Human rights lawyer, Femi Falana, has called on President Muhammadu Buhari to reject the conditionality attached by the Swiss government before the return of $321 million Abacha loot to Nigeria.
In a letter to the president, Mr. Falana said though corruption is a problem in Nigeria, the conditions provided by the Swiss government were a violation of international laws.
“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,” Mr. Falana, a Senior Advocate of Nigeria, stated in the letter dated September 9.
“In the proposed suit Nigeria should claim punitive and exemplary damages and interests from Switzerland for keeping the loot for over 20 years.”
In July, the Swiss government signed a Memorandum of Understanding with the Nigerian government towards the return of the money looted by Nigeria’s late dictator, Sani Abacha.
A first tranche of the Abacha loot – $722 million – had been repatriated to Nigeria in 2005.
Eric Mayoraz, the Swiss Ambassador to Nigeria, said the MoU signed in July would help remove bottlenecks usually associated with the return of the loot.
But according to Mr. Falana, the Swiss government had included in the MoU a condition that requires 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,” said Mr. Falana.
“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.'”
Mr. Falana said Article 57’s provision suggests 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,” Mr. Falana said.
“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.”
Mr. Falana also said the World Bank had failed to demonstrate sufficient level of transparency and accountability in its supervision of previously repatriated Abacha loot.
Last month, the Bank had requested for more time from a nongovernmental organization, the Socio-Economic Rights and Accountability Project (SERAP) to disclose details of how the Nigerian government spent previously recovered Abacha loot.
SERAP had requested for the information last year.
“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,” said Mr. Falana.
“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.”