Human rights activist and Senior Advocate of Nigeria, SAN, Femi Falana, has asked the Federal Government to reject the conditionality attached to the repatriation of late military dictator, General Sani Abacha’s loot in Switzerland.
In a September 9 letter addressed to President Muhammadu Buhari, the senior lawyer described the Swiss government’s conditions for returning $321m of Abacha’s loot to Nigeria as an insult.
He recalled the disclosure by Swiss Ambassador to Nigeria, Mr. Eric Mayoraz that his country’s government has requested the World Bank to supervise the spending of the returned loot saying it was a violation of international laws.
According to Falana: “We believe that the conditionality imposed on Nigeria, which allows the World Bank to supervise the spending of returned assets by the Nigerian government breaches international law principles and standards”.
He also accused the World Bank of not demonstrating sufficient level of transparency and accountability in its supervision of spending of previously returned Abacha loot.
He added that, should the Swiss government refuse to return the money without any conditionality, the federal government should initiate legal proceedings for the recovery of the funds.
“In the event that the government of Switzerland refuses to return the said sum of $321 million without any conditionality, the Federal Government should not hesitate to initiate legal proceedings for the recovery of the asset”, he said.
“In the proposed suit. Nigeria should claim punitive and exemplary damages and interests from Switzerland for keeping the loot for over 20 years”, Mr. Falana added.
It would be recalled that in July, 2016 the Swiss government signed a Memorandum of Understanding with the Nigerian government towards the return of the money looted by the late Abacha.
A first tranche of the Abacha loot – $722 million – had been repatriated to Nigeria in 2005.
Full text of Mr. Falana’s letter to President Buhari below:
President Mohammadu Buhari,
The Presidential Villa,
Re: Request to reject the conditionality attached to the return of $321m Abacha loot by Switzerland
We are a firm of legal practitioners in Nigeria dedicated to the defence and promotion of human rights and democracy as well as public accountability and transparency.
We are writing on behalf of our law firm to request the Federal Government to reject, without any further delay, the insulting conditionality including the supervision by the World Bank, attached to repatriation of the sum of $321m Abacha loot in Switzerland to Nigeria.
We note that recently the Swiss Ambassador to Nigeria, Mr. Eric Mayoraz disclosed that the Swiss government would soon return $321m of Abacha loot to Nigeria. As part of the process of repatriation, the Ambassador claimed that the government of Switzerland has, unilaterally requested the World Bank to supervise the spending of the returned loot.
We note that grand corruption, money laundering and return of stolen assets have long become major issues of concern to the international community. We further note that Switzerland has acceded to all the relevant international treaties such as the United Nations Convention against Corruption for the return of assets.
We believe that the conditionality imposed on Nigeria, which allows the World Bank to supervise the spending of returned assets by the Nigerian government breaches international law principles and standards. In particular, Article 57 of the UN Convention against Corruption requires states parties to return assets “on the basis of a final judgment in the requesting State Party.” But in circumstances where there is no “final judgment” Article 57 allows for assets to be returned on the basis of “agreements or mutually acceptable arrangements, on a case-by-case basis, for the final disposal of confiscated property.”
This provision suggests that Switzerland has no legal authority to impose conditions on Nigeria regarding the spending of recovered assets. While the UN Convention against Corruption contains provisions for “special considerations” when states parties are concluding agreements, this does not give the government of Switzerland the right to unilaterally impose conditions on Nigeria.
In addition to breaching the clear provisions of Article 57, the imposition of any conditions on the Nigerian government is a flagrant violation of the principles of sovereignty and non-intervention founded in Article 2 of the United Nations Charter. Imposing conditions on Nigeria regarding the spending of returned assets is disproportionate and amounts to an unlawful intervention because Switzerland has no legal or moral right to the assets. Indeed, Switzerland is completely complicit for the stashing and depositing of stolen assets from Nigeria in its banks and other financial institutions.
We are seriously concerned that the World Bank itself has not demonstrated sufficient level of transparency and accountability in its supervision of spending of previously returned Abacha loot. For example, the World Bank has so far refused to satisfactorily disclose information on the spending of recovered Abacha loot requested by Nigerian anticorruption NGO Socio-Economic Rights and Accountability Project, (SERAP). The Bank has been unable or unwilling to consistently apply its own Access to Information Policy to disclose key information to civil society groups and other stakeholders. In the SERAP case, the World Bank failed and/or neglected to provide several portions of the information requested on the spending of recovered Abacha loot managed by the Bank. Although the Bank’s Access to Information Policy recognizes the right to an appeals process when a request for information in the World Bank’s possession is improperly or unreasonably denied, the appeal lodged by SERAP has been unreasonably and unduly delayed
Having regard to the empty promises made so far by Switzerland and the United States to return forfeited assets worth over $800 million it is clear that the Western countries will continue to frustrate the repatriation of the looted wealth of the nation being warehoused by them, albeit illegally. We are therefore compelled to request the Federal Government to reject any conditionality including the supervision by the World Bank attached to the return of $231m of Abacha loot to Nigeria.
In the event that the government of Switzerland refuses to return the said sum of $321 million without any conditionality the Federal Government should not hesitate to initiate legal proceedings for the recovery of the asset. In the proposed suit Nigeria should claim punitive and exemplary damages and interests from Switzerland for keeping the loot for over 20 years.
Finally, the Federal Government is urged to collaborate with relevant civil society organizations to mount a campaign locally and internationally to ensure full compliance by Switzerland, the United States and other Western countries to international law principles of accountability, proportionality, sovereignty, equality, fairness and non-interference.
Femi Falana, SAN, FCI Arb.