Why debate over recovered Abacha’s loots linger

The debate is still raging over funds recovered from the late Nigerian military dictator, Sani Abacha. A senior Nigerian lawyer, recently raised concern over the altercation between the Economic and Financial Crimes Commission (EFCC) and a prominent United States Senator, Charles Grassley, who is the Chairman of the US Senate Committee on Finance. Senator Grassley reportedly wrote a letter to the Chairman of the Money Laundering and Asset Recovery Section of the US Department of Justice in which he called for the stoppage of the repatriation of all funds running into over $300million recovered from bank accounts said to be connected to Abacha.

The senator accused the EFCC and its acting Chairman, Mr. Ibrahim Magu, and Attorney General of the Federation, Mr Abubakar Malami (SAN) of being biased against critics and political opponents of the incumbent administration of President Muhammadu Buhari in the fight against corruption and of being “agents of oppression.”

The EFCC acting spokesperson, Mr. Tony Orilade, in its defense, insisted that there was no iota of bias in the commission’s handling of criminal cases under Magu, particularly corruption cases, and that the anti-corruption battle being fought by the commission has been “impartial, objective and non-discriminatory.” The commission asserted that the U.S. Senator’s accusations failed to address the painstaking efforts of the acting Chairman, Magu, in tackling corruption without fear or favour, cooperating with the U.S. in fighting cyber crimes, and in the transparent and accountable handling of recovered funds.

The Attorney General of the Federation, Malami, on his part, dismissed the US Senator’s assertions as baseless. A senior lawyer, Mr. Martin Okpaleke, who is the proprietor of a Victoria Island, Lagos law firm, Gerald-Martin & Company, called for the de-escalation of the apparent tension by toning down of the rhetoric by both sides. Commending the U.S Senator and the U.S government for their consistent interest in the work of Nigeria’s law enforcement agencies, particularly the EFCC, Okpaleke was of the view that the concern raised in the U.S. Senator’s letter and the accusations contained in it are not sufficient ground for the Senator or anybody to call for the money not to be returned to Nigeria through the normal processes and channels.

He noted that there is no dispute that the monies are Nigeria’s public funds that were unlawfully taken out of Nigeria and unlawfully domiciled in bank accounts within U.S. jurisdiction.

Okpaleke added that it was important that attention should be on the totality of EFCC’s work in combating economic and specialized and sophisticated crimes and not be unfairly and narrowly focused on corruption cases involving politically exposed persons. He contended that any fair-minded person would score the Commission’s performance under Magu creditably well based on publicly available information about the Commission’s work.

He expressed disappointment that EFCC’s work in combating crime appears to be suffering from what he described as “a mostly politically induced negative perception of the Commission’s efforts as being unfairly targeted at critics and political opponents of the incumbent administration of President Buhari.”

He contended that such perception is not borne out by the facts when one considers that politicians of the current ruling party as well as its supporters have been investigated and are still being investigated by the Commission over various alleged offences, with some already prosecuted and convictions obtained by the Commission from the courts while several others are currently being prosecuted.

He pointed out that EFCC does not deliver justice alone but necessarily works through and with the courts and cannot usurp the role of the courts in the criminal justice system and processes, thus making it imperative that those criticizing the Commission ought to be circumspect and mindful of the limits of the Commission’s powers and responsibilities in the wider scheme of criminal justice delivery. He also emphasized that the National Assembly has a role to play in bolstering the efforts of EFCC and he called for Magu’s name to be represented to the current Senate for confirmation and he urged the Senate to confirm his appointment immediately this is done. In his view, the creditable performance of Magu in acting capacity in the last couple of years could be considered at the very least that refusal by the last Senate to confirm his appointment is a very serious error on the part of that Senate. However, he called on the EFCC, which he felt had an excellent public relations unit to do more to change some of these negative perceptions of the Commission’s work and performance.

On the issue raised by Senator Grassley that the Commission and its acting Chairman are “agents of oppression” Okpaleke condemned such characterization, contending that it is wrong personalizing such matters to the extent of defining and reducing the actions of a corporate law enforcement entity to the person of the leading member of its management no matter how tempting that might be. He called on the EFCC to be more open to plea bargains by suspects or defendants and to work more closely with the courts in appropriate cases, utilising the plea bargain innovation in the Administration of Criminal Justice Act, as amended. He further suggested that the Commission should also respect the informal classification of offences into what he said could be loosely termed as “process” or “administrative” crimes such as unwitting flouting of the KYC(Know Your Customer/Client) requirements of money laundering statutes by defendants other than banks and financial and allied institutions where it is apparent that such defendants inherently lack all the paraphernalia and wherewithal to consistently conduct the necessary due diligence in financial transactions, and “substantive” crimes such as obtaining money under false pretexts, money laundering, stealing, bank frauds, etc. He contended that there are invariably actual victims unlike the case with “process” or “administrative” type crimes in which there is usually only a nominal victim, usually the state. He suggested that such approaches as he suggested would help negate or completely avoid any impression or perception that the Commission seeks the destruction and not just the punishment and reform of those it prosecutes.

Publicly available information and investigations by our reporters as well as our sources seem to support some of the observations of Okpaleke. Courts, particularly the Federal High Court, appear to have generally tended to approve most plea bargain agreements entered into by the EFCC and defendants being prosecuted by it, with such defendants being convicted but sentenced to lesser punishment, suggesting that the “oppressive” tag foisted on the EFCC and its acting Chairman by Senator Grassley may after all be ill-informed. Some courts have even recommended plea-bargaining to both the commission and defendants facing trial. Outside the terrain of plea bargains involving public officials or former public officials and politically exposed persons is the plea bargain arrangements in EFCC’s case against Saeed Hussain at the Federal High Court, Lagos, Nigeria.

This particular defendant who had no prior criminal record and cooperated throughout with the Commission in its investigations succumbed to ill health in the course of his arrest, detention, and prosecution but eventually submitted to a plea bargain arrangement, pleaded guilty to the charge and was convicted by the court and was sentenced to a fine in a sum of money which involved a very substantial part of the money in the transaction, and to an undertaking to the Federal Government of Nigeria concerning future lawful conduct of his business and that of his companies.

The terms of the court’s judgment in that example was subsequently satisfied by the defendant with the payment of the fine and issuance of the guarantee, after which his lawyers applied to the Commission for the release of his international passport and other property seized by the court, all of which the Commission promptly released, enabling him to seek further medical attention. That particular defendant from all available information has since remained law-abiding and kept to the terms of the undertaking given, having experienced the sobering effect of being subjected to the criminal justice system and processes, while EFCC on its part has kept to the agreement reached with him by withdrawing against him other charges arising from the same transaction before other judges of the Federal High Court, Justice Oguntoyingbo. Contrary to the U.S. Senator’s generalised imputation of bad faith to EFCC’s efforts, the striking out of the other charges against Hussain by the Federal High Court at the instance of the Commission due to the defendant’s earlier conviction by another judge of the court under the plea bargain speaks well of the Commission’s good faith and integrity under Magu.

Another instance is the case of Peoples Democratic Party (PDP), former spokesman, Chief Olisa Metu, who was prosecuted by EFCC before the Federal High Court, Abuja, and ultimately convicted and sentenced to custodial punishment. In the course of delivery of the judgment of the court, the trial judge, Justice Abang, actually appeared to suggest that Metu could have explored settlement (plea bargain) with the commission and had opportunity of doing so but for his pride.
Anyanwu writes from Lagos.