal Government. Last Thursday, it asked it to halt the appropriation of the £4.2m. The resolution followed a unanimous adoption of a motion by Minority Leader Ndudi Elumelu (PDP Delta), at a plenary of the Green Chamber. The motion was co-sponsored by nine other lawmakers from Delta Sate.
Elumelu insisted that the money belonged to the people of Delta and should be returned to the state government’s coffers for developmental purposes.
Deputy Speaker Ahmed Wase mandated the committees to conclude investigations and report back to the House within two weeks.
Rights groups fault Fed Govt
Also on Thursday, a non-governmental organisation (NGO), the Nigeria Voters Assembly (NVA), condemned the Federal Government’s plan.
In a statement by its President, Mashood Erubami, the pro-democracy, human rights and anti-corruption group said the funds should be released to the Delta State Government and its people, stressing “diverting the fund from Delta State to other regions will be an open conversion of what rightly and legally belong to Delta State”.
‘Reverse decision on £4.2 million Ibori loot or face court action’
The League of Ndokwa Professionals on Sunday gave the Federal Government seven days to reverse its decision to use the £4.2m for infrastructural developments.
Addressing a news conference in Lagos, its President, Chief Tony Amechi and Publicity Secretary, Evans Ufeli said the Federal Executive Council (FEC) and AGF Malami have no authority over the fund and cannot take a decision on it when the Delta State Government had not decided how it would be used to develop the state.
They insisted that the money should be returned to Delta State once received by government, stressing that they shall monitor the fund with the state government and ensure it is deployed for the benefit of Deltans.
According to Amechi: “the aforementioned funds belong to the people of Delta state and same cannot be appropriated or misappropriated by the federal government to funds project already appropriated for in 2021 budget.
“The £4.2 million was earned by the Delta State government through her Internally Generated Revenue (IGR) scheme, 13 per cent derivation funds from the federal government’s sale of Crude Oil and loans and other lawful means before the said funds were laundered by former Governor James Ibori.
“It is the law that state funds are meant for the development of the state and her people, but if by any means, such funds are diverted for personal use, the said fund if recovered, must be returned to the state account from where it was looted or diverted,” he insisted,
Amechi argued: “Nigeria is administered by the principle of federalism where fiscal autonomy is driven through financial autonomy wherein the Federal Government’s revenue is clearly separated from state finances.
“it is the intention of the law that state revenue remains their exclusive preserve, therefore state revenue recovered anywhere in the world should be returned to the state from where it was stolen.”
GFAR principles for asset recovery
The Principles for Disposition and Transfer of Confiscated Stolen Assets in Corruption Cases, cited by Ugolor, were agreed at the first GFAR Conference held in Washington DC on December 4 and 6, 2017 and they include Partnership, Mutual Interests, Early Dialogue, Transparency .and Accountability; Beneficiaries; Strengthening Anti-Corruption and Development; Case-Specific Treatment; Consider Using an Agreement under UNCAC Article 57(5); Preclusion of Benefit to Offenders and Inclusion of Non-Government Stakeholders.
UN prescription for asset recovery
The United Nations (UN) Convention Against Corruption (UNCAC) prescribes the process by which the proceeds of corruption transferred abroad are recovered and repatriated to the country from which they were taken or to their rightful owners.
Chapter V of the Convention listed three stages in the confiscation and return process of looted assets: identifying and tracing assets; freezing and confiscating assets; and recovering and returning assets.
Recovering, returning assets
UNCAC Article 57 stipulates that once corrupt assets have been identified and legally confiscated, they must be returned to their “prior legitimate owners”. It also already envisaged that “this final step in the asset recovery process can be complex, as it entails considering how to ensure the process is both transparent and accountable.
“The whole asset recovery process relies mainly on effective cooperation between jurisdictions. Mutual legal assistance is covered in UNCAC (Articles 46; 54-57), and states are required to “afford one another the widest measure of legal mutual assistance in investigations, prosecutions and judicial proceedings”.
Global Forum on Asset Recovery
The first Global Forum on Asset Recovery (GFAR) was held in Washington, DC, between December 4 and 6, 2017, hosted by the United Kingdom and the United States with support from the Stolen Asset Recovery Initiative (StAR). The meeting focused on assistance to four priority countries: Nigeria, Sri Lanka, Tunisia and Ukraine. GFAR was established as an outcome of the 2016 Anti-Corruption Summit, hosted by the United Kingdom. The results of the GFAR, such as an MoU between Nigeria, Switzerland and the World Bank which sets out the return of $321m of recovered assets, were concluded in the final communiqué.
Observers within and outside government are worried about the uproar that trailed the federal government’s decision to use the expected funds for infrastructural development outside the state. What should guide the government in the deployment of the fund, the March 9 UK-Nigeria agreement, international conventions or precedents?
Legal practitioners within the bench and the bar shared their thoughts on the thorny issue. They include a former judge of the Lagos Judiciary, Justice Ebenezer Adebajo, Babatunde Ajibade (SAN), Emeka Etiaba (SAN), Femi Falana (SAN), Louis Alozie (SAN), Kunle Adegoke (SAN) and a lecturer of law in the Faculty of Law, University of Lagos (UNILAG), Akoka, Wahab Shittu.
‘Delta State can’t lay claim to money’
Justice Adebajo said the British Government would not have any direct discussion on the matter without the invitation of the federal government. He noted that the money was recovered by a foreign government.
That notwithstanding, he argued that the federal government ought to have invited the Delta State government to join in the negotiations for the repatriation of the money.
He reasoned that the federal government must have worked against a background of information including the refutal by Delta State government that its money was missing/stolen.
Justice Adebajo however maintained: “It is a trite principle of Law that a person cannot approbate and reprobate on an issue. Once Delta State government had earlier refuted any claim to the funds, it cannot turn around to lay a claim to the funds.”
‘Why take from Peter to give to Paul?’
Ajibade reasoned that common sense and precedent, if it existed, would require that Delta should be entitled to the money.
“It is not an area that I have done any research in, but common sense says to me that if the money that was found to have been stolen by the former governor was stolen from the state, then, of course, it should be returned to the state. I don’t see any justification for the Federal Government claiming it and that is aside from, as you say, it appears that there is a precedent where other repatriated monies have been returned to the states from which it was stolen,” he told The Nation.
‘Recovered fund not national cake’
Etiaba said it was wrong for the federal government to assume ownership of the money because, according to him, it was obviously taken from the coffers of the Delta State government. It was also morally wrong, he added, to deprive the state of the use of the money.
Citing Bayelsa in the case of Dipreye Alamieyesigha, Etiaba recalled that when similar recovery happened in times past, the funds were returned to states whose funds were looted.
“The case of Delta State shouldn’t be different. This is a federation and every state enjoys its autonomy. The money that belongs to Delta State is not our money; it is not a national cake. The issue here is that if the federal government is serious about taking the money, Delta state should approach the Supreme Court to enforce its right over the money,” Etiaba said.
Falana said the controversy surrounding the disbursement of the fund was totally unnecessary having regards to the precedent that has been established in the country.
He argued that the federal government’s decision could not be justified under local and international law.
“From 1999-2003, the Delta State Government collected statutory allocations from the Federation Account pursuant to section 162 of the Constitution. Part of the money was diverted from the account of the Delta State Government by Chief James Ibori. The fund was confiscated during the trial of Chief Ibori, his banker and lawyer in the United Kingdom. Since the confiscated fund has been recovered it has to be remitted to the Account of the Delta State Government,” Falana said.
He said in AG Lagos State v AGF, it was held that the Federal Government lacks the vires to confiscate or seize the fund payable to the local governments in Lagos State from the Federation Account.
“Since it is not in doubt that the £4.2 million belongs to Delta State, the federal government cannot, under any law, seize the fund and use it to fix the Kano-Abuja Road and Lagos-Ibadan Road. Why not Warri-Asaba Road?
“It is on record that the money confiscated from Governor Joshua Dariye in the United Kingdom, recovered by the Federal Government and repatriated to Nigeria, was returned to the account of the Plateau State Government. The money confiscated from Governor Diepreye Alamieyeseigha in the United Kingdom, recovered by the Federal Government and repatriated to Nigeria, was remitted to the account of Bayelsa State Government,” Falana said.
He argued further that the MoU signed by the representatives of the British Government and the Federal Government on the disbursement of the recovered funds “cannot supersede the Constitution which has prohibited any form of discrimination in the country.
“In other words, by virtue of Section 42 of the Constitution, the governments and peoples of Plateau, Bayelsa and Delta states are entitled to equal rights and opportunities. Since what is sauce for the goose is sauce for the gander, the sum of £4.2 million confiscated from Governor James Ibori in the United Kingdom and recovered by the Federal Government has to be repatriated and remitted to the account of the Delta State Government.
“Indeed, it is trite law that no treaty or agreement between Nigeria and another shall have the force of law in any part of the country unless it is enacted into law by the National Assembly in accordance with Section 12 of the Constitution.
“Since the agreement on the £4.2m has not been domesticated by the National Assembly it is of no legal effect whatsoever.
“As far as international law is concerned the recovered fund has to be paid to the victims of the corrupt practice in Delta State in accordance with Article 35 of the United Nations Convention Against Corruption…
“Some concerned citizens and the Delta State Government have decided to join issues with the Federal Government over the seized fund. Otherwise, another sum of £100 million which will soon be recovered and repatriated from the confiscated fund will also be claimed by the Federal Government on very shaky legal grounds.”
‘Forfeiture of stolen asset is restitution for victim’
Alozie also contended that the arbitrary allocation of the returned James Ibori loot to fund federal projects by the Federal Government of Nigeria was wrong, adding that the money belonged to Delta State.
“It is more like conversion of Delta State property to federal use. After he was caught, tried and convicted, the money ought to be forfeited to the victim of the crime, as a sort of restitution. It ought not to be hijacked by the Federal Government.
“The money must have been part of Delta State’s own share from Federation allocation or internally generated revenue or loans.
“I don’t think it is fair and proper for the Federal Government to hold on to the returned loot and use the same to fund its own projects.
“This money was not confiscated or forfeited to the federal government as is usually done in EFCC trials where looted assets are at the end of trial forfeited to d federal government as provided for under d EFCC Act.
“The forfeiture and return of Ibori loot stemmed from his trial and conviction In Britain. It is the same place the late Dipreye Alamiesiagha of Bayelsa State was tried and convicted. At the end of the day, the assets confiscated from him were returned to the government and people of Bayelsa State.
”To my knowledge, forfeiture of stolen monies/assets is meant for restitution or compensation of the victim of the crime and not to further enrich the Federal Government of Nigeria”, he stated.
‘Why Delta Govt shouldn’t get the money’
But Adegoke differed.
He recalled that Delta State consistently insisted that its money was not lost. To him, that explained why the state did not take steps to recover the money while the Federal Government did.
Adegoke said: “It is not in dispute that the money was looted from Nigeria. Nigeria then is in the position of a finder. I don’t support that the money be given to Delta State as the tendency is that it may end up in the hands of James Ibori or the money be re-looted.
”In such circumstance, the federal government can retain the money but ensure that it is not re-looted. It must be spent to provide infrastructure for the people of the country”, he argued.
‘Delta State failed to make representation’
Shittu viewed the issue from legal and moral perspectives. He pointed to the fact the funds were repatriated to Nigeria legally in pursuance of bilateral treaty obligations between Nigeria and the UK. The treaty would have spelt out conditionalities for the utilisation of the funds to which parties are bound
He however argued that under international law, all agreements must be respected. The principle is ‘pacta sunt servanda’ meaning agreements are sacred.
Shittu said: “The application of the £4.2m repatriated loot will depend on the terms of the treaty to which Nigeria is bound. l have followed arguments for and against those entitled to the funds. The argument that the funds were stolen from Delta state and ought to be returned back to Delta state for its development is compelling largely on moral considerations, but l doubt whether that line of reasoning is sustainable on legal grounds.
“The bilateral treaty pursuant to which the funds were released is one between Nigeria and UK as sovereign states. The funds were released to Nigeria and not to Delta state and it is Nigeria and not Delta state that is bound by obligations under the treaty. Undoubtedly the UK had nominated projects to which the funds ought to be applied, a breach of which necessarily will occasion legal consequences.
“My view is that prior to the release of the funds and at the outset of negotiations, Delta State ought to have made representation to the Federal Government so that its interests could be factored into the equation in nominating projects that would be incorporated into the treaty obligations. Unfortunately, at the outset the attitude of successive administrations in Delta State had been the standpoint that no Delta State funds was missing. The question will now be, what has changed?”.