Human rights lawyer, Mr. Femi Falana (SAN), speaks with BAYO AKINLOYE and TOBI AWORINDE on President Muhammadu Buhari’s anti-corruption fight and why ex-President Goodluck Jonathan cannot be tried for the looting that took place under his watch
Considering the alleged looting of the national treasury and ongoing revelations of money approved by the past administration for arms purchase, do you think the current administration can really deliver on its promises within four years?
To deliver on its promises, the Muhammadu Buhari administration needs to raise a huge sum of money. It can only succeed by taking radical decisions with respect to the economy. The implementation of the Treasury Single Account is commendable. It has stopped the illegal diversion of public funds through the proliferation of bank accounts. Some of the accounts were not even known to the government. In spite of the dubious campaign of neo-liberal forces, the government has to ban the importation of more goods that can be produced locally. No nation has developed without restricting imports to the minimum. The government has to speed up work in the area of loot recovery. Within the last six months, the government is reported to have recovered N350bn. From my calculations, much more can be recovered. For instance, the arms procurement panel confirmed that a total sum of $2.1bn and N643bn, that is $6bn, was criminally diverted by a few bandits from 2007 to 2015. Part of that fund has been located in some banks by the Economic and Financial Crimes Commission. The Nigerian National Petroleum Corporation received $11.8(bn) as dividends from the Nigeria Liquefied Natural Gas between 2004 and 2014. Only $2.1bn has been accounted for. The remaining sum of $9.6bn has to be recovered.
The Nigerian Extractive Industries Transparency Initiative has requested President Buhari to recover the sum of $19bn which ought to have been paid into the Federation Account by the NNPC and some oil companies. Section 5 of the Deep Off Shore Production Sharing Contracts Act enacted in 1999, which excluded oil and gas companies from paying royalties in production areas in excess of 1,000 meters depth, expired last year. The incentive was to last for 15 years. In another development, an oil company was asked by the NNPC to pay $2.5bn for the renewal of three oil blocks. That was sometime in 2009. For the same product, a Chinese company offered $5.8bn; only $600m was from the oil company by the government. When I protested the monumental fraud, an additional sum of $250m was collected from the oil company. During the so-called economic meltdown, the Central Bank of Nigeria bailed out banks (with) a loan of $7bn. Since that crisis of global capitalism, the CBN has subsidised the rich to the tune of $6tn through the Asset Management Corporation of Nigeria and all sorts of intervention funds administered by the CBN under Professor Chukwuma Soludo and Mallam Sanusi Lamido Sanusi, the current Emir of Kano. Both distinguished Nigerians, who are now campaigning for devaluation, unregulated trade liberalisation, removal of fuel subsidy and other dangerous policies of imperialism, are not asking the government to recover the huge loans lavished on rent collectors masquerading as captains of industry.
Yes, that is what I am saying. It is the monumental fraud associated with the fuel subsidy fund that has to be removed. How many Nigerians are aware of the existence of the petroleum equalisation fund – an agency of government set up to ensure uniform prices of petroleum products throughout the country by subsidising marketers? With that agency, a litre of premium motor spirit is not supposed to be sold in any part of Nigeria for more than N87. What has happened to the hundreds of billions of naira collected by the agency annually? In 2011, our celebrated (former) Finance Minister from the World Bank, Mrs. (Ngozi) Okonjo-Iweala, authorised the release of N2.5tn for fuel subsidy when only N245bn was appropriated by the National Assembly. Has she accounted for the large-scale fraud? Since the investigation of the fraud was compromised because of the involvement of highly placed crooks that were close to the previous administration, the Buhari administration has to study the reports of the inquiries conducted by the House of Representatives, the EFCC and the Aigboje Aig-Imoukhuede committee on the fraud. The (Olusegun) Obasanjo administration removed fuel subsidy eight times and saved billions of naira. So confident that there was sufficient money to fix the roads, the government demolished all toll gates in the country.
(Ex-)President (Goodluck) Jonathan set up the Subsidy Re-investment and Empowerment Programme to manage the fund realised from another removal of fuel subsidy. The government has to locate the funds and redirect them for the provision of social services. What of the billions of dollars wasted on the so-called turnaround maintenance of refineries from 1999 to 2015? In opposing the removal of the so-called fuel subsidy, I have advocated that the 445,000 barrels of crude oil allocated daily to the NNPC for domestic consumption be refined in Africa and not in Europe and the United States, to reduce the enormous cost of freight. Côte d’Ivoire refines 60,000 barrels per day. There are other refineries in African countries which are prepared to refine for us. But the NNPC prefers to refine in Europe and America or engage in oil swap scam. Instead of wasting so much money on outdated refineries, I have suggested to the government to build modular refineries or invite genuine investors to intervene in that area. President Buhari should look at these other options and continue to discountenance the World Bank, which is championing the campaign for fuel subsidy removal. Since the Dangote refinery may not be completed until 2018, the Federal Government has to adopt urgent measures to address the crisis of fuel subsidy.
Some people have accused the Buhari government of impunity for not respecting the human rights of detained suspects. As a human rights lawyer, are you not worried?
Human rights are not absolute. For instance, the right to liberty guaranteed by the Constitution can be legitimately curtailed if there is reasonable suspicion that anyone has committed a criminal offence. None of the suspects has been detained illegally. The EFCC obtained remand orders to detain the suspects. To search their homes and offices, the EFCC secured search warrants from magistrate courts. Thus, where is the evidence of impunity? Unlike petty criminals, whose homes are invaded and are arrested and detained for years without trial in dehumanising prison conditions, the privileged criminal suspects are politely invited by the EFCC. If they have to be detained, they are kept in cosy EFCC cells on the orders of courts. In fact, in a display of class solidarity, one of our judges usually admits influential people to bail on self-recognition, notwithstanding the gravity of the offence. Even in the United States, the bastion of bourgeois democracy and rule of law, all criminal suspects are handcuffed. Here, you cannot handcuff a big man. When the EFCC under Mr. Nuhu Ribadu handcuffed a former Inspector General of Police, the government apologised in writing for the madness of the EFCC. But on a daily basis, poor criminal suspects are handcuffed and leg-chained. That is the nature of a neo-colonial legal system designed to shield the looters of public treasury from prosecution. Many lawyers now approach the courts to secure interim or perpetual injunction that criminal suspects, who have stolen money meant for arresting ecological degradation of the environment or for building hospitals and schools, should not be investigated or prosecuted. That is a violation of the human rights of the victims of corruption. The baseless campaign of calumny is aimed at blackmailing the EFCC to drop charges against those who have admitted their culpability in the sharing of blood money. Unlike other cases of corruption, those who diverted billions of naira for arms procurement are vicariously responsible for the reckless killing of 25,000 soldiers and civilians by the well-armed insurgents. Hence, they have stolen blood money.
So you support the recovery of the country’s looted wealth?
I fully support the ongoing recovery efforts. But the government has to do much more as time is not on its side. With the assurance of Western governments to assist in the recovery of the loot stashed away in foreign countries, the government has to take urgent steps to secure court orders. Without obtaining court orders, the foreign banks will not release the funds. Locally, stolen funds and properties sold at give-away prices by officials of previous regimes have to be recovered through administrative measures and fast-track criminal procedure. With the recovery of the country’s looted wealth, President Buhari cannot complain of lack of funds in the implementation of welfare programmes for the Nigerian people who have been sentenced to eternal agony due to grand corruption and gross mismanagement of the economy by the ruling class.
The Federal Government had said looted monies were being returned but didn’t say whether it would prosecute those who returned the loot. What are the implications of this?
Under our law, it is illegal to give anyone a pat on the back for returning looted wealth. In other words, it is illegal and immoral to confer immunity on any criminal suspect. Since there is equality before the law, the government cannot charge a suspect to court for stealing a handset of N10,000 while you clap for another suspect who has stolen N10bn for building a hospital. While the fellow who stole a handset has inconvenienced the owner, the other criminal has caused the premature death of thousands of citizens who were denied access to medical facilities. Can you imagine that we have lost over 20,000 soldiers and civilians who were killed by the dreaded Boko Haram because a few people stole the $6bn earmarked for arms procurement to prosecute the war on terror? Now if the government pardons the suspects for returning the loot, I shall ask the International Criminal Court to prosecute them for crimes against humanity. Those who want to return blood money or stolen wealth should be encouraged by the government, but they must be brought to justice. Otherwise, the government will lose the moral right to prosecute armed robbery suspects, terrorists and other dangerous criminals.
The government cannot say that any group of looters will not be prosecuted. It does not have the power to do that. The EFCC and the Independent Corrupt Practices and Other Related Offences Commission will have to charge them to court but because they have not wasted the resources of the State in going through the rigours of a trial, the trial court will be required to be lenient in sentencing them having regard to the sense of remorse exhibited by them in voluntarily returning the loot. There is the urgent need to have a clear policy on the matter. And if for any reason the government does not prosecute them, that is not the end of the matter; another regime may reopen the files as the statute of limitation is not applicable to corruption cases. Can you believe that the criminals who assassinated President Thomas Sankara of Burkina Faso in October 1987 have just been put on trial in Ouagadougou (Burkina Faso)?
Should Buhari’s government be more transparent in its fight against corruption?
I have advocated that a special account be opened to warehouse the recovered loot, while the Federal Government should commit itself to spending the fund on job creation and infrastructural development. The government has to display a high degree of transparency on loot recovery to avoid our experience with the Abacha loot which has been re-looted. A case of ole gbe ole gbaa (a thief was dislodged of a stolen item only for another thief to steal it).
It is commonplace for accused persons to seek medical treatment abroad in the middle of high-profile corruption cases. How can the legal system be prevented from being compromised by such persons?
Please don’t engage in generalisation. The poverty-stricken accused persons have no passports. Neither can they afford medical expenses even in Nigeria, not to talk of going abroad. It is the pastime of the so-called politically exposed persons who have engaged in grand corruption. When the ICPC and EFCC were manned by Justice Mustapha Akanbi (retd.) and Nuhu Ribadu respectively, that was not the practice. Those who were charged with serious cases of corruption and other economic crimes, like obtaining by false pretence, were not admitted to bail. But as soon as the EFCC was taken over by ex-governors who were under investigations assisted by the then Attorney-General of the Federation and the IGP, Michael Aondoakaa and Michael Okiro, judges found that the government was not committed to the fight against corruption. That was how the courts became relaxed. That was when the Court of Appeal ruled in the case of James Ibori versus Federal Republic of Nigeria that bail was automatic and that once an accused person was admitted to bail, he was entitled to have his passport released to enable him to access medical treatment abroad. With the avowed commitment of the Federal Government to end impunity in the country coupled with the Administration of Criminal Justice Act, our judicial policy has to change in the interest of the country. In view of the robust debate on the prohibition of stay of proceedings and interlocutory appeals in criminal trials, the EFCC is now making progress with respect to the corruption cases involving ex-governors and other highly placed criminal suspects. All the same, the government has to fix our hospitals to prevent accused persons and indeed all Nigerians from seeking medical treatment abroad.
Former Petroleum Minister, Mrs. Diezani Alison-Madueke, has been under a lot of criticism since being investigated for alleged bribery and money laundering in the United Kingdom. Do you think the criticisms are warranted?
Unlike the practice, the British anti-graft agencies have quietly conducted the investigation. She was only arrested and had her house searched when some substantial progress had been made in the investigation. And since then, no further information has been provided on the matter. This is a lesson for our anti-graft agencies. However, the criticisms were born out of frustration by Nigerians. But we have to realise that she, like other criminal suspects, are presumed innocent until the contrary is proved. As a civilised people, we should refrain from subjecting accused persons to media trial.
What do you think a second term under former President Goodluck Jonathan would have looked like?
It would have been a disaster of catastrophic proportions for the nation. For instance, the grand looting of the treasury would have continued unabated leading to a serious economic depression. Unrestrained impunity would also have continued leading to the celebration of criminality and grave erosion of national morality. I could not believe that a democratic government could fund armed thugs, lumpen elements and urchins to terrorise innocent people on the streets of Lagos (State). It was a transformation from law and order to anarchy; a transformation from decency to immorality. Luckily, Nigerians decided to prevent the imminent collapse of the country. We must, however, remain vigilant to ensure that impunity is fought and defeated so that the rule of law reigns supreme in the land. In other words, the rule of rulers must pave way for the rule of law.
Do you think Jonathan should be tried for the way he presided over the nation?
So far, the evidence against him is hazy. Approval of projects by the ex-president is not a defence for violating the law of the land on public procurement. Dr. Okonjo-Iweala has admitted that she personally gave the sum of $322m from the Abacha loot to Col. Sambo Dasuki. There was neither presidential approval nor appropriation by the National Assembly. So far, there is no basis to invite Jonathan to account for the missing funds. For instance, it is unfathomable that a man who led a large delegation of pastors and top public officers to seek the favour of God in Israel would turn round to pay N4.7bn to marabouts. For now, let us keep our fingers crossed.
Do you agree with those who think probing Jonathan’s government will encourage future leaders to cling on to power perpetually?
The statement is bunkum. Any leader who clings to power will pay dearly for it like the Charles Taylors and Laurent Gbagbos of this world. This was the choice before ex-President Jonathan. Either to join the club of ex-presidents monitoring elections or cling to power like Mr. Gbagbo at The Hague, he chose the former option and he is enjoying it. He has just returned from Tanzania where he headed an election observer team. If the International Criminal Court was in existence in 1993, the military president General Ibrahim Babangida would not have got away with the criminal annulment of the results of the presidential election won by the late Chief Moshood Kashimawo Olawale Abiola, which led to the killings of several protesters. To prevent President Hosni Mubarak from being taken to The Hague, the Sisi regime had to put him on trial in Cairo (Egypt) for the murder of protesters. Are you not aware that ex-President Hasni Habre is on trial in Dakar, Senegal, for killing about 2,000 people in Chad over 25 years ago? To challenge the culture of impunity in Africa, a body called the Africa Group on Justice and Accountability was established in The Hague last month. It is made of senior human rights and criminal law experts on the continent. One of the main objectives of the group is to campaign against the moves by some leaders to take African states out of the jurisdiction of the International Criminal Court. It is primarily dedicated to hold leaders accountable and promote the rule of law in Africa. With respect to the ongoing inquiries, I am sure that ex-President Jonathan would be flabbergasted by the shocking revelations pertaining to the alleged reckless looting of the treasury by his political aides and others. Instead of encouraging power mongers to cling to power, it is going to caution serious-minded leaders not to betray public trust and to shun the primitive accumulation of money and other worthless assets. The members of the Jonathan administration never contemplated, in their wildest imagination, that they would be kicked out of office. Hence they took to unprecedented daylight robbery of the (nation’s) central bank.
What do you think was Jonathan’s greatest failure?
Ex-President Jonathan handed over the economy to imperialism and its local lackeys. Neo-liberal scholars who were regurgitating the discarded policies of Washington consensus became tin gods. All manners of crooks and swindlers had a field day. President Jonathan was overwhelmed by the responsibilities of the office. Our country became a butt of jokes in the comity of nations. There was a meeting of the United Nations attended by the ex-president with 600 people. He is a simple gentleman who found the business of governance too complex. His understanding of poverty was embarrassing; he believed that Nigeria had become so prosperous because 25 rent collectors invaded the Jomo Kenyatta airport with private jets when he visited Kenya. His lieutenants took advantage of his political naivety to engage in the reckless looting of the treasury.
President Muhammadu Buhari called his ministers round pegs in round holes. Do you think they are who the country needs at such a critical time?
President Buhari is a mature leader. However, the urgency of the crises plaguing the country in many areas requires immediate solutions. The government is slow in responding to issues. It is hoped that that will change with the recent appointment of ministers. Having decided to fight corruption, the government has not realised that corruption has begun to fight back. The government has to reduce the cost of governance. The United States’ Congress has 16 committees, while our National Assembly has over 150 committees. The restructuring of the country should be a priority for the government. The President has to influence his party members to embrace change. For instance, the President and Vice President (Yemi Osinbajo) have declared their assets and made them public. When will the ministers follow suit?
What is the update on the 54 Nigerian soldiers sentenced to death in December last year?
We defended some military officers including two generals and 60 soldiers who were put on trial for demanding for equipment to fight the well-armed insurgents. One of the soldiers could not stand trial and was discharged. Out of the 59 who were tried, 58 were convicted and sentenced to death, while one was discharged and acquitted. Before then, 12 other soldiers had also been sentenced to death for protesting the brutal killing of 10 of their colleagues by the insurgents. All the convicts are currently languishing in an underground cell in Apapa. The prosecution got stuck in producing witnesses to give evidence against General J. O. Komolafe, one of the finest officers the Nigerian Army has produced. Instead of dismissing the case against him, the charge of cowardly behaviour has been allowed to continue to hang menacingly on his head like a sword of Damocles. Of course, you are aware that General Enitan Ransome-Kuti was convicted, dismissed from the army and sentenced to six months imprisonment because Baga was overrun by the terrorists. The general who led the troops to the battlefield withdrew them because the terrorists had superior weapons and outnumbered them. Since the Federal Government has now established through the arms procurement panel that the huge fund set aside to buy military equipment was stolen, we have asked the Army Council and the Chief of Army Staff to quash the convictions and death sentences passed on the soldiers.
The Federal Government has said that the Boko Haram insurgency will not end overnight even though the President gave December as the deadline to defeat the sect. What do you think is still missing in the fight against the insurgents?
No doubt, the government has intensified the war on terror. While the December deadline may not be possible, there is every indication that the government is winning the war on terror. I am confident of success since some elements in the Jonathan administration were sponsoring Boko Haram to dupe the nation of several billions of naira. When Jonathan said that there were sponsors of insurgency in his government, I never believed him. Now, the statement has been confirmed.tweet Follow @@metrolens1