Ownership of Ibori loot: Matters arising
On Tuesday, 9 March 2021, national newspapers widely reported that the United Kingdom (UK) has signed a Memorandum of Understanding (MoU) to return the sum of £4.2 million of assets plundered by former Delta State Governor (1999 – 2007), James Ibori. That was good news. But it was short-lived by the statement credited to the Attorney General of the Federation (AGF), Abubakar Malami, SAN, to the effect that Ibori loot was not the property of Delta State but that of the Federal Government. For the records, Ibori plundered the commonwealth of Delta State and laundered same into the UK financial system. Consequently, the UK Court convicted him for money laundering, conspiracy to defraud and forgery, and ordered the confiscation of his illicitly acquired assets.
The AGF predicated his statement on the fact that the law breached by Ibori’s conduct is a federal law, that parties involved in the negotiation for the repatriation of the assets are national and not sub-national governments, and that the Federal Government is the victim of the crime. Other eminent lawyers have argued in AGF’s support by alluding to the fact that the UK owned the recovered assets and that the country did not have to repatriate the assets but did so out of benevolence, and the MoU between Nigeria and the UK. However, other equally eminent lawyers, led by Femi Falana, SAN, have countered them.
But with due respect, the AGF and his supporters miss the point. First, though the laws breached by Ibori are federal laws, they are laws applicable to Delta State. Interestingly, Ibori’s conduct also violated the existing Delta State laws on transparency, probity and accountability. Second, the AGF misfired regarding his contention on the parties that participated in the negotiation for the repatriation. That only the Federal Government participated or that Delta State government could not participate in talks for the repatriation is a function of the reality of international law which insists that the symbol of the sovereignty of every state (including a state that comprises federating states) must be the lone voice to articulate the interests of the state in the international arena. Such a symbol in Nigeria is President Buhari, the head of the Federal Government. But it must be recalled that the international legal regime requires such organized representation in order to avoid cacophonous inter-state relations and not for the symbol to use it as a tool to perpetrate injustice or to subvert the interests of sub-national governments within the territorial state. Third, it is true that Nigeria is a victim of Ibori’s plunder, afterall, the country suffered reputational damage as a result of the reportage of his activities in the international media. But the AGF ought to know that there is no reasonable, logical or coherent way to flaunt the victimhood of Nigeria without simultaneously and necessarily referring to the fact that the people of Delta State are the ultimate and specific victims of such plunder. Could the AGF have forgotten that the assets in question were originally part of the chunk to which Delta State was entitled on the basis of the Federal Allocation Formula?
Fourthly, it is quite surprising that the AGF and his supporters are talking in ways that implicate sovereignty and international law without any direct or even indirect allusion to the international grundnorm on the recovery and repatriation of assets derived from corruption – United Nations Convention against Corruption (UNCAC) 2003. Nigeria and the UK are both states parties thereto. According to article 57 of the UNCAC 2003, every state party is obligated to repatriate recovered assets to prior legitimate owners or victims of the underlying crime. This leads me to the fifth point in relation to the argument that the UK owned the assets and merely demonstrated benevolence in handing them over to Nigeria. I find this argument patently ridiculous and laughable. Ibori was convicted for his conduct in the territory of the UK. That entitled the UK to the associated funds. But the story does not end there. The assets laundered into the UK territory were traceable to the prior predicate offence of (foreign) plunder or corruption committed by Ibori in Delta State, Nigeria. This is the twist. At this point, the UK cannot claim ownership of the assets because, unlike the so-called assets derived from victimless crimes such as drugs trafficking that the custodial state could rightly possess, assets generated from corruption cannot be so claimed because there are known and identifiable victims however faraway they may be. Therefore, the UK is repatriating Ibori loot not necessarily out of international comity, friendship or benevolence but in compliance with its obligation under the UNCAC.
Furthermore, why will the UK repatriate the assets to Nigeria if not for the fact that investigations and findings revealed that Ibori plundered the assets of Delta State to the economic detriment of its people? The assets could not by any stretch of the imagination be said to have been made available for Nigeria to possess and allocate at its whim and caprice, that is, at the expense of the people of Delta State.
In the seventh place, there is the argument about the sanctity of the MoU between Nigeria and the UK. MoU is an inter-governmental agreement between executive branches of governments for desirable purposes. By the way, article 57(5) of the UNCAC envisages a situation where the requesting State (Nigeria) and the requested State (the UK) will draw up the modalities (such as the MoU) in order to fine tune the thorny matters arising from the necessity to repatriate recovered assets for the ultimate purpose of restoring such assets to prior legitimate owners or victims located in foreign jurisdictions. Therefore, the MoU between Nigeria and the UK is a child of the UNCAC and, with the exception of a bastard, a worthy child cannot deny its parentage. The MoU has the remit to fulfill, and not to undermine or compromise, the purpose of the Convention. The UNCAC supersedes the MoU. But the MoU between Nigeria and the UK would be acting inconsistently with the letters and spirit of the Convention if it obligates or allows the Federal Government to utilize the assets on developmental projects located outside Delta State.
To be continued tomorrow.
Dr. Igbinedion is senior lecturer, Department of Jurisprudence and International Law, Faculty of Law, University of Lagos. He is also a consultant on anti-corruption models and asset recovery.
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