Within the past three weeks the Asset Forfeiture Unit in the office of the National Prosecuting Authority (NPA) in South Africa seized two tranches of fund totaling $15million being payment for the alleged purchase of arms by the Federal Government. Initially, the sum of $9.3 million smuggled into South Africa by an Israeli and two Nigerians was seized last month. The suspicion surrounding the transaction was fueled by the disclosure that the South African company involved in the deal is not a licensed arms dealer and that the jet used to ferry the money belongs to Pastor Ayo Oritsejafor, the President of the Christian Association of Nigeria, who is very close to the Presidency. The CAN has since said the plane which was bought for evangelism was converted and leased to another company to raise some money!
Since the Federal Government could not justify the brazen violation of the money laundering law of South Africa by the three suspects it decided to engaged in the diplomatic resolution of the embarrassing incident. However, while the " diplomatic
row" was yet to be resolved another sum of $5.7 million wired by a Nigerian company to South Africa from Abuja for the purchase more arms was also seized last week. Convinced that the latest seizure could not be justified the National Security Adviser, Col. Sambo Dasuki (rtd) lambasted the South African Government and the fifth columnists in Nigeria who are bent on frustrating the Federal Government in prosecuting the war on terror. According to Mr. Karounwi Adekunle, the spokesperson for the office of the NSA, "a business transaction actually took place between a legitimate company in Nigeria and another legitimate company in South Africa through the bank. In the course of events the South African company could not perform and decided to refund the
money. What is illegitimate in this transaction done through the bank?"
It is interesting to note that the NSA has not said that it was the Federal Government that transferred the controversial fund to South Africa. Neither has the NPA indicted the Federal Government for the alleged criminality associated with the transaction. In fact, the NPA has not questioned the legal status of both companies. What is being investigated by the NPA is the legitimacy of the receipt of $5.7 million by Cerberus Risk Solutions of South Africa whose license to deal in arms had expired before it entered into the contract. In actuality, it was the Standard Bank through which the fund was transferred which reported the "suspicious transaction". And the NPA promptly applied for and obtained an order of the High Court
for the seizure of the fund. Both companies-Cerberus Risk Solutions of South Africa and it's Nigerian counterpart, Societe D'Equipments Internationale are yet to challenge the interim order for the confiscation of the fund.
Therefore, contrary to the mismanagement of information traceable to the office of the NSA the Federal Government did not place any direct order for the importation of arms from South Africa. The fact that the NSA signed the End User certificate for the arms importation is not a license for the companies involved in the deal to breach the laws of South Africa. In other words, the Israeli and two Nigerians who were arrested last month for smuggling the sum of $9.3 million and the Nigerian company involved in the transfer of the $5.7 million to South Africa are not public officers. As independent contractors they were awarded contracts for the supply of arms by the Federal Government and paid accordingly. It is indubitably clear that the suspects were negligent for failing to conduct due diligence.
Hence, they were dealing with companies that are not authorized to trade in arms in South Africa. By the way when was the responsibility of purchasing weapons for the armed forces of Nigeria transferred from the Ministry of Defence to the office of the NSA?
However, since the Federal Government cannot be held vicariously liable for the alleged criminal activities of the suspects the office of the NSA ought not to have embarrassed the nation by giving the erroneous impression that Nigeria had breached the law of another country. As a sovereign entity the Federal Government can place orders for the purchase of arms either from another government or from independent arms dealers. But when the office of the NSA decided to award contracts to private corporate bodies for the supply of arms it could not have clothed them with immunity or license to breach local or foreign laws. Instead of exposing Nigeria to further ridicule the Federal Government should stop accepting responsibility for the alleged criminal actions of the suspects indicted in the alleged laundering of the sum of $15 million.
Having regard to the facts and circumstances of this shameful episode there is substantial evidence to prove that the suspects breached the terms of the deal for the supply of the arms. To that extent the Federal Government is perfectly entitled to sue them with a view to recovering the entire contract sum of $15 million. Notwithstanding their inexplicable negligence the suspects should be advised to contest the order of the High Court which authorised the seizure of the fund. To show that there was no mens rea to breach the law of that country the NSA may wish to testify for the suspects.
By threatening to deal with the South African government over the breach of the law by the private businessmen and corporate bodies involved in the suspicious transactions the office of the NSA has called to question the moral integrity of the Federal Government. By asking South Africa to reciprocate the gesture of allowing MTN and DSTV to operate in Nigeria is the Federal Government saying that both South African companies are allowed to breach the law of the land? Regrettably, the National Assembly treated this matter of urgent national importance so cavalierly and in the process left many questions unanswered. Otherwise how could both chambers have failed to examine the statement of the NPA that the official explanations for the suspicious transactions are riddled with contradictions. Instead of grandstanding over the criminal enterprise the Federal Government should apologize to Nigerians and call the NSA to order for dragging the name of Nigeria through the mud.
-Femi Falana SAN.