The immoral and illegal frustration of the repatriation of the remaining Abacha loot

1.00   Introduction

1.01   Following the inauguration of the Mohammadu Buhari Administration the Governments of the United Kingdom, United States and Switzerland promised to facilitate the repatriation of the stolen wealth of Nigeria. Apart from describing Nigeria as a “fantastically corrupt” Mr. David Cameron did not accede to the request of President Buhari to recover and repatriate the looted wealth of Nigeria which has been located in the United Kingdom. In spite of several assurances the United States Government has continued to frustrate the legal proceedings filed by Nigeria in Jersey, United Kingdom for the recovery and repatriation of the remaining Abacha loot. On its own part the Swiss Government has imposed a conditionality before repatriating the sum of $321 million in its custody to Nigeria.

In view of the attempt by the Governments of the United States and Switzerland to mislead Nigerians to believe that discussions are ongoing towards the recovery and repatriation of the Abacha loot it is pertinent to review the roles of both countries in frustrating the recovery efforts.

2.00   United States of America.

2.01   At a conference to mark the International Anti-corruption day in Abuja on December 8, 2016 I accused the governments of the United States of America and Switzerland of frustrating the legal proceedings initiated by the Federal Republic of Nigeria in foreign banks for the recovery and repatriation of the remaining Abacha loot. In his reaction to the accusation Mr. David Young, the Deputy Chief Mission of the United States Embassy in Nigeria stated that “we have legal processes that we have to go through in order to recover these stolen assets but we are committed and involved in dialogue with the Nigerian Government to move forward in this effort.”

2.02   I agree with Mr. Young that the United States is committed to the recovery of the Abacha loot. While it cannot be disputed that the government of the United States is committed to the recovery of the Abacha loot it has vigorously opposed the repatriation of the loot to Nigeria. The evidence of baseless opposition of the US is set out below:

1. At an anti-corruption workshop held at the American Embassy at Abuja on Thursday, December 8, 2016, I did accuse the Governments of the United States and Switzerland of frustrating the legal proceedings initiated by Nigeria to recover and repatriate the remaining Sani Abacha loot. sum of USD300 Million Abacha money held by either of Doraville (company held by the Abacha Family or associates) or the Viscount in Jersey (Channel Island).  In his reaction to my statement, the Chief of Mission of the US embassy, Mr. Young disclosed that the US Government would enter into dialogue with the FGN on the remaining Abacha loot.
2. The Federal Republic of Nigeria had adopted various routes and strategies to freeze, recover and repatriate to Nigeria the proceeds of corruption amassed by a former military ruler, the late General Sani Abacha and his associates. In particular, legal proceedings have been filed in many courts including a criminal complaint in Switzerland and requests for mutual legal assistance to various European nations. Others include claims in England (both in the Commercial Court and the Chancery Division) directly against inter alia Mohammed Sani Abacha (“Abacha”) and Abubakar Atiku Bagudu (“Bagudu”), together with companies associated with them, including Doraville Property Corporation (“Doraville”).
3. The various English proceedings were settled after both Abacha and Bagudu entered into agreements with the FRN to bring about the repatriation of the various assets to Nigeria. These assets include the monies held by Doraville.
4. As part of its overall strategy, the FRN made requests for mutual legal assistance to the United States of America (‘the MLA Request). This request was made to ensure that the full resources of the international community were available to assist the FRN in recovering the stolen funds and other assets in accordance with the provisions of the UN Charter Against Corruption (“the Convention”).  The MLA Request was made on 28 August 2012 in accordance with the provisions of the Convention. The request was made in the belief that the USA would give priority consideration to returning any confiscated funds to the FRN, on the basis that the FRN was both the Requesting Party and also the victim of the crimes under the Convention.
5. The United States has itself obtained a default judgment in the USA against Doraville, which it is now seeking to enforce in Jersey under the Civil Asset Recovery (International Co-operation)(Jersey) Law 2007.  If these proceedings are successful, the monies thereby recovered will be confiscated by the Jersey authorities, subject to the terms of any Asset Sharing Agreement between Jersey and the USA.  I understand that there is such an Agreement in place, and that it may provide for any monies so recovered to be divided between the USA and Jersey in equal shares to the exclusion of Nigeria.
6. From statements made by the USA in other proceedings, it appears that the USA has been careful not to make any clear statement of its intentions as to the fate of any monies recovered in these proceedings.  Certainly there has been no clear statement to the effect that monies ultimately recovered by the USA in these proceedings will be returned to Nigeria.  Instead, the USA has made vague and unspecific references to the monies being applied ‘for the benefit of the people of Nigeria’.
7. Ms Debra Lynn Laprevotte, a supervisory special agent of the FBI had filed an affidavit served in support of an application made by the US Government in England for freezing orders in support of the same US forfeiture proceedings which it is seeking to enforce against Doraville in Jersey. At paragraphs 6 and 7 of her affidavit [p.118], Ms Laprevotte notes that ‘the US civil forfeiture action has been sealed pending applications to freeze relevant assets in England, Jersey and France… Since 2010 a special unit of the US Department of Justice has been engaged in “the Kleptocracy Asset Recovery Initiative”…which seeks through international co-operation to recover assets acquired through the abuse of public office by corrupt officials and their associates so that they may be used for the benefit of the people of the nations harmed by their wrongful conduct’. (Emphasis added).
8. At paragraph 86, Ms Laprevotte acknowledges that as a matter of English law, the English courts would not enforce a foreign penal law. She contends however that ‘the substance of the proceedings [the US forfeiture proceedings] is the disgorgement of proceeds of fraud (or other wrongdoing) which is to be recovered for the benefit of those harmed by the wrongdoing…the current proceedings seek the civil forefeiture of stolen monies with a view to their recovery for the benefit of the people of the nation harmed by the abuse of office” (emphasis added)[p.166]. It is not clear to me what this phrase is intended to mean, or how the US Government proposes to use such monies for the benefit of citizens of another sovereign state.
9. In a similar vein, in the correspondence between FBI agent Elizabeth Aloi (who has also sworn evidence in the instant proceedings) and Stephen Goadby of the UK Home Office on the issue of the intentions of the US Government in respect of any monies confiscated in England in support of the US forfeiture proceedings.  Mr Goadby says:

‘The UK may deduct any reasonable expense, but otherwise on the basis that the UK is satisfied that the funds are embezzled public money from Nigeria, the UK considers itself under an obligation under UNCAC (if not in exact language then in spirit) to return the money to the requesting State.  In these circumstances and in principle (in advance of having the full facts of the case) the UK would return the money to the US with some confirmation from the US would seek to return the money to Nigeria… (sic)”

10. By a letter dated 25 June 2014, Ms Aloi responded to the effect that:

“In connection with the United States’ June 9, 2014, Fifth Supplemental Request for Assistance in the Investigation of Mohammed Sani Abacha, Abubakar Bagudu and Others, you have asked the United States to confirm how the United States intends to spend assets that may be successfully forfeited to the United States in our civil forfeiture action, United States v All Assets Held in Account Number 80020796, in the Name of Doraville Properties Corporation, Et Al., 13-cv-1832 (D.D.C).

In keeping with US practice of using forfeited funds, where practicable and not inconsistent with the law, to restore forfeited property to victims of the underlying criminal violation or to protect the rights of innocent persons in the interests of justice, we anticipate that, if funds are forfeited in this matter, the United States will endeavour to utilise the assets for the benefit of the people of Nigeria” (my emphasis)

11. I also note that Ms Aloi’s careful choice of words, and evident unwillingness to confirm that the US Government would repatriate any monies to Nigeria, was highlighted by the English Court of Appeal (USA v Abacha [2015] 1 WLR 1917, which discharged the freezing orders obtained by the USA on the basis that they had been improperly granted. Giving the leading judgment, Gloster LJ (with whom the other members of the Court agreed) held that the US civil forfeiture judgment was not enforceable as a matter of English law [pp.215]:

“the justification of the present proceedings is clearly penal (namely allegedly illegal money laundering in the US) and their basis is not compensatory.  The fact that ultimately the US may in its absolute discretion decide (and its current intentions are not transparent, to say the least) whether, pursuant to treaty obligations or otherwise, to remit moneys derived from the forfeited assets to the FRN is irrelevant to the correct characterization of the US proceedings”. (Emphasis added)

12. Further, the USA’s stance is entirely contrary to the purpose and spirit of the MLA Request, which was intended to bring about the recovery of monies for Nigeria (which after all is the victim of the fraud and the rightful owner of these monies).
13. The USA has itself already shown a complete disregard of any mutual understanding or co-operation as between itself and the FRN, by continuing to pursue forfeiture proceedings against the assets of two companies linked to Bagudu named Blue Holding (1) PTE Limited and Blue Holding (2) PTE Limited. This was in spite of a letter from the Attorney-General of Nigeria dated 16 June 2014 confirming that the FRN and Bagudu had reached a settlement in relation to these assets and asking that insofar as the Letter of Request from the Federal Republic of Nigeria to the United States can be read as relating to Mr Bagudu and/or the Blue Companies…it should be treated as withdrawn’.  This request was entirely ignored by the USA.  The strong inference is that the USA is pursuing its “Kleptocracy Asset Recovery Initiative” according to its own agenda, rather than with the intention of repatriating all or any of the monies recovered to Nigeria.
14. I understand that it is suggested by the USA that the FRN is estopped from bringing proceedings against Doraville in Jersey to recover the proceeds of the fraud, because the FRN made the MLA Request, and because the FRN assisted in facilitating the service of the US proceedings upon Mohammed Sani Abacha and Bagudu.  I do not understand this suggestion.  As I have indicated above, the whole point of the MLA Request was to secure the recovery of monies for the FRN.  It appears that the USA now however does not intend to abide by the spirit of the request, and instead intends itself to apply any monies recovered by it as it alone sees fit. In the absence of a common understanding between the FRN and the USA as to what should happen to the monies recovered in the Doraville proceedings, no estoppel can exist.
15. I also understand that the USA is suggesting that the proceedings brought by the FRN against Doraville are in some way collusive or are otherwise an abuse of court process.  I do not understand this contention.  The FRN is bringing proceedings in Jersey against Doraville to establish the FRN’s status as the party which has been defrauded of these monies, and therefore the party with a paramount proprietary interest in them.  There is nothing artificial or underhand about these proceedings.  What the FRN is seeking to achieve is establish as clearly as possible its own interest in these monies. It is the frivolous objection of the USA which has prevented the Court from ordering the repatriation of the fund to Nigeria. 

3.00  Switzerland

3.01   Pursuant to a letter Ref No: HAGF/AGG/2014/Vol. 1/1 dated 14^th July, 2014 addressed to the Attorney-General of Geneva, Mr. Oliver Journor by the then Attorney-General of Nigeria & Minister of justice, Mr. Mohammed Adoke SAN the Swiss Government was informed that Messrs. Mohammed Abacha, Abba Abacha as well as their associates had entered into a Repatriation Agreement with the Government of Nigeria to the effect that the Luxemburg fund, hitherto held by the Canton of Geneva, Switzerland formed part of the assets to be forfeited to the Government of Nigeria.

Consequently, the Attorney-General of Nigeria instructed the Attorney-General of Geneva, upon the confiscation of the Luxemburg fund to pay the following persons as follows:

(i)      CHF 3,000,000 to the State of Geneva to cover its expenses

(ii)     the Swiss Francs equivalent (CHF) of USD 9, 703,141.67 (corresponding to 4% of the gross amount of USD 242,578,541.72 recovered from Liechtenstein on 23^rd December, 2013 and 25^th June 2014), plus 4% of the gross amount of the forfeited Luxembourg in favour of the account of Mr. Enrico Monfrini, in settlement of his professional fees.

(iii)    the Swiss Francs equivalent (CHF) of USD 6, 792,191.17 (corresponding to 4% of the gross amount of USD 242,578,541.72 recovered from Liechtenstein on 23^rd December, 2013 and 25^th June 2014), plus 2.8% of the gross amount of the forfeited Luxembourg Assets in favour of the account of Mr. Enrico Monfrini, in settlement of the professional fees and expenses of the attorneys of the Abacha family.

(iv)    the euro equivalent (EUR) of USD 5,000,000 to the account of Mr. Enrico Monfrini, as a retainer for the action to be brought against MM Warburg & Co. Luxembourg SA and other potential defendants.

(v)     USD 750,000 on the account of HBK Investments Advisory SA, in settlement of their professional fees for the management of the Luxembourg assets.

(vi)    the balance of the forfeited Luxembourg assets should be converted into US Dollars and paid into the special recovery account of the Nigerian Government with the bank for International Settlements.

3.02   In line with the instructions of the Attorney-General of Nigeria, the Swiss Government has paid the professional fees set out in (i) to (vi) above on or about 23^rd December, 2014. However, the Swiss Government has refused to repatriate the balance of $321 million to Nigeria without any legal justification whatsoever. In order to further delay the repatriation of the said sum of $321 million the Swiss Government blackmailed Nigeria to allow the World Bank to monitor the projects to be executed with the fund. Although the Government of Nigeria agreed to the illegal conditionality the Swiss Government has refused to repatriate the fund.

3.03   Having regard to the fact that the World Bank had conspired with a former Finance Minister in Nigeria, Dr. (Mrs.) Ngozi Okonjo-Iweala to produce a fake report listing several projects which were not executed in any part of Nigeria the attempt to involve the bank in the management of the fund by the Government of Nigeria is fraudulent. It is also a subversion of the sovereign rights of the people of Nigeria.

4.00   CONCLUSION

4.01   In the light of the foregoing, the idea of fresh dialogue being suggested to by the United States Government is further going to delay the recovery and repatriation of the $300 million. Since the USA has no legal claim to the said sum $300 million we call on President Barrack Obama to ensure that the frivolous objections filed in the recovery proceedings in the High Court in Jersey by the US are withdrawn before the end of his term of office on January 20, 2017. Similarly, we call on the Government of Switzerland to repatriate the sum of $321 million of the Abacha loot to Nigeria without any further delay.