Who owns State Government funds which became loot recovered by the EFCC? Editor OGBUAGU ANIKWE examines a controversial law that compels states in Nigeria to forfeit assets stolen by local elected officials
The anger that seized me in 2015 returned yesterday when I heard that, like Enugu, Delta State was going to lose its recovered looted assets to the Federal Government. Nigeria and the United Kingdom yesterday began the process for returning 4.5billion Pounds Sterling looted by a former Delta State governor and his associates. Federal Attorney General, Abubakar Malami, said the funds will be used to complete three projects – the Second Niger Bridge, Abuja-Kano Expressway, and Lagos-Ibadan Expressway.
The Federal Government shouldn’t be allowed to use the law to seize property that belong to States and local governments.
Our people have a saying that when mourners carrying remains of their loved one pass by our homes, what they are bearing looks to us like firewood. For so long I, like many of our compatriots, never bothered about the justice of the case when states forfeit to the Federal Government their funds and assets stolen but recovered by the Economic and Financial Crimes Commission (EFCC).
The injustice of it was brought home to me in 2015 when my home state, Enugu, became a victim. EFCC had investigated one of our former governors and eventually used the courts to seize monies and assets stolen by the governor during his 8-year reign. The matter almost became personal to me when it was established that some of the major funds diverted and salted abroad belonged to five local government councils, including Awgu, my home local government. Other affected LGAs were Aninri (Sen. Ekweremadu’s LGA), Enugu South (Gov. Jim Nwobodo and Sen. Ken Nnamani’s LGA), Igbo-Etiti (the LGA of the powerful Nwodos), and Isi-Uzo.
My surprise and annoyance at the time came from the reality that our Courts routinely ruled that these funds be forfeited to the Federal Government. My friends who were lawyers said to me that this was the law and there was nothing anyone could do about it.
I disagreed.
In my view, this law is discriminately applied, inequitable, asinine, and unreasonable. I will attempt to frame my disagreement in ways that show that this law is a brazen dispossession of property of citizens in our nation.
Firstly, as is the case in Enugu, there was no evidence that the true owners of the funds – in this case, the five local government councils – were implicated in any way in the brazen executive heist. The funds were intercepted from federal allocations sharing point, confiscated, and diverted before they could reach the owners – the government and citizens of the local governments. Did I hear you ask why the Local Council Chairmen did not protest at the time? What chairman can stand up against a governor who wants to confiscate his or her Council’s federal allocations, even as we discuss today?
Secondly, the federal authorities and the anti-graft agencies were able to recover the funds by proving that they belonged to the federal, a State or a Local Government! Without clear proof of the source of stolen funds, it would have been extremely difficult to get this money back into the country, if they were spirited abroad by state and federal thieves. It is the same with our local courts; EFCC was able to advance convincing proof that the funds in dispute were stolen from public treasuries in Enugu and Delta States.
Thirdly, why are the laws made to operate in a discriminatory manner? When citizens of say, United Kingdom, petition EFCC against our nationals who defraud them, does the EFCC keep the money recovered from the fraudsters or return them to their owners who petitioned for the recovery? Is this not the same principle under which we have been getting back looted funds and assets, if I may ask? In other words, what stops western countries from enacting similar hollow legislation and using their courts to seize them for their own use?
Fourthly, why are our courts not seeing through the legislation that does not distinguish between owners of stolen funds and governors who were elected to keep them in trust for a certain period of time? When it is established that looted funds or assets belong to a State or local government, this means that the funds and assets belong to the people of the state and local governments. They are NOT the personal property of elected politicians and their cronies.
One of the most recent arguments I have heard is that, in the case of Delta State, the money should be forfeited to the federal government because the State had argued that no monies were missing from its coffers. We even had citations from the former Attorney General of the State, who advanced this argument in court, as evidence of why Delta should not lay claims to the money. This is a political argument that sees the governor and his minions as constituting the state of Delta. It is also symptomatic of the aberration that we have continued to sustain by not separating the offices of the Attorney General from those of the Commissioner/Minister of Justice in our country. If attorneys-general were to be civil servants, or independent state counsels, they will be hard put to engage in similar farcical legal monkeyshines.
What played out in court, in the case of Delta, was a group of executive bandits teaming up to cover the tracks for a godfather, using the powers of the attorney general who is himself a politician and a member of the cabal. But as it turned out, the EFCC, the Courts, and the UK government were not fooled. they were able to peel through the legal smokescreen to ascertain that the money and assets belonged ab initio to the Delta State people.
Yesterday, when the issue concerned my State, I was very upset not only because the money belonged to my state, but also because this was a clear evidence that someone at the Enugu Lion Building was actively making sure that my local government, Awgu, one of the oldest Divisions in the country, would remain perpetually poor and underdeveloped. Like Isi Uzo, the other local government without a known political heavyweight, we were being made to bear the brunt of executive recklessness. Today, because the issue concerns Delta, looking at what they are bearing past my home like a log of wood is actually helpful as this allows me to approach the matter with a little detachment.
So, let me begin by pointing out that there are three parties whose interest we have to examine under this issue. The first party is the Federal government which is in a position to acquire, by force of law, all recovered looted funds as well as proceeds of looted funds. The second party are the agencies that investigate and prosecute individuals for recovery of looted assets, notably the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices Commission (ICPC). Both agencies are empowered to investigate and charge to court private and public persons found to have unlawfully taken what belongs to other individuals, corporations and governments. The third party are the victims. These could be individuals, local, state and federal governments.
How is it right in the eyes of the law for courts to rule that recovered looted funds that were established to be property of an innocent victim (like Awgu Local Government), should be forfeited to the federal government? In the case of Enugu, a prima facie case was established that part of the money laundered and transferred into the governor’s account overseas were Excess Crude Account (ECA) allocations meant for the five local governments of the State.
Secondly, it is clear that in all such cases where assets belonging to states and local councils are proved to have been stolen, it is almost certain that majority of the funds came from federal allocations, funds shared between the three tiers of government. On what grounds would a law be made that allows the federal government to recover such funds belonging to a federating unit and not only seize them but proceed to spend them on other areas of the country that received allocations at the same time?
Agreeing without conceding, as a friend used to say, that this is the law, where is the sense or the justice in it? Why punish the children of the State for a crime that their temporary “father” – and hired servant – committed? The best that can be done is that the agencies that recovered the money could ask for costs of recovery before giving what belongs to Caesar to Caesar.
I searched in vain to see a situation where a state government, through its attorney general, approached the courts to test the justice of this law, by demanding a return of the recovered looted assets, and I found none. The only legal contest I saw was the Delta State government struggling to hide the evidence of crime. Which is why it is fitting that the same Delta State and its stakeholders are the ones threatening to contest this seizure in our courts.
The Federal Government shouldn’t be allowed to use the law to seize property that belong to States and local governments.
Who Owns Recovered Loot
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