*Introduction:
The signing of the Memorandum of Understanding between the British Government and the Federal Executive Council alongside the Attorney General of the Federation, Abubakar Malami SAN, on the repatriation of the looted fund of the sum of £4.2 million which was laundered by the former Delta State Governor, James Ibori which led to his conviction on 10 count charges bordering on fraud and money-laundering in February, 2012 and the subsequent decision of the Federal Government to utilize same for the for the completion of the second Niger Bridge, Abuja – Kano expressway and the Lagos – Ibadan expressway has generated torrents of reactions and diatribes from political pundits across party lines and constitutional legal minds.
Some political experts and legal practitioners including concerned citizens, particularly some indigenes of Delta State have been clamouring for the return of the looted funds to the coffers of Delta State Government, as was done in Plateau and Bayelsa State, but the Attorney General of the Federation, Mr Malami, had argued that the offences for which James Ibori were charged were Federal offences and hence, the Federal Government is the victim of the crime.
On the backdrop of the above, I am compelled as a Counsel and front row participant who was privy to the trajectory and sequence of the Ibori’s case to set the records straight in order to enlighten the unlearned and the ignorant.
*Background Facts:
It must be recalled that my clients who were the patriotic Delta State, Elders, Leaders and Stakeholder Forum (Elders Forum) under the able leadership of Chief DR. Senator Edwin Clark, OFR, CON, had at a time during James Ibori’s administration petitioned the Economic and Financial Crimes Commission (EFCC) on the several illegal activities of James Ibori and his cohorts among which was his use of Appropriation Bill to siphon state funds of about $1Billion Dollars, which was an equivalent sum of N159Billion Naira then, and about N500 Billion at present, and some underhand dealings of some company shares acquisitions.
Surprisingly, the then EFCC Chairman, Mallam Nuhu Ribadu, had clandestinely refused to neither investigate nor prosecute James Ibori, claiming his “hands were tied”. But, being resolute on the conviction to ensure that justice was meted out against James Ibori who had illicitly enriched himself with the commonwealth of the people of the State, the Elders Forum proceeded to the Federal High Court for an Order of Mandamus to compel the EFCC to prosecute James Ibori and others.
It is also interesting to recall that the case went through several courts in Abuja, Kaduna, Asaba and Dubai before it was finally resolved at the Southwark Crown Court, London in the United Kingdom. I was present throughout the proceeding till he was convicted and the proceeds of crime were recovered from him. It was even in the course of the event that I started my Doctoral research in the UK.
Let me mention that some emminent Nigerians like Chief Ogbetuor, Chief Sunday Iwaya, Chief Brume, Chief Godwin Oberabor, Albert Okumagba, and Elder Orubebe among many others too numerous to recall committed themselves to this course while Elder Orubebe dramatically withdrew when he was nominated as a Federal Minister.
Similarly, many other patriotic and passionate Nigerians like Allen Agbaka among others, inspired by Femi Falana, SAN and some Civil Society groups, approached the Court to ensure that the end of justice was done in the case.
EFCC an agency of the Federal Government of Nigeria should be commended for their patriotic stand despite the initial opposition of the President Yar’adua’s Attorney General’s opposition to the UK trial.
*The Attitudinal Disposition of the Delta State Government:
While I totally agree that the form of Government being practiced in Nigeria is federalism, however, what many of the agitators loyal to the Government of Delta State have failed to understand and which has made the scenery appear like a flying object of unidentifiable origin and a burgeoning folklore of marginalization of the Delta people by the Federal Government was the belligerent and lackadaisical attitudinal disposition of the Delta State Government at the time of the trial of James Ibori.
What is more crucial and fundamental are the facts which culminated in the recovery of the funds looted by James Ibori and the nagging ironies attendant upon many of them.
It is pertinent to note that as at the time of the trial of James Ibori, the Delta State Government with an unslackened enthusiasm had outrightly denied the looting of its purse by the Ex-Governor and questioned what they described as a “cooked up” charges against him.
History will never forget how the Ex-Governor was greeted with funfair upon his release from prison. The flock of supporters that visited his Oghara, Delta State residence to accord him a heroic welcome is a clear testimony and confirmation of the fact that the people of Delta State strongly believed Ibori’s innocence. In fact, they had believed that lbori was a victim of political machination and regard the period he spent in the penitentiary as a learning experience in the University of Life
But more importantly, the Federal High Court sitting in Abuja, headed by Honourable Justice Kolawole, in 2016, had ordered that Delta State Government should not benefit from another recovered funds from Ibori, consequent upon its failure to cooperate with the Economic and Financial Crimes Commission (EFCC) during Ibori’s trial, thereby permanently forfeiting the Ibori’s loot to the Federal Government.
I want to also bring to attention that the current Chairman of the Presidential Advisory Committee on Anti-Corruption (PACAC), Professor Itse Sagay (SAN) who has insistently been clamouring for the release of the looted funds to Delta State Government had strongly condemned the sentencing meted out by the court against James Ibori in the past as being inhumane, savaged and malicious. He cannot be approbrating and reprobrating at the time. Prof. Sagay cannot be against corruption and again be advocating for this. The learned Professor is hereby advised to resign from the advisory body on corruption.
If they had the wit and clout to invent their own song, it should be that which would not put them in such an abject plight. The chicken has come home to roost for the people of Delta State and they must bear the consequences of their actions. If the people of Delta State and their allies who had said they were not looking for their money, can suddenly claim ownership of same, then something is not adding up somewhere. And if truth must be told, the people of Delta State need to purge themselves of their irremediable patent lies and hypocrisy on this matter.
*Legal Perspective and Implications:
It is an unbridled fact the UK Proceed of Crime Act makes provisions for the confiscation of proceeds of crime to the crown and it is regarded as funds belonging to Her Majesty’s Government but the latest Memo between the United Kingdom and Federal Republic of Nigeria has altered that and awarded ownership to the Federal Government.
However, it suffices to draw attention to the provisions of the United Nation Convention Against Corruption which are very pungent in this discourse.
Article 53 (c) of the Convention requires that a State Party contemplating confiscation enable their appropriate authorities to recognize the claim of another State Party to be a legitimate owner of property acquired through the commission of a Convention offence.
It provides that State Parties to the convention must:
“Take such measures as may be necessary to permit its courts or competent authorities, when having to decide on confiscation, to recognize another State Party’s claim as a legitimate owner of property acquired through the commission of an offence established in accordance with the Convention”.
Article 57(1) provides that “Property confiscated by a State Party shall be disposed of, including by return to its prior legitimate owners by that State Party in accordance with the provisions of this convention and its domestic law”.
Article 57(5) provides that “Where appropriate, States Parties may also give special consideration to concluding agreements or mutually acceptable arrangements, on a case-by case basis, for the final disposal of confiscated property”
From the foregoing, it therefore implies that the procedure to be followed in the final disposal of confiscated property to a beneficiary state would be dependent on the peculiarity of each case.
In June 2013 James Ibori’s assets that were confiscated include: a house in Hampstead, North London worth £2.2million Pounds; a property in Shaftesbury, Dorset, for £311,000 Pounds; a £3.2 million Pound mansion in Sandton, near Johannesburg, South Africa; a fleet of armoured Range Rover SUVs valued at £600,000 Pounds; a Bentley luxury car costing £120,000 Pounds and a Mercedes Maybach purchased for €407,000 Euro that was shipped direct to his mansion in South Africa.
It must be noted that pursuant to the provisions of the United Nation Convention Against Corruption, the united Kingdom had entered into a Memorandum of Understanding with the Nigerian Government to ensure that the funds were not re-looted and the Federal Government was made to undertake that a Civil Society Organization will monitor the refund of the looted funds.
We must also recall that at the time of Ibori’s sentencing, the U.K. International Development Secretary issued a statement that: “We are committed to rooting out corruption wherever it is undermining development and will help bring perpetrators like Ibori to justice and return stolen funds to help the world’s poorest.”
It suffices to equally state that The Federal Government which represents all the constituent States of the Federation holds in trust and exercises the powers of the Federation for and on behalf of all the States. Moreso, it is well accepted that only Nation States are subjects of international law and the component States of a Country are integral parts of the Country. See the holding of Uwais JSC (as he then was) in the case of AG FEDERATION V. AG OF ABIA STATE & ORS (2001) LPELR-24862(SC).
*Conclusion:
On the backdrop of the above, Federal Government ought to utilize the repatriated funds for the benefits of the people of Delta State and Nigeria at large with projects that benefits the entire citizenry without exceptions and preferences.
However, considering that Delta State Government is a continuum and an ally of past Governments in the State, the Federal Government should appoint the true Delta State patriots lead by Chief E. K. Clark, OFR, CON who had fought against corruption in the State as trustees of the any of the Ibori’s loot earmarked to Delta State, if any, to ensure proper accountability and transparency and to prevent same from being re-looted.
Kayode Ajulo, PhD
Castle of Law, UK
Hayes,
UB3 1NR
London
14th March, 2021