On December 4, 2017 in Washington D.C, United States of America, Mr. Abubakar Malami (SAN), the attorney general of the federation and minister of justice; Ambassador Roberto Balzaretti, secretary of state and director of the directorate of International Law and Rachid Benmessaoud, country director for Nigeria, the International Development Association (IDA), signed a Memorandum of Understanding (MOU). It was between the Nigerian government, the Swiss Federal Council and the IDA “On the Return, Monitoring and Management of Illegally-Acquired Assets Confiscated By Switzerland To Be Restituted To The Federal Republic Of Nigeria.”
This MoU stated in explicitly clear and unequivocal terms the modalities for the return of the illicit funds, its usage, monitoring – both locally and abroad, international and local organisations that would ensure that the funds are utilised for the benefit of the poor, downtrodden and the underprivileged persons in Nigeria. The essence was to ensure that the Nigerian officials to be involved in the management of the funds do not convert them into personal benefits or foster corruption in the society or use the money for political gerrymandering.
The document states that, “Appreciating that pursuant to the partnership between the 2 countries, an approximate sum of US$730,000,000 which was illicitly acquired by the Late General Sani Abacha family, was restituted to the Federal Republic of Nigeria in 2005 by Switzerland, in cooperation with the International Development Association (hereinafter called the “World Bank”) which provided the necessary institutional support to ensure the sustainable use of the restituted funds;”
“Welcoming the fact that approximately US$321,000,000 of funds illicitly acquired by the late General Sani Abacha family, initially deposited in Luxemburg and confiscated by the Judiciary Office of the Public Prosecutor of the Republic of Canton of Geneva pursuant to a Forfeiture Order dated 11th December, 2014 can today be restituted to the Federal Government of Nigeria (hereinafter called the “Funds”).
The document further provides that, “Whereas the governments have agreed that the Funds shall be used to support a program of Targeted Cash Transfer under the National Social Safety Net Project (“The Project”) to be financed by a credit (the “IDA” Credit) extended by the “World Bank “, pursuant to the Financing Agreement dated January 27, 2017, between the Federal Government of Nigeria and the World Bank.” It was also agreed by the parties that, “Whereas by letter dated April 3, 2017, the Public Prosecutor of the Republic and Canton of Geneva confirmed that the World Bank’s customary monitoring in its operations would be sufficient for the purposes of the aforementioned Forfeiture Order.”
The Scope of Cooperation is defined in Article 2:1 and 2:2 thus: “The Scope of this Memorandum of Understanding is to define the mechanism for the return of the funds to the Federal Government of Nigeria exclusively for the purpose of financing Targeted Cash Transfers, as defined in the Financing Agreement.” The World Bank was charged with monitoring the funds and providing financial reports.
It is, therefore, correct to state unequivocally that this is an unfair, unjustifiable, lopsided and inequitable distribution of the commonwealth, which is at complete variance with the terms of the executing document. Would it be correct to opine that this gross violation of the Federal Character principle enshrined in the constitution..?
The most critical provision of the MoU states in Article 5:2 that, the Nigeria government undertakes to use the funds in accordance with its provisions.
Another important provision is Article 6, which provides that the Nigerian Government shall engage civil society organisations in the monitoring exercise without incurring financial expenditure.
It is also important to note that the disbursement of the funds would be in tranches biennially.
Article 10 of the MoU states that, “the World Bank assumes no liability or responsibility for the use of the Funds”. Article 13 on “Anti-Corruption” states: “the parties combine their efforts to fight corruption in connection with the Project and ensure that no offer, donations, payments, remuneration or advantage in any form whatsoever considered as an illicit act or a form of corruption, has been or will be granted to anyone, directly or indirectly in the context of this Memorandum of Understanding.” And, “Each Party agrees to inform the other Parties in the event that any credible allegation or other indication of fraud or corruption in connection with the Funds comes to its attention.”
Article 17 states that “This Memorandum of Understanding shall remain in force until the amounts held in the Dollar Designated Account and the Naira Designated Account have been utilised for Eligible Expenditures under the Project.”
It is apparent that the purpose of this elaborate and explicit document is to ensure that the money is used for the benefit of a vast majority of the poverty stricken and downtrodden in the Nigerian society, who can barely afford one-square nutritious meal a day. While this is explicit, the amount to be disbursed and to whom are determinable only by the Federal Government of Nigeria and this is rightly so.
We all recall that the incumbent government, during its electioneering campaign in 2015, had promised to pay a stipend of N5,000 to the poor to alleviate poverty. This promise has so far not been met. It therefore appears that the decision of the federal government to pay N5,000 per month to a select populace is nothing but to surreptitiously fund this campaign promise with the repatriated funds. This is dishonest and deceitful and in complete variance with the MoU.
Because of poor empirical records in Nigeria, it is impracticable to justiciably implement this MOU. The vast majority of the intended beneficiaries are in very remote parts of Nigeria, which are mostly inaccessible, with no electricity, bad and inaccessible roads and no banks or financial institutions.
In February, 2018, Nigeria overtook India as the country with the most people living in extreme poverty. The United Nations estimates that 42.4 per cent of the Nigerian population, or 80 million persons, live on less than $2.2 or N900 per day. However, only about 455,857 of the number of poor people have been captured in the National Security Register being used by the federal government for its National Cash Transfer Programme. And, the monthly stipend of N5,000 is being paid to only 297,973 of the 455,857 identified poor and vulnerable households captured in the Register.
The beneficiaries are residents in 20 out of the 36 states of the federation. These are: Jigawa, Bauchi, Kogi, Osun, Cross-River, Anambra, Katsina, Kano, Taraba, Gombe, Adamawa, Niger, Nassarawa, Benue, Oyo, Ekiti, Kwara, Borno (IDP), Kaduna and Plateau. It is important to note that 15 out of these 20 states are in the northern part of Nigeria, showing a lopsided distribution network in favour of a geographical region at the expense of others.
It is, therefore, correct to state unequivocally that this is an unfair, unjustifiable, lopsided and inequitable distribution of the commonwealth, which is at complete variance with the terms of the executing document. Would it be correct to opine that this gross violation of the Federal Character principle enshrined in the constitution is because the main dramatis personae are all from the said geographical axis?
Because of poor empirical records in Nigeria, it is impracticable to justiciably implement this MOU. The vast majority of the intended beneficiaries are in very remote parts of Nigeria, which are mostly inaccessible, with no electricity, bad and inaccessible roads and no banks or financial institutions. The average household of the “poor” is likely to comprise 10 people – the father, two wives and seven children, as such what impact would N5,000 a month have on this typical sort of household?
It is, therefore, reasonable to conclude that it is impracticable to implement the terms of the MoU, that the government officials and parties know this as a fact and the involved local Non Governmental Organisations (NGOs) or even the World Bank are ill equipped to appropriately monitor this Targeted Cash Transfer scheme. It is hoped that the repatriated Funds would not be utilised by the incumbent party in government for the forthcoming electioneering campaign. It is apposite to note that this government is being decimated on a constant and day-by-day basis by it’s membership and it’s fight against corruption appears to be a selective crusade against political adversaries. Also, the security of lives and property in the country are appalling and there appears to be no immediate or decipherable solution to this logjam, which in reality is the essence of governance. The funds could be better utilised on those concerns, as opposed to this convoluted and parambulative arrangement that would benefit, if at all, a negligible number of the poor and down-trodden in the society.
Furthermore, I do not think the Swiss government in whose custody the stolen funds were found, has any moral basis to dictate or even suggest how such funds should be utilised.
‘Kunle Uthman, a legal practitioner, writes from Lagos, Nigeria.
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