GOVERNMENT OF THE THIEVES, BY THE THIEVES, AND FOR THE THIEVES
History was made at the High Court in London on 4 May 2007 when Mr Justice Peter Smith ordered the former Zambian President, Frederick Chiluba, and his associates to pay back ┬ú23 million they stole from the Zambian people during Chiluba's 10-year regime. The civil case was brought by Zambia's Attorney General in London because the bulk of Chiluba's loot was, in the notorious fashion of African kleptocrats, held in bank accounts in the United Kingdom.
The then British International Development Secretary, Mr Hillary Benn, acknowledged the significance of the judgement. According to him, "this is an historic victory for the people of Zambia and shows their commitment to bringing those who steal from the state to account - however powerful they are. The money recovered can now be returned to the government of Zambia to be invested in the people's future - such as education or clean drinking water for some of the 7 million Zambians living in poverty."
Come the 13th to 14th November 2008, history will be made in the corruption case of another African kleptocrat in London. This time the Attorney-General of Nigeria, a country that saw over ┬ú220 billion stolen by corrupt officials between the time of Independence from Britain in 1960 and the return to civilian rule in 1999, will deploy the machinery of the Nigerian government to the defence of Mr James Ibori, a man with previous convictions in London for stealing and handling stolen goods, who the British authorities now accuse of laundering the millions of pounds he is suspected to have stolen from his people within their jurisdiction.
Mr Ibori was convicted of one count of theft at Isleworth Crown Court, West London on 25 January 1991. The conviction related to the theft perpetrated by Mr Ibori and his eventual wife, Miss Theresa Nakanda, at the Home Improvement Store (Wickes) in Ruislip, West London, where Mr Ibori worked as a check out cashier. Mr Ibori would allow Miss Nakanda to pass through his check out with a trolley-load of goods without paying for them. They were arrested on 30 October 1990. Both were convicted under section 1 of the Theft Act 1968, fined ┬ú300 and ordered to pay ┬ú450 costs each.
Mr Ibori was arrested again on 12 September 1991 at Euston Rail Station, London, this time for possessing a stolen American Express credit card. On 7 February 1992, he was convicted of handling a stolen American Express Gold Card contrary to section 22(1) of the Theft Act 1968 at Clerkenwell Magistrates Court, London. He was fined ┬ú100 and ordered to pay ┬ú50 costs.
On 28 September 1995 one Mr James Ibori pleaded guilty to, and was convicted of, criminal breach of trust and negligent conduct at the Bwari Magistrates Court, Abuja in relation to building materials stolen from the construction site of the Lower Usman Dam project in Abuja.
Mr James Ibori would go on to play a major role in administration of the late General Sani Abacha, who together with his cronies stole more than $5 billion from the Nigerian treasury during a five-year dictatorship. Mr Ibori's involvement in that murderous and kleptomaniac regime placed him in a good position to capture the office of governor of the oil-rich Delta State during the 1999 elections.
This was in spite of the provision of section 182(1)(e) of the 1999 Constitution of Nigeria that no person shall be qualified for election to the office state governor if, within a period of less than 10 years before the date of the election, he has been convicted and sentenced for an offence involving dishonesty.
Unfortunately, Mr Ibori's double convictions in London only came to light after he has completed the two maximum terms as governor in May 2007.
However, the 1995 conviction at the Bwari Magistrates Court was the basis of a legal challenge (under section 182(1)(e) of the 1999 Constitution) to his re-election in 2003. The protracted litigation, which was marred by allegations of bribery and corruption, was concluded on 12 April 2006 when the Election Petition Tribunal held in a split decision (3:2) that the James Onanefe Ibori that was convicted in 1995 is not the same person as Governor James Onanefe Ibori.
This controversial decision flies in the face of the overwhelming evidence before the Tribunal, including that of the Magistrate that convicted Mr Ibori in 1995, Alhaji Awal Yusuf. Alhaji Yusuf identified Governor Ibori as the man he convicted and sentenced in 1995 and testified that Mr Ibori told him during a meeting on 23 January 2003: "Judge the issue of conviction is trying to stop me from contesting, please assist me and I would pay you back in cash of 10 million naira in any denomination".
As a result of this judicial reprieve Mr Ibori, according to the records of the Economic and Financial Crimes Commission (EFCC), went on to steal more than 10 billion naira (┬ú45 million) from the people of Delta State during his second term.
On 28 September 2006 the chairman of the EFCC, Mr Nuhu Ribadu, informed the Senate that Mr Ibori was one of the 31 state governors the EFCC was investigating on suspicion of embezzlement. As a serving governor Mr Ibori enjoyed immunity to prosecution but Ribadu assured the nation that he would prosecuted at the end of his tenure in May 2007. Ribadu also disclosed that the EFCC was collaborating with the Metropolitan Police in relation to a money laundering investigation of Mr Ibori in the United Kingdom.
Mr Ibori is widely believed to have bankrolled the flawed election of Mr Yar'Adua as president in April 2007 and as a return on his ÔÇśinvestment' hand-picked key officials of the administration, including the Attorney-General and Minister for Justice, Mr Michael Aondoakaa.
As Attorney-General, Mr Aondoakaa would superintend the EFCC and all other prosecution agencies in Nigeria. Yet his only previous claim to fame was for instituting a misguided suit seeking a declaration that the EFCC is illegal whilst acting as defence counsel to corrupt politicians under EFCC investigation.
Moreover, Mr Aondoakaa would also exercise the enormous prosecutorial powers conferred on the Attorney-General by section 174(1) of the Constitution to institute, take over and continue, or discontinue any criminal proceedings against any person before any court in Nigeria, other than a court-martial.
Although section 174(3) requires him to "have regard to the public interest, the interest of justice and the need to prevent abuse of legal process" in exercising these powers the Supreme Court had held in the case of The State v Ilori  1SCNLR 94 that he is not obliged to consider these public interests as he is "a master unto himself, law unto himself and under no control whatsoever, judicial or otherwise."
Therefore the appointment of Mr Aondoakaa as Attorney-General in August 2007 was a curious case of (unreformed) poacher turned gamekeeper that signalled the criminal intent of the Yar'Adua administration to use the machinery of government to protect corrupt public officials that looted the public treasury.
"Criminal intent" is used advisedly because apart from the obligation of the government under section 172 of the 1999 Constitution to "abolish all corrupt practices and abuse of power", section 19 of The Corrupt Practices and Other Related Offences Act 2000 makes it an offence, punishable with imprisonment for five years without the option of fine, for any public officer to use his office or position to confer any corrupt or unfair advantage upon any associate or any other public officer.
It is arguable that Mr Aondoakaa cannot escape a conviction for this offence, should he be charged for it, on account of his services to Mr Ibori and other corrupt public officials.
In Mr Aondoakaa's very first week in office, the government directed the EFCC and other prosecuting agencies to seek his consent before undertaking any prosecution. The directive was withdrawn two days later following a public outcry but the incident confirmed the government's intention to undermine the limited progress made under the previous Obasanjo government in bringing the once untouchable corrupt politicians before the courts.
On 9 October 2007, the Financial Times carried details of a letter by the British Director of Public Prosecution, Sir Ken Macdonald, to Mr Aondoakaa accusing the Nigerian government of jeopardising the attempts by British authorities to recover funds suspected to have been stolen by Mr Ibori and other powerful Nigerian politicians.
The Metropolitan Police had obtained a freeze on Mr Ibori's overseas assets worth some $35million in August 2007 while they pursued investigations but the police suffered an embarrassing setback in October 2007 when a judge at the Southwark Crown Court lifted the freezeon the strength of a misleading letter written on Mr Ibori's behalf by Mr Aondoakaa (within this first two weeks in office) falsely suggesting that the assets were not the proceeds of crime.
In the letter, Mr Aondoakaa stated that Mr Ibori "was investigated in connection with his ... activities whilst in office", despite the fact that the investigations were ongoing. He also stated that Mr Ibori "has not been charged to any court of law in Nigeria in respect of any offence relating to money laundering" but failed to disclose the fact that the EFCC had indicated that prosecution was imminent.
The publication of Mr Aondoakaa's letter caused widespread public anger but the man was undeterred. A month later, he refused a request by the British authorities under the Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Federal Republic of Nigeria concerning the Investigation and Prosecution of Crime and the Confiscation of Proceeds of Crime, 1990 (the "Mutual Legal Assistance Treaty") for evidence in relation to Mr Ibori's investigation.
An official letter from the Crown Prosecution Service failed to result in the customary sharing of evidence as Mr Aondoakaa claimed that the request was not signed by the Home Secretary in person but by a government lawyer.
It is true that the Home Secretary is designated as the competent authority to make such requests under the Article 3(1) & (2) of the Mutual Legal Assistance Treaty, but according to settled principle of administrative law (the so-called Carltona principle after the case of Carltona Ltd v. Commissioners of Works  2 All ER 560), the Home Secretary is not expected to make such requests personally. A request made on her behalf by one of her officials is, in law and in practice, a request of the Home Secretary.
As Lord Greene MR explained in the Carltona case: "In the administration of government in this country the functions which are given to ministers ... are functions so multifarious that no minister could ever personally attend to them. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the minsters by responsible officials of the department. Public business could not be carried on if that were not the case."
This common law principle is not only good law in Nigeria but is the basis of the organisation of the Nigerian Civil Service. It also appears in several pieces of legislation including the 1999 Constitution, which provides in section 174 (2) that the powers conferred upon the Attorney-General "may be exercised by him in person or through officers of his department."
Moreover, Article 1(3) of the Mutual Legal Assistance Treaty provides that the treaty "shall not prevent or restrict any assistance or procedure available under other international conventions or ... under the laws of the Contracting Parties." Nigeria is a signatory to the United Nations Convention Against Corruption that contains ample provisions (particularly Article 46) that Mr Aondoakaa could have relied on to comply with the British request if he was genuinely committed to the rule of law and due process.
A few days after his letter to the Home Secretary Mr Aondoakaa refused another request by the British authorities, this time to extradite Mr Ibori for prosecution for money laundering in Britain where most of his assets are situated. Mr Aondoakaa was quoted in Vanguard newspaperof November 21, 2007 to have defended his decision on the grounds that "a trial in any other jurisdiction other than Nigeria would inevitablytarnish the image of Nigeria as a nation and send the message that the integrity of its criminal justice system cannot be relied upon."
Due to the doggedness of Nuhu Ribadu, Mr Ibori was eventually charged by the EFCC in December 2007 on a 102-count of stealing more than 10 billion naira (┬ú45 pounds) from the people of Delta state before the Kaduna High Court. The 103rd count against Mr Ibori was that he "on or about 25th April 2007 made cash payment of the sum of 15 Million US Dollars to the officials of the Economic and Financial Crimes Commission in order to influence their investigations."
Mr Ribadu would pay a heavy prize for prosecuting Mr Ibori against the wishes of the government. The government promptly relieved him of his duties as EFCC chairman and banished him Kuru for a one-year course at the National Institute for Policy and Strategic Studies (NIPSS).
Mr Ribadu's ouster provoked national and international outrage. In a letter to President Yar'Adua, the executive director of the United Nations Office on Drugs and Crime, Mr Anthonio Costa, noted that the EFCC had under Ribadu's leadership "gained a steady reputation as one of the world's foremost anti-corruption agencies" and expressed concern that "the removal of Chairman Ribadu ÔÇô even if temporary ÔÇô could be very detrimental to maintaining the momentum of ongoing anti-corruption investigations".
But sadly, the aim of Yar'Adua's government was to halt the momentum of ongoing anti-corruption investigations.
At the time of Ribadu's removal in January 2008, the government claimed that it was a temporary measure to enhance his professional development. However, on 15 May 2008, President Yar'Adua sent the name of a retired police officer with proven connections to corrupt politicians, Mrs Farida Waziri, to the Senate for confirmation as EFCC chair.
As recently as 8 November 2007 Mrs Waziri signed bail bond for former governor George Akume (Mr Aondoakaa's client) who was under EFCC investigation.
Consequently, analysts were not surprised when Mrs Waziri recently announced on 13 October 2008 that the files of the cases against Mr Ibori and 30 other former governors were either "missing or distorted" and that "there is no prima-facie case against them".
Any remaining doubt of President Yar'Adua's complicity in the use of state powers to protect Mr Ibori and his stolen wealth was dispelled on 22 September 2008 when Mr David Edevbie (an acolyte of Mr Ibori who served as Commissioner for Finance in his administration and who is reportedly wanted by the Metropolitan Police in connection with Ibori's money laundering case) was sworn in as Yar'Adua's Principal Secretary, a new term for the office of Chief of Staff in the Presidency.
Having effectively scuttled the case against Mr Ibori in Nigeria, the Nigerian government has now directed its machinery towards London, where the case against Mr Ibori has continued to gather momentum despite the refusal of the Nigerian government to extradite him.
On 12 April 2006, the Metropolitan Police arrested Mr Ibori's sister (Mrs Christine Ibori-Ibie) and two of his associates (Ms Adebimpe Pogoson and Ms Udoamaka Okoronkwo) in relation to their money laundering investigation. Ms Okoronkwo would later jump bail and return to Nigeria but the other two women were charged with multiple counts of fraud and money laundering on 8 January 2008 in the Southwark Crown Court, London.
Similarly on 1 November 2007, Mr Ibori's wife, Theresa Ibori, was arrested at Heathrow Airport. It was in the course of completing the necessary formalities that her (and Mr Ibori's) previous convictions in London came to light. On the same day, Mr Ibori's lawyer, Mr Bhadresh Gohil, a partner at the London firm, Arlington Sharmas Solicitors was also arrested.
Mrs Ibori and Mr Gohil were both charged with four counts of money laundering in the Southwark Court on 20 May 2008 and 24 September 2008 respectively. Mr Gohil is charged with conspiring with and assisting Mr Ibori, Mrs Ibori and Ms Okoronkwo to launder millions of pounds between 1 March 2005 and 24 September 2008.
At a preliminary hearing of the consolidated case before His Honour Judge Rivlin QC at the Southwark Crown Court on 22 October 2008, the defendants' legal team outlined a submission that the cases should be dismissed for lack of evidence. However, for this submission to succeed incriminating evidence provided to the Metropolitan Police by the EFCC would have to be excluded from consideration.
It is in this regard that the Nigerian government will play a key, if ignoble, role. Mrs Ibori's counsel referred to a letter written to the Home Secretary by Mr Aondoakaa that will form the basis of the arguments on the legality and admissibility of the evidence obtained from the EFCC at the hearing fixed for 13-14 November 2008.
The contents of the letter are yet to be made public but Mr Aondoakaa is expected to rely once again on Article 3 of the Mutual Legal Assistance Treaty which provides as follows: "(1) A request under this Agreement shall be made by a Central Authority for each Contracting Party. The Central Authorities shall communicate directly with each other to implement the provisions of this Agreement. (2) For the Federal Republic of Nigeria, the Central Authority shall be the Attorney-General of the Federation and for the Government of the United Kingdom of Great Britain and Northern Ireland the Central Authority shall be the Secretary of State for the Home Department."
He would then argue that the EFCC acted beyond their powers by giving evidence direct to the Metropolitan Police without his consent and that as such the evidence was illegally obtained and inadmissible.
This line of argument would raise interesting, albeit familiar, issues. Does the naming of the Attorney-General as the Designated Authority under the Mutual Legal Assistance Treaty mean that Mr Aondoakaa has to personally vet all evidence provided pursuant to a request under the treaty?
Should the Carltona principle not apply such that the EFCC, which Mr Aondoakaa is reported to have delegated the matter to, are entitled to complete the task on his behalf, particularly in view of the fact that there is no question about the genuineness of the evidence supplied by the EFCC?
Article 3(1) of the treaty provides that the treaty "shall not prevent or restrict any assistance or procedure available ... under the laws of the Contracting Parties". The Economic and Financial Crimes Commission (Establishment) Act 2004 (the "EFCC Act") confers the primary responsibility for combating financial and economic crimes on the EFCC, including the enforcement of the provisions of the Money Laundering Acts of 2004, 2003 and 1995. Therefore does the EFCC have independent powers under the EFCC Act to provide evidence to the Metropolitan Police in relation to a money laundering investigation?
What is the significance of section 6((j) of the EFCC Act that 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 concerning the identification, determination, of the whereabouts and activities of persons suspected of being involved in economic and financial crimes and the movement of proceeds or properties derived from the commission of economic and financial and other related crimes"?
What about the very important provision of section 6(k) of the EFCC Act that the EFCC "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?
Other provisions of section 6 of the EFCC Act, which amongst other things, authorise the EFCC to co-ordinate and enforce of all economic and financial crimes laws and enforcement functions conferred on any other person or authority (section 6(c)); to facilitate rapid exchange of technical information and the conduct of joint operations geared towards the eradication of economic and financial crimes (section 6(g)); and to carry out such other activities as are necessary or expedient for the full discharge of all or any of the functions conferred on it under this Act (section 6(q)).
Section 43 of the EFCC Act provides that the Attorney General "may make rules or regulations with respect to the exercise of any of the duties, functions or powers of the Commission under this Act". Will Mr Aondokaa produce such a 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?
After all, he was able to produce a parallel, favourable judgement after Justice Mohammed Umar of the Federal High Court Abuja ordered the government to stop the handover of Bakassi Peninsula to Cameroun pending the determination of the suit brought by some Bakassi indigenes.
Can any such subsidiary legislation, which will be inconsistent with the legislation objective of the EFCC Act, be legal?
In the final analysis, whatever the outcome of the hearing in the Southwark Crown Court on the 13th to 14th November 2008, the prolific own-goal-scoring government of Umaru Musa Yar'Adua will, by Mr Aondoakaa's official intervention, expose itself on the world stage as a government of the thieves, by the thieves, and for the thieves.