April 10, 2010
Dear Mr Mohammed Adoke SAN: Please accept my congratulations on your recent appointment as the Attorney-General of the Federation and Minister of Justice. A former Chief Justice of the Federation, Justice Fatayi-Williams, advised in the case of The State v. Ilori that: "It is of paramount importance that when an Attorney-General is being appoin¬ted, the appointor should, at all times, bear in mind the integrity, ability, experience, and maturity required of the person holding this high and important office.” Therefore, your appointment is a testament to the Acting President’s belief that you have these great qualities.
However, in view of the desecration of this noble office by your predecessor, Mr Michael Aondoakaa, the need to take immediate and credible steps to restore public confidence in the office and in the country’s justice system cannot be overemphasised. It is against this background that I bring to your attention the matter of James Ibori, which provides you with a perfect opportunity to put into action your recent declaration that “there would be no cover up and there would be no sacred cow” in the all important fight against corruption.
The Case of the UK Government against Ibori
You will be aware of the ongoing trials of Mr Ibori’s mistress (Udoamaka Okoronkwo), his sister (Christine Ibori-Ibie) and his former personal assistant (Adebimpe Pogoson) for conspiracy to commit money laundering and money laundering at the Southwark Crown, London and the forthcoming prosecutions of his wife (Theresa Ibori) and his solicitor (Bhadresh Gohil) for similar offences in the same court. At a preparatory hearing in October 2008, Judge Rivlin summarised the Crown’s case against James Ibori and his associates as follows:
“All the money laundering offences arise in this way. These defendants are all closely connected with a man named James Onanefe Ibori. Mr James has a chequered history. At one time, in the early 1990’s, when living in England and working as a cashier, he and his wife were in debt and also in trouble for minor offences of dishonesty; but by 1999 he had risen in the world, and in that year he took office as the Governor of Delta State of Nigeria. In that capacity he was required to make asset declarations, which are said to have been false. He was also paid a salary and expenses, which were expected to his only source of income.
“Notwithstanding these limitations of his office, which were anti-corruption measures, according to the Crown it was not long before Mr James came into personal possession of very substantial wealth, running into millions of pounds sterling. The main thrust of the case against these defendants is that each of them then assisted him in a major money laundering operation, whereby these monies or at least part of them were paid into various bank accounts in the UK and/or used towards the purchase in this country of a number of properties, and/or to fund the luxurious life-styles of one or more of the defendants.
“As it happens, very substantial sums of money have already been frozen pursuant to Restraint Proceedings initiated by the Crown in 2007. The prosecution say that virtually all of this money had been dishonestly plundered from the Delta State or in other ways fraudulently obtained by Mr James Ibori.”
The reference to “minor offences of dishonesty” in Judge Rivlin’s statement relates to Mr Ibori’s previous double convictions in the UK for theft on 25 January 1991 and for handling a stolen credit card on 7 February 1992. It is therefore a matter of great concern to Nigerians at home and abroad (particularly the people of Delta State) that their government continues to assist a man known to the whole world as a double-convict to evade justice in the UK. A particular cause for worry is the implication of this blatant breach of international law on any efforts to recover the billions of pounds hidden in the UK by corrupt Nigerians officials like James Ibori.
Extradition of James Ibori to the UK
As the Attorney-General and Minister of Justice, it is your responsibility to ensure that the government complies with its obligation under section 172 of the 1999 Constitution to “abolish all corrupt practices and abuse of power" and with similar obligations under international treaties. The Agreement Between the Government of the United Kingdom and the Government of Nigeria concerning the Investigation and Prosecution of Crime and the Confiscation of Proceeds of Crime, also known as the Mutual Legal Assistance Treaty (‘MLAT’), which was signed in London on 18 September 1989, requires both countries to afford each other, upon request, mutual assistance in criminal matters, including identifying and locating suspects, obtaining information and evidence, and tracing and confiscating the proceeds of crime.
You will be aware that Mr Aondoakaa refused a request by the UK government under the MLAT to extradite Mr Ibori to the UK to take part in the ongoing prosecutions of his associates. Under the MLAT, the “Central Authority” for each country is responsible on the one hand for making requests and on the other for executing the requests. The Central Authority (in this instance the ‘Requesting Party’) in the UK is the Home Secretary. In, Nigeria, the Central Authority (in this instance the Requested Party) was Mr Aondoakaa. Mr Aondoakaa was quoted in Vanguard newspaper of November 21, 2007 as defending his decision not to extradite Ibori on the grounds that "a trial in any other jurisdiction other than Nigeria would inevitably tarnish the image of Nigeria as a nation and send the message that the integrity of its criminal justice system cannot be relied upon.”
Moreover, the MLAT does not prevent or restrict any assistance or procedure available under other international conventions. Therefore, the United Nations Convention Against Corruption (UNCAC), which is the first legally binding international anti-corruption instrument, is also relevant to this matter. The UNCAC, which came into force on 14 December 2005, was ratified by Nigeria and the UK on 14 Dec 2004 and 14 February 2006 respectively. Thus both counties are obliged to assist each other in every aspect of the fight against corruption, including the provision of mutual legal assistance in gathering and transferring evidence for use in court, extraditing offenders, tracing, freezing, confiscating and repatriating the proceeds of corruption. Specifically, article 46 provides that "States Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by this Convention." In criminal matters, such cooperation is mandatory.
In light of these treaties, Mr Aondoakaa’s refusal to extradite Ibori on the purported grounds that his trial in the UK would damage Nigeria’s image or undermine the integrity of Nigeria’s criminal justice system is at best ignorant and at worst dishonest. It is unclear whether Mr Aondoakaa considered the damage that breaches of bilateral and multilateral treaties would have on Nigeria’s image. In the event, the dismissal of the 170-count indictment of James Ibori purportedly for lack of evidence by Justice Marcel Awokulehin of the Asaba High Court has damaged the integrity of Nigeria’s criminal justice system. The report of the infamous judgement by the Associated Press on Thursday December 17, 2009, which was published in many international news media, questioned the integrity of both our criminal justice system and our government in unmistakeable terms. According to the report:
“Ibori represented an opportunity for Nigeria to hold to account government officials long criticized for lining their own pockets instead of helping the poor, especially in the restive Niger Delta. As an associate of Yar'Adua, he also stood as a test of the President's vow to crack down on corruption ... That widespread corruption led U.S. Secretary of State Hillary Clinton to lump Nigeria with Cuba ... as governments ‘able but unwilling to make the changes their citizens deserve’”.
Under the circumstances, extraditing Mr Ibori to the UK as a matter of urgency to participate in the criminal proceedings that are primarily against him will send the right signals both to Nigerians and the international community about the Acting President’s stated zero tolerance policy on corruption.
Release of Evidence to the UK Authorities
In August 2007, the UK authorities also sent a request under the MLAT to Mr Aondoakaa for Nigeria’s assistance in the provision of evidence in connection with Ibori's case. However, on 12 November 2007, Mr Aondoakaa responded saying that he could not accede to the request because it had not emanated from the Home Secretary and refusing to authorise the use of other evidence obtained from the Economic and Financial Crimes Commission (EFCC) by officers of the Metropolitan Police Proceeds of Corruption Unit who had travelled to Nigeria for that purpose. Mr Aondoakaa’s clear intention was to frustrate the prosecution of Mr Ibori’s associates in the UK. Thus at the preparatory hearing before Judge Rivlin at the Southwark Crown Court on 22 October 2008, the defence lawyers asked the court to refuse the Crown permission to introduce this evidence, which the judge described as “a considerable body of evidence” in the trials of the defendants on account of Mr Aondoakaa’s objections.
The evidence in question was obtained pursuant to two letters of request. The first, dated 23 August 2006, was issued when Mr Bayo Ojo was Attorney-General of the Federation. The second, designed to supplement the evidence received as a result of the first request and dated August 2007, was issued under Mr Aondoakaa’s watch. Therefore, under the MLAT, the “Central Authority” for Nigeria (in this instance the Requested Party) was Chief Bayo Ojo (in relation the first letter of request) and Mr Aondoakaa (in relation to the second letter).
Judge Rivlin confirmed that “there has been no communication from the former Attorney-General Chief Bayo Ojo in relation to the first letter of request in 2006”. Consequently, he held that there was “nothing to suggest that the material so gained should not be used in a criminal trial in this country.”
However, in relation to the evidence obtained following the second letter of request, the judge ruled that Mr Aondoakaa “was mistaken” in his contention that the letter must be written by the Home Secretary but agreed that he has “never agreed that it should be handed over to the Requesting Party for its use in criminal proceedings.” Accordingly, the judge ruled, with “considerable reluctance”, that this evidence would be inadmissible in UK courts without Mr Aondoakaa’s approval. This decision was upheld by the Criminal Division of the Court of Appeal.
Consequently, eleven boxes containing copies of this excluded evidence was delivered to Mr Aondoakaa by the UK authorities in late 2008 for his approval. Under article 6 of the MLAT, Mr Aondoakaa could only refuse a request on very limited grounds, including where it relates purely to an offence of a political character, or where the alleged crime would not constitute an offence under Nigerian law or relates to conduct in relation to which the accused person has been acquitted or convicted by a court in Nigeria, or if compliance with the request would be contrary to Nigeria’s Constitution or would prejudice national security, international relations, public policy, or other essential national interests, or where compliance could prejudice an investigation or proceedings in Nigeria or impose an excessive burden on the resources of the Nigerian government.
The fact that Mr Aondokaa’s predecessor, Chief Bayo Ojo, approved the request made following the first and main letter of request indicates that none of the evidence obtained from the EFCC following the second and supplementary request breached the requirements of article 6 of the MLAT. However, Mr Aondoakaa refused to approve the use of the evidence contained in the eleven boxes sent to him by the UK authorities.
As a result, although the evidence obtained following the first letter of request, which Chief Bayo Ojo did not object to, was allowed to the Crown for use in the ongoing trials of Udoamaka Okoronkwo, Christine Ibori-Ibie and Adebimpe Pogoson, the eleven boxes of evidence obtained following the second letter of request are not being used in these proceedings because Mr Aondoakaa refused to authorise their use. Consequently, should James Ibori be extradited, this particular body of evidence will also not be available to the Crown in his prosecution unless you authorise its use.
More significantly, none of the evidence obtained from Nigeria will be available to the Crown in the forthcoming trials of Theresa Ibori and Bhadresh Gohil unless you intervene as a matter of urgency. This is because section 9 of the UK Crime (International Co-operation) Act 2003 provides that evidence obtained pursuant to a request for assistance “may not without the consent of the appropriate overseas authority be used for any purpose other than that specified in the request”. At the time, the appropriate overseas authority was Mr Aondoakaa. Since both Mrs Ibori and Mr Gohil were arrested on 1 November 2007, after both letters of request were issued, criminal proceedings against them were neither mentioned nor contemplated in both letters as required by the 2003 legislation. Therefore, the Judge ruled that in the absence of any specific authorisation by Mr Aondoakaa of the use of this material in their cases, the Nigerian evidence cannot be used by the Crown. He therefore advised that the evidence should be sent to Mr Aondoakaa for his approval. This was done but Mr Aondoakaa also refused to approve the use of the evidence.
The decision to approve this considerable body of evidence now falls to you as the Central Authority under the MLAT. I am confident you will fulfil the Nigerian people’s expectations and follow the good example of Chief Bayo Ojo by approving the use of this evidence. Since the MLAT does not prevent or restrict any assistance available under other international conventions or under Nigerian laws, in addition to the MLAT, you can equally approve the use of the evidence under the UNCAC or under the Economic and Financial Crimes Commission (Establishment) Act 2004 (the “EFCC Act”).
Section 6((j) of the EFCC Act charges the EFCC with responsibility for “collaborating with government bodies both within and outside Nigeria carrying on functions wholly or in part analogous with those of the Commission” while section 6(k) of the Act specifically provides that the Commission “shall be responsible for dealing with matters connected with the extradition, deportation and mutual legal or other assistance between Nigeria and any other country involving economic and financial crimes.” Clearly, even solely under Nigerian law, as opposed to the MLAT which the UK courts were primarily concerned with, Mr Aondoakaa should not have interfered with evidence provided to the UK authorities by the EFCC in the lawful exercise of their powers under the EFCC Act. It is true that section 43 of the EFCC Act authorised the Attorney-General to “make rules or regulations with respect to the exercise of any of the duties, functions or powers of the Commission under this Act” but Mr Aondoakaa did not enact any such subsidiary legislation purporting to require the EFCC to submit any evidence relating to a mutual legal assistance request to him for clearance at the relevant time.
Cooperation with the UK is in Nigeria’s Interest
It is important to note that the UNCAC makes the return of illicit assets to their countries of origin a fundamental principle and spells out how cooperation and assistance will be rendered in this regard to redress the worst effects of corruption while sending a message to corrupt public officials all over the world that there will be no place to hide their loot. Specifically, in the case of embezzlement of public funds, the illegally acquired property would be confiscated by the host country and returned to the country of origin upon request. With an estimated £220 billion stolen by our corrupt officials between 1960 and 1999, much of which remains overseas, you will agree that these provisions are of utmost importance to Nigeria.
As you will be aware, the UK plays a major role in global money laundering, particularly in relation assets looted from Nigeria. In the case of the late General Sani Abacha, the UK’s Financial Services Authority (FSA) revealed in 2001 that more than $1.3 billion of his estimated $5 billion loot was laundered through 42 UK bank accounts held by members of his family and their close associates between 1996 and 2000. As no member of the Abacha family or their associates was convicted of any offence either in Nigeria or in the UK in relation to the matter, most of the money remain overseas after they reneged on an agreement to return US$1 billion to the Nigerian government under a plea bargain of April 2002.
However, following its ratification of the UNCAC in February 2006, the UK government has enacted a raft of domestic legislation and effected significant institutional reforms in order to comply with its obligations under the Convention. A significant legislation in relation to assets recovery is the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005, which allows it to freeze and confiscate assets located in the UK which are subject to criminal investigation or prosecution or civil recovery proceedings overseas. Unlike previous law, the new legislation does not require prior conviction in the foreign country. These legislative and institutional advances, which resulted in the present proceedings against Mr Ibori, illustrate the importance of mutual cooperation with the UK government in the efforts to combat transnational corruption and to facilitate the much needed recovery of illicit assets hidden in that country by corrupt Nigerian public officials like Ibori.
Conclusion
Mr Ibori’s extradition and prosecution in the UK will not prejudice any subsequent criminal proceedings against him in Nigeria. In fact, his immediate removal from Nigeria will ensure that ongoing investigations against him are not interfered with. Moreover, in view of the spate of bizarre rulings he has enjoyed from all levels of the Nigerian Judiciary over the years, his temporary absence from the country would provide a good opportunity to rehabilitate that arm of government to ensure that justice is done and seen to be done in any future prosecutions against him.
Yours sincerely
Osita Mba
[email protected]
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