19 May 2015.
Our Position and a Call for the Rejection of the Agreement by the UK, US, Swiss Governments and the International Community
Transparency and accountability has remained a major problem besetting successive governments in Nigeria. For nearly four decades, the accounts of the Nigerian National Petroleum Corporation, NNPC, were not audited. But public outcry changed all of that, to the extent that when the accounts were eventually audited by a private firm, PriceWaterHouse Coopers, the audit report exposed widespread irregularities in the management of the finances of the NNPC.
Therefore, the proposed repatriation of over $480 million stolen by the late Nigerian Head of State, General Sani Abacha from the United States of America to the Nigerian Government has so far been shrouded in unbelievable secrecy in spite of efforts by Nigerian Civil Society Organisations led by the Africa Network for Environment and Economic Justice (ANEEJ) and its international Civil Society Allies to draw the attention of concerned parties and stakeholders to obvious anomalies that undermine international instruments and Nigerian laws as the Nigerian parliament and CSOs are completely sidelined in all transactions, undertakings and agreements relating to this arrangement.
Civil Society Shadow Report of the Nigeria Network on Stolen Assets (NNSA) published by the Africa Network for Environment and Economic Justice, ANEEJ, on the Public Expenditure Management and Financial Accountability Review, PEMFAR, (2005) on the $500million repatriated from Switzerland, showed that the agreement and use of repatriated loot did not meet standards required by, nor reflect the spirit envisaged by Article 5 of the United Nations Convention Against Corruption, UNCAC, which states clearly that ‘each State Party shall, in accordance with the fundamental principles of its legal system, develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability’.
The Nigeria Public Expenditure Management and Financial Accountability Review (PEMFAR) was initiated by the World Bank to execute reform in the budget spending of the Nigerian Government by analyzing the use of the repatriated Abacha Loot in implementing the National Economic Empowerment Development Strategy (NEEDS) in support of Millennium Development Goals’ (MDGs) priorities of education, health, and basic infrastructure (power, roads, and water) for poverty eradication.
The background for the PEMFAR is the February 2005 agreement by the Nigerian and Swiss Governments to repatriate the Abacha family’s bank deposits in Switzerland in the amount of US$458 million (the so called “Abacha Loot”). To secure release of these funds, the Nigerian and Swiss governments, in cooperation with the World Bank, agreed that an analysis of the additional budget expenditures funded in 2004 from the repatriated funds must be undertaken by Nigeria and the Bank to ensure the repatriated funds’ contribution to Nigeria’s poverty reduction strategy in alignment with (MDGs). Civil Society Participation in the process was also a part of the condition for the repatriation. Regrettably, the whole process of repatriation and utilization of the repatriated funds fell short of all expectations even though the Nigerian Government and the World Bank went celebrating what they considered a “successful agreement”. But a Civil Society Shadow Report proved that the entire process was flawed and fell far short of international best practices.
Against this backdrop, and to forestall the same pitfall, we the undersigned civil society groups in Nigeria seek to put local, national and the international community and interested parties on notice for action against the obnoxious agreement already brokered in July, 2014, between the Representatives of the Federal Republic of Nigeria and the Abacha family and the impending repercussions that that obscene agreement portends for the fight against corruption, the future of Nigeria, and the devastating effect it unleashes on the global effort to rid the international financial system of illicit funds.
We establish our collective beliefs that there are irregularities in the said agreement between the Federal Government of Nigeria and the Abacha Family. These irregularities [see below] breach globally accepted standards and templates in the fight against corruption as contained in Article 5 of the United Nations Convention Against Corruption, UNCAC. They contravene Civil UNCAC Society Coalition resolutions at the 6th session of the UNCAC Conference of States Parties and of the Implementation Review Group and Working Groups, and grants recipients of stolen monies stashed abroad tacit immunity from giving up the proceeds of their crimes and criminal prosecution in a court of competent jurisdiction.
Specifically we find the following areas of the Agreement unacceptable, misleading and generally inimical to the fight against corruption and the interest of the people of the Federal Republic of Nigeria.
- The Parties – Most of the diction, such ‘resolved matters’, ‘parties’ and all items under Article 2 couched under RESOLUTION OF DISPUTES, as contained in the agreement appear ambiguous and lax, and would appear that great effort was not expended to properly identify parties to be bound by the terms of the Agreement as ‘affiliates’ to the Abachas could be anywhere from 100 – 1000 individuals or corporate entities.
- Plea Bargain – There is something negatively novel about this Agreement that is indicative of the Nigerian government’s double standard approach towards the fight against corruption or the total lack of will power to confront corruption. Clearly the Abacha Family neither in part nor in the whole circumstance accepted to have been beneficiaries of the funds to be repatriated, or accepted guilt or liability as individuals or concerns represented as the ‘Settling Parties’.
- The total effect of the agreement and the liabilities and obligations of parties rest heavily on the term conveniently couched ‘Resolved Matters’ – the definition of which is open ended and leaves a very wide margin for ambiguities to be imputed into the Agreement to the advantage of the settling parties. It therefore appears that the agreement was deliberately skewed in favour of the settling parties in order to escape criminal liability both present and future.
- This Repatriation Agreement which binds Nigeria is without recourse to relevant institutions in Nigeria like the National Assembly and CSOs, is nothing but a “slap on the wrist” for the Abacha Family.
Consequently we are bewildered at the reticence of the Honourable Attorney General of the Federation and the Coordinating Minister of the Nigerian Economy, who ignored several letters seeking clarifications on areas of the Repatriation Agreement which we consider grey.
In the light of these inherent flaws, but most of all on the perception that the parties and framers of the Agreement deliberately operated on a code of secrecy without carrying the Nigerian public along with a view to shortchange and frustrate the people and government of the Federal Republic of Nigeria. We recommend that:
- The incoming administration of General Muhammadu Buhari should repudiate this agreement on the grounds that it: is a strong precedence for more corruption, endangers Nigeria’s fledgling democracy, will engender a climate for setting up “harmful role models”, erodes the rights of citizens to hold government accountable and speak truth to it, and gives room for the cultivation of impunity and a possibility for re-looting the loot.
- The out-going administration should provide a comprehensive independent audit on how other recovered and repatriated Abacha loot were expended so as to give insight into the management of public finance in Nigeria.
- In line with the avowed anti-corruption stance of the incoming administration, the President-elect should move quickly to set up machinery to fast track the signing into law of the Proceeds of Crime Bill, POCA. We believe that the absence of a domestic framework on how stolen wealth is used creates room for mismanagement of recovered assets.
- We call on the UK, United States and Swiss Governments together with the World Bank and international community to reject this Agreement and suspend negotiations on actual repatriation of all recovered funds with the Nigerian government until all issues surrounding this most obnoxious agreement are satisfactorily resolved.
- We urge the setting up of an independent committee comprising the EFCC, NEITI, and Civil Society practitioners to be headed by a retired Chief Judge of impeccable standing, to investigate and reconcile all the issues surrounding the recovery and repatriation of the Abacha loot.
We restate our commitment to the fight against corruption and enthronement of good governance as the only solution to the problems facing the economic growth and development of this country.
For any further information, contact ANEEJ Secretariat at:
No. 39, Oyaide Avenue
Off Benoni Street, G.R.A.
Benin City, Edo State
Plot 208, Zakariyah Maimalari Road
Off Herbert Macauley Way, Central Area
Rev. David Ugolor
Nigeria Network on Stolen Assets (NNSA)
Socio-Economic Rights and Accountability Project (SERAP)
Comrade Leo Atakpu
Deputy Executive Director
Africa Network for Environment & Economic Justice (ANEEJ)
Mohammed Bougei Attah
Procurement Observation and Advocacy Initiative
Say No Campaign Nigeria
Auwal I. Musa (Rafsanjani)
Civil Society Legislative Advocacy Centre (CISLAC)
Centre for Social Justice (CSJ)
Public Policy Analyst
Spaces for Change, Nigeria
Publish What You Pay Nigeria Campaign
Civil Society Network Against Corruption (CSNAC)
Development Alliance for Niger Delta (DAND)
Mr. Salaudeen Hashim
West Africa Civil Society Forum (WASF)
Zero Corruption Coalition (ZCC)
Coalition Against Corrupt Leaders (CACOL)