Femi Falana, SAN and Chukwudi Enebeli discuss the agreement reached by the British and Nigerian Governments, to return part of the funds confiscated from former Governor of Delta State, James Ibori, to the Federal Government of Nigeria, on the condition that the funds are ploughed into specific projects, to forestall the relooting of the funds. The Federal Government has elected and undertaken to utilise the funds, to continue specific road projects which are outside Delta State. The writers denounce this decision as wrong, concluding that the funds belong to Delta State where they were looted from and should be returned to the Delta State Government, or that even if the monies are to be returned on the understanding that they shall be used for earmarked projects, they must be used for projects in Delta State for the benefit of Deltans
Femi Falana, SAN
The decision of the Federal Government to convert the recovered sum of £4.2 million belonging to the Delta State Government, cannot be justified under local and international law. In fact, the controversy surrounding the disbursement of the funds is totally unnecessary, having regard to the precedent that has been established in the country.
Factually, from 1999-2003, the Delta State Government collected statutory allocations from the Federation Account, pursuant to section 162 of the Constitution. Part of the money was diverted from the account of the Delta State Government, by Chief James Ibori. The funds were confiscated during the trial of Chief Ibori; his Banker and Lawyer in the United Kingdom. Since the confiscated funds have been recovered, it has to be remitted to the Account of the Delta State Government.
In AG Lagos State v AGF it was held that the Federal Government lacked the vires to confiscate or seize the funds payable to the local governments in Lagos State from the Federation Account. Since it is not in doubt that the £4.2 million belongs to Delta State, the Federal Government cannot, under any law, seize the funds and use it to fix Kano-Abuja road and Lagos-Ibadan road. Why not Warri-Asaba road?
It is on record that the money confiscated from Governor Joshua Dariye in the United Kingdom, recovered by the Federal Government and repatriated to Nigeria, was returned to the Account of the Plateau State Government. The money confiscated from Governor DSP Alamieyesigha in the United Kingdom, recovered by the Federal Government and repatriated to Nigeria, was remitted to the Account of Bayelsa State Government.
Memorandum of Understanding
The memorandum of understanding signed by the representatives of the British Government and the Federal Government on the disbursement of the recovered funds, cannot supersede the Constitution which has prohibited any form of discrimination in the country. In other words, by virtue of Section 42 of the Constitution, the governments and people of Plateau, Bayelsa and Delta States are entitled to equal rights and opportunities. Since what is good for the goose is good for the gander, the sum of £4.2 million confiscated from Governor James Ibori in the United Kingdom and recovered by the Federal Government, has to be repatriated and remitted to the Account of the Delta State Government.
Indeed, it is trite law that no treaty or agreement between Nigeria and another, shall have the force of law in any part of the country, unless it is enacted into law by the National Assembly in accordance with Section 12 of the Constitution. Since the Agreement on the £4.2 million has not been domesticated by the National Assembly, it is of no legal effect whatsoever.
As far as international law is concerned, the recovered funds have to be paid to the victims of the corrupt practice in Delta State, in accordance with Article 35 of the United Nations Convention Against Corruption which states as follows:
“Each State Party shall take such measures as may be necessary, in accordance with principles of its domestic law, to ensure that entities or persons who have suffered damage as a result of an act of corruption have the right to initiate legal proceedings against those responsible for that damage, in order to obtain compensation.”
It is interesting to note that, some concerned citizens and the Delta State Government have decided to join issues with the Federal Government over the seized fund. Otherwise, another sum of £100 million which will soon be recovered and repatriated from the confiscated funds, will also be claimed by the Federal Government on very shaky legal grounds.
Femi Falana, SAN