Prosecuting Transborder Crime Challenges and Prospects A presentation

Prosecuting Trans-border Crime: Challenges and Prospects A presentation delivered by Chief Godwin Obla SAN, FCIArb

Introductory remarks/graphic illustrations In 2012 Nigeria was ranked no 139 on Transparency International’s Perception Index. In 2013, Nigeria slipped to No 144 on the Index. The country is perceived as having one of the most corrupt public sectors in the world, with its Transparency rated at 27%. The United Nations Office on Drugs and Corruption (UNODC) estimates that between $480 bn – $600 bn have been stolen from Nigeria’s coffers between independence and Now. There have been several efforts to recover these assets, but mostly they have failed. Why is this so?

Nigerian Public Funds stolen Amount Stolen ($) between 1994 -2014 Amount Stolen Joshua Dariye 50, 816, 000 Jolly Nyame 10, 123, 456 James Ibori 264, 011, 200 John Yesufu 235, 802, 469 Cecilia Ibru (pleaded guilty) 1, 300, 000 Chimaroke Nnamani (PEP) 243, 000 DSP Alamieyesegha (PEP) 243, 363, 200 Lucky Igbinedion (pleaded guilty) Tafa Balogun (pleaded guilty) Sani Abacha 154, 559, 500 150, 000 8, 410, 000 Sources: Charges filed before the court; CAPITAL LOSS AND CORRUPTION: THE EXAMPLE OF NIGERIA by Nuhu Ribadu, Former Executive Chairman, Economic and Financial Crimes Commission (EFCC) of Nigeria.

Prosecution of Money Launderers/Fraudsters in 2013 Total Convictions 117 Cases Arraigned Source: http: //www. efccnigeria. org/index. php/news/736 -efcc-sets-to-secure-more-convictionsin 2014 533

Definition § � � � � Corruption is a complex social, political and economic phenomenon. (http: //www. unodc. org/unodc/corruption. html) There is no single, universally accepted and comprehensive definition of corruption. Attempts to develop such a definition invariably encounter legal, criminological and, in many countries, political issues. Corruption may be operationally defined as the misuse of entrusted power for private gain. Corruption means bribery and related offences. (CPC ACT)k Cross-border corruption may be defined as corrupt practices, which transcend national geographical territory, in contravention of national or transnational laws, involving individuals, body corporate and in some cases politically exposed persons(PEP). Examples include: Embezzlement, nepotism bribery, misappropriation, mismanagement, undue gratification, bid rigging, e. t. c. . Note: Only the category of corruption which qualifies as crime that may be prosecuted. Section 36(6)(12)of the 1999 Constitution of the Federal Republic of Nigeria (as amended) vis-à-vis persons charged with criminal offence stated that; “ … a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law …”. An act may be morally reprehensible unless there is a law which makes that act punishable and goes ahead to prescribe the punishment for it , a Judge, any court of law is hamstrung to sentence and punish the perpetrator. (Per Aderemi JSC in Dapianlong v. Dariye (2007)8 NWLR (Part 1036)SC 332 at paras. A-B)

Relevant Laws � Relevant Laws In Nigeria: � Economic And Financial Crimes (Establishment ) Act (EFCC Act) 2004. Commission � Money Laundering (Prohibition ) Act (Ml Act) 2011. � Public Procurement Act (PP Act) 2007. � Corrupt Practices And Other Related Offences Commission Act (CPC Act)2003. � Code Of Conduct Bureau And Tribunal Act C. 15 LFN 2004

Cross-border corruption cases prosecuted by Chief Godwin Obla SAN, FICArb include: � CHARGE No CR/95/10 (FCT High Court of Nigeria) FEDERAL REPUBLIC OF NIGERIA v. IBRAHIM ALIYU, AVM ABDULLAHI DOMINIC BELLO, MOHAMMED GIDADO BAKARI, URBAN SHELTER LIMITED, INTERCELLULAR NIGERIA LIMITED, TRI-STAR INVESTMENT LIMITED, TSKJ NIGERIA LIMITED, TECHNIP S. A, SNAMPROGETTI, KELOGG, BROWN AND ROOT INC, JAPAN GASOLINE CORP OF JAPAN, TSKJ CONSORTIUM. � CHARGE NO FHC/ABJ/CR/162/2010 (Federal High Court of Nigeria): THE FEDERAL REPUBLIC OF NIGERIA v. SIEMENS NIGERIA LIMITED, SIEMENS AG, C. WOERMAN NIGERIA LIMITED, C. WOERMAN AG, DETLEV WOERMAN (at large), EDWARD SEIDEL (at large), RALF HENRICH, DICK WARNER (at large).

Cross-border corruption cases prosecuted by Chief Godwin Obla SAN, FICArb include: � CHARGE NO FCT/CR/119/10 (FCT High Court, Abuja): FEDERAL REPUBLIC OF NIGERIA v. SIEMENS AG, SIEMENS LIMITED, MAIGADA SHUAIBU, MAHMOOD SADIQ MOHAMMED, EMMANUEL CHUKWUEMEKA OSSAI, EDWIN MOORE MOMIFE � CHARGE NO: FHC/L/297 C/2009 (Federal High Court of Nigeria) FEDERAL REPUBLIC OF NIGERIA v. DR (MRS) CECILIA IBRU � CHARGE NO CV/435/2010 (FCT High Court, Abuja) FEDERAL REPUBLIC OF NIGERIA v. HALLIBURTON INC, HALLIBURTON NIGERIA LIMITED, KELLOGG, BROWN AND ROOT INC (KBR), RICHARD “DICK” CHENEY, ALBERT “JACK” STANLEY, WILLIAM UTT, DAVID LESAR, TSKJ NIGERIA LIMITED, TSKJ

THE PRACTICAL CHALLENGES VIS-À-VIS THE PROSPECT

Settlements are being used increasingly to dispose of cases involving international money laundering and bribery. This is because of the relative ease (when compared with litigation which can often be drawn out and expensive) of getting a guilty verdict and recovering the assets illegally moved.

Ingredients Of settlements �In Nigerian practice so far, four ingredients have been present in cases were individuals and corporate bodies were indicted in corruption/money laundering cases: �The offender is charged. In some cases, some organizations initiate settlement moves as a prelude to being charged. �The offender pleads guilty �The offender agrees to pay monetary fines among other terms �The terms of the agreement are kept confidential, subject to exceptions woven into the agreement.

How successful have settlements been? Statistics available from the Stolen Assets Recovery Initiative show that of the 395 cases settled between 1999 and mid-2012, a total of about $6. 9 billion dollars have been imposed as monetary fines in 3 categories: � About $5. 9 billion was awarded in countries other than the victim/affected countries. � About $556 million was awarded in countries where the bribery took place � Other cases amounting to about $385 million � It is interesting to note that of the first category, only $197 million was actually returned to the Jurisdictions where they were stolen from. Source: “Left out of the Bargain: Settlements in Foreign Bribery Cases and Implications for Asset Recovery” by J. A. Oduor, F. M. Fernando et al” A publication of the Stolen Asset Recovery Initiative. Available at http: //www. star. worldbank. org? star/sites/star/files/978146800863. pdf

Corporate Bribery cases in Nigeria disposed of by Settlement � Siemens AG (Telephony Infrastructure Contracts bribe scheme) � Bribe Offered: $22, 000 � Money Paid in Fines: $50, 000 � Julius Berger (Money Laundering) � Amount laundered: $5, 000 � Money paid in Fines: $29, 000 Bribery by Oil Services and Freight Forwarding Companies This is in relation to the Panalpina Bribery Scandal involving the Nigerian Customs. NOTE: that at the time prosecution was contemplated in Nigeria, Panalpina Nigeria which was the culprit had been wound up and was no longer in existence legally. � Noble- Swiss Corporation� Monetary fine paid: $2, 500, 000 � Tidewater Inc Source: Settlement database on s. TAR. Available on http: //www. star. worldbank. org � Monetary Fine Paid: $6, 300, 000

Corporate Bribery cases in Nigeria disposed of by Settlement � TSKJ Consortium (Bonny Island Liquefied Natural Gas Bribe Scheme) The TSKJ Consortium (consisting of Technip, Snamprogetti Netherlands B. V, Japan Gas Company, Kellog-Brown Root , a subsidiary of Halliburton) was formed to bid for contracts to build the Bonny Island Liquefied Natural Gas Plant in Bonny, Rivers State. In order to secure the contract, the consortium paid bribes amounting to $170, 000 to various low and mid-level public officers. When the consortium was charged, they separately agreed to an out of court settlement. Among other terms, the following were paid as follows: � Technip- $30, 000. 00 � Snamprogetti Netherlands B. V. $32, 500, 000. 00 � Japan Gas Company- $24, 385, 000 � Kellog-Brown (Halliburton)- $35, 000 � The Nigerian Attorney-General, Mohammed Bello Adoke SAN in a press conference stated that apart from these fines, the consortium was forced to disgorge profits already made, which pushed the total figure recovered to $170, 000. Source: Settlement database on s. TAR. Available on http: //www. star. worldbank. org

Amounts given as bribes/laundered compared with money recovered via settlement Chart Title Bribe paid/Amount Laundered ($) Monetary Fine Paid ($) 35, 000 32, 00030, 000 29, 000 24, 355, 000 6, 300, 000 2, 800, 000 r. I nc s Source: Settlement database on s. TAR. Available on http: //www. star. worldbank. org Ti de w at e -S w is hn i Te c le p N ob sn am pr o ge t ti JG C er Be rg s Ju liu H al ib ur to n 6, 000 5, 000 6, 000, 0006, 000

In addition to Monetary Fines �Indicted corporate organizations are required to submit annual audit reports to the Monitoring and Compliance committee. �They are also required to provide any information concerning finances and government relations to the committee. �They are required to train and retrain staff, with regard to ethics and International best practices in government relations.

Challenges to Recovery of Stolen Assets � Many of the persons indicted are high ranking public officials protected by immunity clauses. � Even when they leave office, their allies in power shield them from prosecution. � The stolen assets are moved to corruption havens/countries with no extradition treaties. � The countries where these monies are moved practically shield the offenders from the law � The United states government refused a Mutual Legal Assistance request by Nigeria in the TSKJ consortium case. � The Nigerian participants in the TSKJ bribery could not be prosecuted because the evidence needed to convict them was in possession of the German authorities. The German constitution prevents the government from releasing information to aid the trial of its citizens in other countries. � France once refused an application for Mutual Legal Assistance from Nigeria because the Request was written in English. � The countries where stolen Assets are hidden benefit more from the funds and are unwilling to return them to the affected countries. � The United States recently froze over $450 mn dollars of the Abacha loot. � $100 mn, part of the bribes paid by the TSKJ consortium was seized by the Swiss Government and remains frozen.