The
illegal way in which some countries like the US and Switzerland
frustrate the refund of Abacha loot to Nigeria, has been revealed.
Mr. Femi Falana
Mr. Femi Falana (SAN), a popular Lagos lawyer, has explained how
the governments of the United States of America, Switzerland and Britain
have illegally prevented the repatriation of the remaining Abacha loot
to Nigeria from the vaults of banks in western countries.
In an article, Mr. Falana said the promise of the US and
Switzerland to the government of President Muhammadu Buhari to
facilitate the loot recovery have been met with a breach, which he
described as immoral. He noted that former British Prime Minister, Mr.
David Cameron, who described Nigeria as “fantastically corrupt” did not
accede to President Buhari's request to recover and repatriate Nigeria’s
looted wealth from the United Kingdom.
Aside from this, he observed, the US has continued to frustrate the
legal proceedings filed by Nigeria in Jersey, United Kingdom, for the
recovery and repatriation of the remaining Abacha loot worth $300m.
The government of Switzerland, he also noted, imposed a
conditionality for repatriating the sum of $321 million in its custody
to Nigeria.
Though the US and Swiss authorities keep telling Nigerians that
discussions on the repatriation are in progress, Falana said claims to
such discussions were conceived to mislead Nigerians. A scrutiny of the
roles of both countries, he contended, indicates that they are
frustrating the recovery efforts.
At a conference to mark the International Anti-corruption Day in
Abuja on 8 December, Falana said he accused the authorities of the two
countries of frustrating the legal proceedings initiated by Nigeria for
the recovery and repatriation of the remaining Abacha loot.
Mr. David Young, the Deputy Chief Mission of the United States
Embassy in Nigeria, Falana recalled, responded to the accusation by
saying: “We have legal processes that we have to go through in
order to recover these stolen assets, but we are committed and involved
in dialogue with the Nigerian government to move forward in this
effort.”
While agreeing that the US is committed to the recovery of the
Abacha loot, Falana said it has trenchantly opposed the repatriation of
the loot to Nigeria. As evidence of his claim, Falana pointed to the
erection of hurdles in the path of Nigeria towards the recovery of
$300million Abacha money held by either of Doraville, a company
controlled by the Abacha family or associates or the Viscount in Jersey
(Channel Island).
The Nigerian government, the lawyer noted, had adopted a variety of
strategies to freeze, recover and repatriate monies stolen by the
former military ruler, the late General Sani Abacha and his associates.
“In particular, legal proceedings have been filed in many
courts, including a criminal complaint in Switzerland, and requests for
mutual legal assistance (MLA) to various European nations.
“Others include claims in England (both in the Commercial Court
and the Chancery Division) directly against inter alia Mohammed Sani
Abacha (“Abacha”) and Abubakar Atiku Bagudu (“Bagudu”), together with
companies associated with them, including Doraville Property Corporation
(“Doraville”).
“The various English proceedings were settled after both Abacha
and Bagudu entered into agreements with Nigeria to bring about the
repatriation of the various assets to Nigeria. These assets include the
monies held by Doraville,” Falana said.
As part of Nigeria’s overall strategy, he said, the Federal
Government requested for mutual legal assistance from the US. The
requests, he explained, were made to ensure that the full resources of
the international community were available to enhance Nigeria’s efforts
at recovering the loot and other assets in accordance with the
provisions of the UN Charter Against Corruption (Convention).
“The MLA Request was made on 28 August 2012 in accordance with
the provisions of the Convention. The request was made in the belief
that the USA would give priority consideration to returning any
confiscated funds to Nigeria on the basis that the country was both the
requesting party and the victim of the crimes.
“The United States has itself obtained a default judgment in
the USA against Doraville, which it is now seeking to enforce in Jersey
under the Civil Asset Recovery (International Cooperation) (Jersey) Law
2007,” Falana stated.
However, he noted that if the proceedings are successful, the
monies recovered will be confiscated by the Jersey authorities, subject
to the terms of any asset sharing agreement between Jersey and the USA.
“I understand that there is such an agreement in place, and
that it may provide for any monies so recovered to be divided between
the USA and Jersey in equal shares to the exclusion of Nigeria.
“From statements made by the USA in other proceedings, it
appears that the USA has been careful not to make any clear statement of
its intentions as to the fate of any monies recovered in these
proceedings.
“Certainly there has been no clear statement to the effect that
monies ultimately recovered by the USA in these proceedings will be
returned to Nigeria. Instead, the USA has made vague and unspecific
references to the monies being applied ‘for the benefit of the people of
Nigeria,” argued Falana.
He also recalled that Ms. Debra Lynn Laprevotte, a supervisory
special agent of the FBI, had filed an affidavit in support of an
application made by the US government in England for freezing orders in
support of the same US forfeiture proceedings, which it is seeking to
enforce against Doraville in Jersey.
“In paragraphs 6 and 7 of her affidavit [p.118], Ms. Laprevotte
notes that ‘the US civil forfeiture action has been sealed pending
applications to freeze relevant assets in England, Jersey and France,” he observed.
The lawyer said since 2010, a special unit of the US Department of
Justice has been engaged in “the Kleptocracy Asset Recovery Initiative”
which, seeks through international cooperation, to recover assets
acquired through the abuse of public office by corrupt officials and
their associates so that they may be used for the benefit of the people
of the victim nations.
Ms. Laprevotte, Falana equally observed, in paragraph 86,
acknowledged that as a matter of English law, the English courts would
not enforce a foreign penal law, contending, however, that “the
substance of the proceedings [the US forfeiture proceedings] is the
disgorgement of proceeds of fraud (or other wrongdoing) which is to be
recovered for the benefit of those harmed by the wrongdoing…the current
proceedings seek the civil forefeiture of stolen monies with a view to
their recovery for the benefit of the people of the nation harmed by the
abuse of office.”
The meaning of what she said, maintained Falana, remains unclear.
He wondered if it was intended to explain how the US government proposes
to use such monies for the benefit of citizens of another sovereign
state.
Relatedly, Falana pointed at the correspondence between FBI agent
Elizabeth Aloi (who has also sworn evidence in the instant proceedings)
and Stephen Goadby of the UK Home Office on the issue of the intentions
of the US government in respect of any monies confiscated in England in
support of the US forfeiture proceedings.
In the correspondence, Mr. Goadby, the UK Home Office staff, said: “The
UK may deduct any reasonable expense, but otherwise on the basis that
the UK is satisfied that the funds are embezzled public money from
Nigeria, the UK considers itself under an obligation under UNCAC (if not
in exact language then in spirit) to return the money to the requesting
state. In these circumstances and in principle (in advance of having
the full facts of the case), the UK would return the money to the US
with some confirmation from the US would seek to return the money to
Nigeria.”
Ms. Aloi’s response to Mr. Goadby on 24 June, 2014, Falana said, stated that: “In
connection with the United States’ June 9, 2014, Fifth Supplemental
Request for Assistance in the Investigation of Mohammed Sani Abacha,
Abubakar Bagudu and Others, you have asked the United States to confirm
how the United States intends to spend assets that may be successfully
forfeited to the United States in our civil forfeiture action, United
States v All Assets Held in Account Number 80020796, in the Name of
Doraville Properties Corporation, Et Al., 13-cv-1832 (D.D.C).
“In keeping with US practice of using forfeited funds, where
practicable and not inconsistent with the law, to restore forfeited
property to victims of the underlying criminal violation or to protect
the rights of innocent persons in the interests of justice, we
anticipate that, if funds are forfeited in this matter, the United
States will endeavour to utilise the assets for the benefit of the
people of Nigeria.”
Falana said he observed that Ms. Aloi’s choice of words were
carefully made, indicating a reluctance to confirm that the US
government would repatriate any monies to Nigeria. This, he added, was
highlighted by the English Court of Appeal (USA v Abacha [2015] 1 WLR
1917, which discharged the freezing orders obtained by the USA on the
basis that they had been improperly granted. Recalling the ruling, Mr.
Falana said Gloster LJ, who gave the judgment, agreed to by the other
members of the court, held that the US civil forfeiture judgment was not
enforceable as a matter of English law.
“The justification of the present proceedings is clearly penal
(namely allegedly illegal money laundering in the US), and their basis
is not compensatory. The fact that ultimately the US may, in its
absolute discretion, decide (and its current intentions are not
transparent, to say the least) whether, pursuant to treaty obligations
or otherwise, to remit monies derived from the forfeited assets to the
Federal Republic of Nigeria is irrelevant to the correct
characterization of the US proceedings,” he argued.
In addition, the lawyer argued that the United States of America’s
stance is contrary to the purpose and spirit of the MLA Request, which
was intended to ensure the recovery of monies for Nigeria, the victim
country.
The US, he noted, has demonstrated a complete disregard of any
mutual understanding or co-operation as between itself and Nigeria by
its continued pursuit of forfeiture proceedings against the assets of
Blue Holding (1) PTE Limited and Blue Holding (2) PTE Limited, two
companies linked to Bagudu.
This was despite a letter written by Nigeria’s Attorney-General on
16 June, 2014, confirming that Nigeria and Bagudu had reached a
settlement agreement in relation to the assets and asking that the
Letter of Request from Nigeria to the US can be read in relation to Mr.
Bagudu and/or the Blue Companies should be treated as withdrawn.
“This request was entirely ignored by the USA. The strong
inference is that the USA is pursuing its “Kleptocracy Asset Recovery
Initiative” according to its own agenda, rather than with the intention
of repatriating all or any of the monies recovered to Nigeria.
“I understand that it is suggested by the USA that Nigeria is
estopped from bringing proceedings against Doraville in Jersey to
recover the proceeds of the fraud because the Federal Government made
the MLA Request and because the Federal Government assisted in
facilitating the service of the US proceedings upon Mohammed Sani Abacha
and Bagudu.
“I do not understand this suggestion. As I have indicated
above, the whole point of the MLA Request was to secure the recovery of
monies for the Nigeria.
“It appears that the USA now, however, does not intend to abide
by the spirit of the request, and instead intends itself to apply any
monies recovered by it as it alone sees fit. In the absence of a common
understanding between Nigeria and the USA as to what should happen to
the monies recovered in the Doraville proceedings, no estoppel can
exist.
“I also understand that the USA is suggesting that the
proceedings brought by the Federal Republic of Nigeria against Doraville
are in some way collusive or are otherwise an abuse of court process.
I do not understand this contention. The Federal Republic of Nigeria
is bringing proceedings in Jersey against Doraville to establish
Nigeria’s status as the party which has been defrauded of these monies,
and therefore the party with a paramount proprietary interest in them.
There is nothing artificial or underhand about these proceedings,” he argued.
What Nigeria seeks, he said, is to establish as clearly as possible
its own interest in these monies, adding that it is the frivolous
objection of the USA that has prevented the court from ordering the
repatriation of the fund to Nigeria.
Switzerland’s role, he said, could be gleaned from what ensued
after a letter (Ref No: HAGF/AGG/2014/Vol. 1/1, dated 14 July, 2014)
addressed to the Attorney-General of Geneva, Mr. Oliver Journor, by
Nigeria’s former Attorney-General, Mr. Mohammed Adoke (SAN). The letter
informed the Swiss authorities that Messrs. Mohammed Abacha, Abba Abacha
and their associates had entered into a Repatriation Agreement with
Nigeria. This was to the effect that the Luxemburg fund, hitherto held
by the Canton of Geneva, Switzerland, formed part of the assets to be
forfeited to Nigeria.
Consequently, Mr. Adoke instructed the Attorney-General of Geneva,
upon the confiscation of the Luxemburg fund, to pay as follows: (i) CHF
3,000,000 to the State of Geneva to cover its expenses
(ii) the Swiss Francs equivalent (CHF) of USD 9, 703,141.67
(corresponding to 4% of the gross amount of USD 242,578,541.72 recovered
from Liechtenstein on 23rd December, 2013 and 25th June 2014), plus 4%
of the gross amount of the forfeited Luxembourg in favour of the account
of Mr. Enrico Monfrini, in settlement of his professional fees.
(iii) the Swiss Francs equivalent (CHF) of USD 6, 792,191.17
(corresponding to 4% of the gross amount of USD 242,578,541.72 recovered
from Liechtenstein on 23rd December, 2013 and 25th June 2014), plus
2.8% of the gross amount of the forfeited Luxembourg Assets in favour of
the account of Mr. Enrico Monfrini, in settlement of the professional
fees and expenses of the attorneys of the Abacha family.
(iv) The euro equivalent (EUR) of USD 5,000,000 to the account of
Mr. Enrico Monfrini, as a retainer for the action to be brought against
MM Warburg & Co. Luxembourg SA and other potential defendants.
(v) USD 750,000 on account of HBK Investments Advisory SA, in
settlement of their professional fees for the management of the
Luxembourg assets.
(vi) The balance of the forfeited Luxembourg assets should be
converted into US Dollars and paid into the special recovery account of
the Nigerian Government with the Bank for International Settlements.
“In line with the instructions of the Attorney-General of
Nigeria, the Swiss Government has paid the professional fees set out in
(i) to (vi) above on or about December 23rd 2014. However, the Swiss
Government has refused to repatriate the balance of $321 million to
Nigeria without any legal justification whatsoever.
“In order to further delay the repatriation of the said sum of
$321 million the Swiss Government blackmailed Nigeria to allow the World
Bank to monitor the projects to be executed with the fund. Although the
Government of Nigeria agreed to the illegal conditionality, the Swiss
Government has refused to repatriate the fund.
“Having regard to the fact that the World Bank had conspired
with a former Finance Minister in Nigeria, Dr. (Mrs.) Ngozi
Okonjo-Iweala, to produce a fake report listing several projects, which
were not executed in any part of Nigeria, the attempt to involve the
bank in the management of the fund by the Government of Nigeria is
fraudulent. It is also a subversion of the sovereign rights of the
people of Nigeria,” Falana submitted.
He concluded that the idea of fresh dialogue being suggested to by
the US would further delay the recovery and repatriation of the $300
million. Falana called on President Barack Obama to ensure the
withdrawal of objections filed in the recovery proceedings before the
end of his term of office He also called on the government of
Switzerland to repatriate the sum of $321 million of the Abacha loot to
Nigeria without any further delay.
- Via Sahara Reporters
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