Petition to the ICPC: $12B Gulf War Oil Windfall – The Law Requires Babangida to Justify or Forfeit His Unexplained Wealth

Sir: Petition to the ICPC: $12B Gulf War Oil Windfall – The Law Requires Babangida to Justify or Forfeit His Unexplained Wealth
1. You will no doubt be aware that the former military ruler, General Ibrahim Babangida, has announced his intention to contest next year’s presidential election and has challenged his critics to prove their allegations that he enriched himself corruptly while in office, especially in relation to the $12.4 billion oil windfall earned by the country during the first Gulf War in 1991.

2. Fortunately, as a former public servant that boasts unexplained wealth, Babangida is plainly required by law to justify his wealth or forfeit it to the state. Therefore, the purpose of this petition is to instigate this procedure contained in section 44 of The Corrupt Practices and other Related Offences Act 2000 (the ICPC Act), which is designed to combat corruption and promote good governance.
3. You will recall that on 15th January 1994, the government of the late General Sani Abacha set up a panel of eminent Nigerians chaired by the late renowned economist, Dr. Pius Okigbo, (the Panel on the Reorganisation and Reform of Central Bank of Nigeria) to probe how the $12.4 billion oil windfall was spent by Babangida’s government. The panel’s report was submitted to the government on 27th September, 1994.

4. It is on record, based on a summary of this report published by the government, that Babangida’s regime conspired with top officials of the Central Bank of Nigeria (CBN) to squander this national fortune on unproductive or dubious projects, with $12.2 billion out of the $12.4 billion spent through “Dedicated Accounts” that were not available to auditors.

5. Although successive governments have refused to publish the full report, copies are widely available in the public domain and as the Chairman of the ICPC you should be able to obtain the full report the government.

6. However, the ICPC Act empowers you to request Babangida to either explain the legitimate sources of his enormous wealth or forfeit same to the state. The uncontroversial information disclosed by the government in relation to the Okigbo Panel’s report is relevant but not strictly necessary evidence for this purpose.

7. Your Commission’s website contains this very instructive information: “The ICPC Act 2000 brought a fresh and decisive perspective to the fight against corruption in the form of a holistic approach encompassing enforcement, prevention and educational measures. It captures in a single document, a host of corrupt (sic) offences in their old and sophisticated guises. It sets up the Independent Corrupt Practices and Other Related Offences Commission with wide-ranging powers.”

8. One of these wide-ranging powers is your power under section 44 of the ICPC Act (which criminalises unexplained or illicit wealth) to subject any past or present government official to criminal penalties and forfeiture if in the course of an investigation you have reasonable grounds to believe that they committed a corruption offence. 
9. It is clear from available information in relation the Okigbo panel’s report that there are reasonable grounds to believe that serious corruption offences were committed under Babangida’s watch with regards to the $12.4b Gulf War oil windfall. It is equally incontrovertible that Babangida is a man of great but unexplained wealth. His palatial Hilltop Mansion in Minna, the cost of which arguably exceeds the entire legitimate emoluments of his military and public service careers, stands as an obscene and poignant testament to this fact.
10. Therefore, as Babangida steps up his campaign to take charge of their affairs for a second time, the Nigerian public you serve as ICPC Chairman expect you, by virtue of section 44(1)(a) of the ICPC Act, to require him to provide a statement in writing on oath or affirmation in order to:

(i)     Identify every property, whether movable or immovable, whether within or outside Nigeria, belonging to him or in which he has any interest and specifying the date on which each of the properties so identified was acquired and the manner in which it was acquired;
 
(ii)    Identify every property transferred out of Nigeria by him during such period as may be specified in the notice;
 
(iii)   Set out the estimated value and location of each of the properties identified and if any of such properties cannot be located, the reason for this;
 
(iv)   State in respect of each of the properties identified whether the property is held by Babangida or by any other person on his behalf or whether it has diminished in value since its acquisition by him and whether it has been commingled with other property which cannot be separated or divided without difficulty;
 
(v)    Set out all other information relating to his properties, business, travel or other activities as may be specified in the notice; and
 
(vi)   Set out all his sources of income, including earnings and gifts or other assets for such period.
 
11. Section 44(1)(b) of the Act also empowers you to issue a similar notice to any relative or associate of Babangida or any other person whom you have reasonable grounds to believe is able to assist in this investigation.

12. Furthermore, section 44(1)(c) of the Act authorises you to require any officer of any bank or financial institution to provide you with copies of all accounts, documents and records relating to Babangida or any of his relatives and associates once the above notice has been issued.

13. Significantly, section 44(2) of the Act provides that should you have reasonable grounds to believe that Babangida owns, possesses or controls any interest in any property which is excessive, having regard to his past emoluments and all other relevant circumstances, to require him by a written direction to provide a statement on oath or affirmation explaining how he was able to own, possess or control such excess. Furthermore, if he fails to explain satisfactorily such excess, he shall be presumed to have used his office to corruptly enrich or gratify himself and charged with corruption accordingly.

14. For completeness, it should be noted that section 44 (2) of the ICPC Act does not contravene the presumption of innocence guaranteed under section 36(5) of the 1999 Constitution. This is because section 36 makes clear that “nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”

15. As you will no doubt be aware, the criminalization of illicit enrichment or inexplicable wealth under section 44 of the ICPC Act is a valuable tool for prosecuting corrupt leaders. It is also consistent with Nigeria’s obligations under Article 20 of the United Nations Convention Against Corruption to adopt legislative and other measures necessary to establish illicit enrichment - a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income - as a criminal offence.

16.  It is therefore a source of great frustration to Nigerians that, like your predecessor, you have so far failed to invoke this very crucial provision despite the relentless distortion of our social, economic, legal and political systems by past and present corrupt leaders that continue to oppress us with their illicit wealth.

17.  Under the circumstances, you will agree that the immediate enforcement of this legislation, starting with Babangida, will not only resolve the issue of the $12.4 billion oil windfall and determine his fitness to be entrusted with the affairs of the nation at this critical time but will also start the restoration of the ICPC as the apex anti-corruption body in Nigeria as intended by law. 

18. I understand that this petition will be brought to your attention within 48 hours of the above date. I shall, therefore, look forward to hearing from you in due course.

Yours faithfully

Osita Mba
 
Submitted on 19 April 2010 to Hon. Justice Emmanuel Ayoola
Chairman, Independent Corrupt Practices Commission
Abuja