UNCAC Coalition letter to US Attorney General Eric H. Holder re: return of Abacha assets

Berlin, 17 September 2014.

Final disposition of over US$480 million in forfeited assets stolen by former Nigerian dictator

The Honorable Eric H. Holder, Jr.
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

Dear Attorney General Holder:

We are writing to you on behalf of the UNCAC Coalition to express our concerns about the ultimate disposition of over US$480 million worth in forfeited assets stolen by a former Nigerian dictator.

The UNCAC Coalition is a global network of over 350 civil society organisations (CSOs) in over 100 countries, committed to promoting the ratification, implementation and monitoring of the UN Convention against Corruption (UNCAC).

The UNCAC Coalition applauds the efforts that the United States (U.S.) has made so far through its Kleptocracy Initiative to recover the proceeds of corruption and welcomes in particular the forfeiture proceedings initiated by the Department of Justice (DOJ) against the property related to the corrupt conduct of the late General Sani Abacha, the former head of state of Nigeria, and his associates.

On 6 August 2014, a judgment rendered by U.S. District Judge John D. Bates of the District of Columbia authorized the forfeiture of the proceeds of corruption in question.

Nigeria, through the Attorney General of the Federation and Minister of Justice, Mr. Mohammed Bello Adoke, commented that “Nigeria, as the Victim State, is able to have the forfeited assets repatriated to Nigeria to fund development projects for the benefit of the people in accordance with the dictates of Chapter IV of the UNCAC”.[1] Following this statement, the Nigerian Government filed an application with the D.C. District Court requesting the repatriation of the funds to Nigeria.[2]

There is no doubt that Nigeria as a whole suffered from the corrupt conduct of General Abacha and his associates who, as stated by U.S. Acting Assistant Attorney General Raman, “embezzled billions from the people of Nigeria while millions lived in poverty”.[3] There is also no doubt that the related proceeds of corruption “belong to the citizens they [were supposed to] serve” and, as a result, ought to be repatriated; this is in line with the UNCAC which mandates the return of stolen property to the country from which they were taken.

The problem, however, is that there are real grounds for concern about repatriating the funds to the Government of Nigeria for the benefit of the people of Nigeria.

We believe that the Government of Nigeria has shown no genuine inclination to combat corruption and impunity. In particular, most of the key players in the looting of Nigerian resources have remained free from prosecution, if not honored by the Federal government.

By way of example, Mr. Sani Abacha was among 100 people honored by the Nigerian Government as part of the centenary celebrations under the category “Outstanding Promoters of Unity, Patriotism and National Development”.[4] The Nigerian Government also recently announced it had dropped corruption charges against Mr. Mohammed Abacha, the son of late Nigerian dictator.[5] Further Mr. Abubakar Atiku Bagudu – a close associate of the Abachas who, according the DOJ forfeiture complaint, “participated in the conspiracy to steal and launder hundreds of millions of dollars [from the Government of Nigeria]”[6] – is currently in an influential position as a senator of the ruling People’s Democratic Party and represents Kebbi Central Senatorial District. He was also recently appointed to head a panel probing the Nigerian Immigration Service recruitment scandal.[7]

It will be further recalled that in March 2013 President Goodluck Jonathan granted a state pardon to Mr. Dipreye Alamieyeseigha,[8] the former Governor of Bayelsa State who has been targeted by various corruption-related proceedings both in the UK and the US.

Another important source of concern relates to the lack of clarity regarding the use of the US$500 million of Abacha looted funds that Swiss authorities repatriated to Nigeria in the course of 2005-2006. The monitoring report prepared by the World Bank pointed out the absence of proper accounting and reporting mechanisms – those weaknesses necessarily prevented the proper tracking of the returned funds and the detailed analysis of how the funds were actually spent.[9]

For the foregoing reasons, we believe that the Government of Nigeria does not meet integrity and accountability standards sufficient to ensure that the repatriated funds will be effectively “used for the benefit of the Nigerian people” in line with the DOJ’s objectives.[10]

This, however, should not preclude the US Government from repatriating the funds. To withhold the funds would contravene UNCAC provisions and would further penalize the Nigerian people for corrupt behavior of their public officials and governance failures.

Abacha looted funds ought to be repatriated to Nigeria and, in line with a statement made by Jennifer Shasky, speaking on behalf of the Department’s Kleptocracy Initiative, DOJ must “find ways to repatriate or otherwise use such funds for the benefit of the victim country”[11]. It is further worth recalling language that the US delegation attempted to include in the asset recovery resolution that was adopted during the 5th Session of the Conference of States Parties to the UNCAC that was held in Panama in November 2013: “[12bis. States requested to repatriate funds of illicit origin (…) have a responsibility towards societies affected by corruption to make every effort to achieve the repatriation of funds of illicit origin to the countries of origin in order to diminish the negative impact of non-repatriation, including on the enjoyment of human rights, in particular economic, social, and cultural rights in the countries of origin]”.[12]

In line with both those public statements and the international commitments the U.S. made under the UNCAC, the DOJ ought to work with all the countries that received the forfeited funds together with the World Bank in order to 1) repatriate the forfeited funds to Nigeria; 2) ensure that the funds in question are used for the sole and exclusive benefit of the Nigerian people – and particularly the most needy citizens in Nigerian society – ; and 3) prevent said assets from being misused again through corruption.

To that end, the UNCAC Coalition wishes to recommend the U.S. DOJ to establish a trust fund for the Nigerian people into which the forfeited funds would be placed and subsequently disbursed for their benefit.

The U.S. has done this before, and with great success. In 2007, the U.S. DOJ retrieved US$84 million that James Giffen had allegedly used to bribe high-ranking Kazakh officials on behalf of western oil companies and that had been frozen in Switzerland. Due to sensitivities surrounding the repatriation of the funds), it was wisely decided that the funds would not be transferred to the Kazakh Government. Instead, the Governments of the United States, the Swiss Confederation and the Republic of Kazakhstan partnered with the World Bank to establish the BOTA Foundation – an independent, nongovernmental and nonprofit foundation aimed at improving the lives of poor children and families in Kazakhstan through investment in health, education, and social welfare.[13] By all accounts, their work has been extraordinarily successful and, notably, substantially corruption-free.

There is no reason why similar legal arrangements could not be made in the present case – it is quite the contrary.

The UNCAC Coalition further believes that the issues presently at stake are so important that the U.S. DOJ should publish for public comment any proposal or memorandum of understanding that may be drafted in the near future regarding the disposition of the forfeited assets.

We believe that the foregoing proposals are critical for the effective and proper resolution of the case and for the overall fight against corruption. Moreover, they are consistent with both the objectives of the U.S. Kleptocracy Asset Recovery Initiative and U.S. international commitments.

We thank you for taking the time to consider the views of the UNCAC Coalition on this important matter. We would welcome an opportunity to discuss our letter with you further if you have any questions.

Yours sincerely,

Manzoor Hasan
Chair, UNCAC Coalition

Maud Perdriel-Vaissiere
Asset recovery advisor, UNCAC Coalition

cc. District Judge John D. Bates

  1. Media source: FG Welcomes US Effort to Repatriate Abacha’s Loot
  2. Media source: Nigeria asks U.S. to return $500 million Abacha loot to country
  3. DOJ, U.S. Freezes More Than $458 Million Stolen by Former Nigerian Dictator in Largest Kleptocracy Forfeiture Action Ever Brought in the U.S., 5 March 2014.
  4. Media source: Centenary Celebration: FG to Honour 100 Nigerians
  5. Media source: Nigeria: N446.3 Billion Loot – FG Withdraws Charges Against Mohammed Abacha
  6. US v. All Assets Held in Account Number 80020796, in name of Doraville Properties Corporation, at Deutsche Bank International, Limited in Jersey, Channel Islands, Case No. l:13-cv-01832-JDB (D.D.C.), Verified Complaint for Civil Asset Forfeiture, unsealed on March 5, 2014.
  7. Media source: Nigeria asks U.S. to return $500 million Abacha loot to country
  8. Media source: Nigeria pardons Goodluck Jonathan ally, Alamieyeseigha
  10. DOJ, U.S. Forfeits Over $480 Million Stolen by Former Nigerian Dictator in Largest Forfeiture Ever Obtained Through a Kleptocracy Action, 7 August 2014.
  11. Statement made September 19, 2011 during an interview with the ‘Main Justice’ blog.
  12. See: Resolution 5/3-Facilitating International Cooperation In Asset Recovery
  13. The memorandum of understanding (MoU) further included a “Public Finance Management Review (PFMR) Program as well as an “Extractive Industries Transparency Initiative (EITI) Program”.