The discontinuance of the criminal trial of Tigran Gambaryan, a citizen of the United States of America (U.S.) and a senior executive of Binance Holdings Ltd (Binance) has generated fundamental unresolved issues. The Economic and Financial Crimes Commission (EFCC) had arraigned Gambaryan alongside Binance before a Federal High Court sitting in Abuja on a 5-count charge bordering on alleged tax evasion, currency speculation, and money laundering to the tune of $35 million. Still, it withdrew the charges against Gambaryan on compassionate grounds.
Counsel for EFCC, R. U. Adagba, explained that the decision to discharge Gambaryan was due to his ill health. She added: “A surgery has been recommended, and the recovery process may take some time, which may impact the pace of the trial. The government has reviewed the case and, taking into consideration that the second defendant (Gambaryan) is an employee of the first defendant (Binance Holdings Limited), whose status in the matter has more impact than the second defendant’s, and also taking into consideration some critical international and diplomatic reasons …”
Eulogising the reaction of the US to the development, the Foreign Affairs Minister, Yusuf Tuggar said in part: “President Biden has [thanked] President Tinubu for his partnership and for Nigeria’s partnership, and in particular, for the collaboration between the two countries with regards to … the release of the suspect of the cryptocurrency exchanges company that we are all aware of.”
The government at the federal and state levels is imbued with the authority to terminate any criminal proceedings against any person before any court of law in Nigeria, other than a court-martial.
However, it is constitutionally mandated to have regard to the public interest, the interest of justice, and the need to prevent abuse of legal process before activating this power. The action of the Federal Government in the Gambaryan matter appears to have been predicated on sentimental considerations rather than national interest. Also, the assertion that Binance’s alleged infractions are weightier than Gambaryan’s is misconceived. The law sees companies as artificial persons and would ‘lift the veil’ to apprehend the natural persons (who are usually the top executives) managing the activities of any company accused of perpetrating fraud.
Money laundering is a pervasive crime that poses significant challenges to the territorial integrity of Nigeria. It undermines national security, political stability, economic system, and financial markets, and significantly contributes to increased violent crimes, corruption and other vices with far-reaching consequences. Regrettably, the government failed to avert its attention to the dangers of this hydra-headed evil before halting Gambaryan’s trial.
Curiously, a government that has expended substantial resources and time investigating allegations of money laundering and terrorism financing transactions allegedly perpetrated on the Binance cryptocurrency exchange platform would hastily give in to diplomatic pressure after indicting a principal executive of the Company. If the roles were reversed, would the U.S. grant the same favour? While there are instances where suspects and prisoners are released or exchanged between countries, this case is radically different.
Any government that values its criminal justice system will not sacrifice grave allegations that threaten its security on a platter of sentiments. In 2023, the U.S. imposed heavy sanctions on the self-same Binance via its adjudicatory system. Binance pleaded guilty to violating the U.S. Bank Secrecy Act (BSA) and the International Emergency Economic Powers Act (IEEPA); admitted failing to register money transmitting business, and agreed to pay over $4 billion to the U.S. government. Further, its founder, Changpeng Zhao, of Canadian nationality, pleaded guilty to failing to maintain an effective anti-money laundering (AML) programme in violation of the BSA and, in consequence, resigned from his position as the CEO of the Company.
Demonstrating anti-tolerance to grafts, U.S. Attorney-General, Merrick B. Garland, declared: “…the Justice Department has successfully prosecuted the CEOs of two of the world’s largest cryptocurrency exchanges in two separate criminal cases. The message here should be clear: using new technology to break the law does not make you a disruptor, it makes you a criminal.” Echoing this position, “Secretary of the Treasury Janet L. Yellen said: “Binance … allowed money to flow to terrorists, cybercriminals, and child abusers through its platform … Any institution, wherever located, that wants to reap the benefits of the U.S. financial system must also play by the rules that keep us all safe from terrorists, foreign adversaries, and crime or face the consequences.” And in the words of Deputy Attorney General, Lisa O. Monaco: “A corporate strategy that puts profits over compliance isn’t a path to riches; it’s a path to federal prosecution … if you serve U.S. customers, you must obey U.S. law.”
While the facts of the two cases share similar circumstances, the outcomes are contrasting. The U.S. government pursued the case against the company and its founder to its logical conclusion. Conversely, its Nigerian counterpart decided to soft-pedal against the (now erstwhile) suspect because his alleged offences are of lesser impact. Undeniably, the United States’ drastic approach is the classic standard for combatting serious crimes.
While Gambaryan is not presumed guilty of the charges against him, human dignity, and fair trial are recognised. The gravamen is why the Federal Government interrupted the prosecutorial process instead of allowing it to run its course. The submission that he was only discharged and can be retried is of no moment as it is not given that he will ever return to the country.
The EFCC claimed that the charges were dropped because of Gambaryan’s ill health but failed to disclose the nature of the ailment. Similarly, it is not in the public domain that it presented any medical report to substantiate the purported illness. Even if the claim had been corroborated with credible documentary evidence, why was Gambaryan not made to undergo treatment in Nigeria?
It is elementary law that an accused person must be physically and mentally fit to stand trial. Therefore, where the health of a suspect becomes an issue, he should be granted access to medical treatment. Noteworthy, sickness does not connote innocence; hence can never be a legitimate excuse to dismiss a criminal case without more. The medical condition of an accused person does not touch on the merits of a case. If indeed Gambaryan was battling a serious illness, why did he not apply for bail? Why did the government graciously oblige his request for outright discharge when bail was a more justifiable option? Are other inmates with health challenges also entitled to freedom? Where is the fairness and justice in the dismissal of the case?
The facts of the case strongly suggest that there is more than meets the eye. It would be recalled that the ‘disappearance’ of the third suspect, Nadeem Anjarwallan, a Kenya-British citizen, under the watch of the Office of the National Security Adviser is still unexplained. Nothing indicates that efforts are in progress to track and extradite him to the country. The Federal Government set a dangerous precedent by letting Gambaryan off the hook without a fair trial. This can be misinterpreted to mean that foreigners are entitled to preferential treatment in Nigeria. The termination of the case ostensibly weakens the country’s criminal justice, makes a mockery of our anti-graft fight, and also creates the impression that Nigeria is a fertile ground for criminality. Additionally, it discourages foreign investments as no prudent businessperson would put his hard-earned money in a perceived crime-friendly society.
Strong institutions make strong nations and strong institutions are built and operated by persons of impeccable character, integrity, good conscience, and fear of God. Consequently, the operators of the Nigerian constitution are admonished to refrain from undertaking any action that destroys the country’s criminal justice system. Their unanimous message to every person in Nigeria (whether of local or foreign extraction) should be: ‘If you commit any crime in Nigeria, you will answer for it!’
