The news is that former governor Orji Uzor Kalu of Abia state, along with Joshua Dariye of Plateau state and Turaki, of Jigawa were on July 13, 2007 charged with embezzlement of public funds.

I will be in court, whether in America or Nigeria , to present a defense of my brother, Orji Uzor Kalu, when he begins to present his defense. Why? Because the money he is alleged to have embezzled is really his share of the national cake.

I must remind the court that both Nigerian and American criminal laws are based on British common law (body of unwritten laws).  Under common law, it was called larceny if a man took property that belonged to someone else, with the intent to appropriate that property for himself or for a third party. By taking or withholding such property from the rightful owner, with the required intent to deprive the owner of ownership, the man committed larceny. Larceny was a felony, the most serious form of crime.

Common law larceny required that you must ‘take’ the property or ‘withhold’ it in order to be guilty of stealing it. In order words, if the real owner delivered the property to you in trust, for safe-keeping or for use in pursuing the goal of the owner, you were not guilty of larceny because you did not ‘take’ it but instead possession was delivered to you. In such cases where you lawfully received possession of the property for safe-keeping you were only guilty of a breach of trust, a misdemeanor, which is the least serious form of crime.

It is true that today, in American state laws and Nigerian laws, statutes have been enacted so that when the real owner delivers the property to you, in trust, and you withhold or appropriate that property for yourself or for a third party, you are now guilty of embezzlement, which is now a felony, no longer a misdemeanor. Embezzlement statutes were adopted in England in 1799.

To summarize, the accused embezzler must be someone in a position of trust, that is someone such as a governor, a banker, an attorney, who is given possession of the property (money in this case) in trust, and thereafter, with a felonious intent, he appropriates the property for his own personal use or for the use of his friends, relatives, or even girlfriends. In a case of embezzlement (distinguished from robbery or larceny, which is a taking by force or threat), possession of the money was delivered to the accused lawfully (such as by federal allocations to states) and then the trusted possessor misappropriated it.

Now, it is a basic rule of evidence that the government cannot convict a man of embezzlement unless it can prove that he had the intent (a felonious intent) to permanently deprive the owner of ownership. Just the act of using the funds is not enough.

It is also an indisputable, basic, rule of law and of common sense that a man cannot steal his own property, cannot embezzle his own property. If the property is his, logically he cannot possibly have the felonious intent to embezzle it.

For these reasons, it is agreed, by jurists and recognized in the rules of evidence, in all countries that took their laws from the British common law, that a man who has a bona fide belief, even though mistakenly held, that he has a right or claim to the property (money) that he is accused of embezzling does not have the felonious intent necessary for the conviction of the crime of embezzlement.  

For example, a good faith belief by the governor that the money he appropriated for himself belongs to him, even if it is a mistaken belief, is sufficient to preclude felonious intent.  Felonious intent exists only if the actor intends to take the property of another without believing in good faith that he has a right or claim to it. (People v. Barnett (1998) 17 Cal.4th 1044, 1142-1143.

This is where I must remind the court that the sovereign nation of Nigeria , since independence, has made hundreds of billions of dollars in oil revenue. These billions of dollars, which belong to all Nigerians, have yet to be divided. Some of that money is presently in private coffers outside Nigeria . Some are in the coffers of a few political and military families, while some are in public accounts in Nigeria .

The governor, having determined that the billions of dollars belong to all Nigerians, and having determined that the amount he was accused of embezzling was exactly what his share of the national revenue would be if the funds had been properly divided, had a good faith belief that what he appropriated to himself was his share of the national revenue.

Only the governor himself knows what he was thinking at the time of the alleged embezzlement. Consequently, only he can testify as to whether he believed that the funds he diverted were his own share of the national cake. And he did possess such belief.

I admit that as learned brothers and sisters, as jurists, as members of the bar and the bench, we may argue as to whether the governor’s belief was rational or reasonable (rationality or reasonableness of the belief is not a requirement so long as the belief was held in good faith). We cannot deny that he held that belief if he states that he did (which only he can know). If he did, as he informs me, then the felonious intent required for conviction was not in existence at the time he diverted the funds.

Therefore, I submit that the governor cannot be guilty of embezzlement.