HARUNA Abdullahi, called to the bar in 1983, was the lawyer who argued the case that climaxed with last Friday’s ruling by the Kaduna High Court that the freezing of the accounts belonging to former Head of State, late Gen. Sani Abacha and his family, was unconstitutional. In a chat with Weekend Vanguard, this former Attorney-General of Kogi State between 1993 and 2003 gives insight into the ruling and the challenges ahead.
Why did it take so long for us to come to this point of the ruling in Kaduna if you knew you had a case all along? And what do you think you can get out of it since so much of the looted funds had been since recovered?
Following government’s freezing of some of the Abacha family accounts, a member of the family, Ali Abacha briefed our chambers on the matter. So, we looked at the papers and went to court.
What we said in court was that the actions of the government were without legal justification. In 1999, the President acting under a law called Banking and Freezing of Accounts Act Cap 29, Laws of the Federation (1990), delegated his authority to freeze accounts to the Attorney-General of the federation and pursuant to that, he made requests to several countries asking that their (Abachas’) accounts and those of their friends and companies associated with them be frozen.
At the time this delegation of powers was done by the President, the law on which he acted had been repealed on May 29, 1999 by decree No 63. So, by the time the President delegated his powers, there was no law in force authorising him to freeze anybody’s account.
That’s why we went to court, to argue that since all the actions of the Federal Government were based on the Banking and Freezing of Accounts law, which was not in existence by the time the Attorney General made the requests, we’re saying that whatever actions that were taken under that law, by anybody, whether in Nigeria or outside the country, were illegal. The court agreed with us, and said that for as long as the President or the Attorney-General acted on that Act to request foreign countries to freeze the accounts of the Abachas, that action was illegal since there was no legal justification for it.
We asked the court to declare that at the time the President or the Attorney-General requested the foreign countries to freeze the accounts of the Abacha family, it had no power to do it and to declare that the freezing of those accounts based on the request of Nigeria, as a result of the repealed Act was illegal. The court granted this relief, and we sought an injunction, at the end of the day to restrain the government of Nigeria, seeking to get transfer to Nigeria of funds already frozen pursuant to that Act. This was also granted.
Who represented the government in this case?
The action was filed against the Attorney-General of the federation. When you sue him, you’ve sued the Federal Government. The Attorney-General was represented by a lawyer from the Federal Ministry of Justice. On the first day we appeared in court on the matter, he filed a preliminary objection, asked for an adjournment and was given a date to argue his points. On the date the matter was fixed, they (Attorney-General’s office) briefed one Paul Erekoro who came to court and argued the preliminary objection before the court gave judgment.
Do you see your client winning this war, even on a moral scale?
I am a lawyer and not a moralist. What I’ve done is to challenge what the Federal Government had done in freezing the accounts of the Abacha family based on laws available in the country. And those actions of government, in the face of the available law, are illegal. The morality or why they are doing it, whether it’s vendetta or whether they have cause to do it, was not my concern. I was only concerned with whether what they did was legal or not. The court said it was illegal, their action does not conform to the law. I am not permitted to impute motive.
To win in court is one thing, to enforce the judgment is another. How do you intend to pursue this case against the government that had begun to recover what it sees as looted funds?
If the judgement declared that the various steps taken by the government in freezing the accounts and trying to repatriate the funds to Nigeria were based on a foundation that is illegal, we intend to make this judgment available to authorities from where the requests have been made and try to follow it up with them.
But this is not about Nigeria alone. Foreign countries are involved...
Lawyers anywhere in the world are concerned about the same thing: the rule of law. We intend to pursue what has happened and what will happen, within the legal system.
One, we have got judgement in Nigeria, which declared what had happened within the country as illegal, and we intend to go to the authorities that have taken action pursuant to this illegal request, and seek a review of their decisions on the basis of this new declaration that the court in Nigeria has made. Or at least ask them to hold on further actions until the basis on which their decisions were made are clarified. Both sides still have up to the Supreme Court to challenge the legal basis on which the action of the Federal Government was based.
Also, we have lawyers outside Nigeria who have been engaged in the process of faulting whatever decision had been taken and we intend to give the judgment we have secured here to them to aid them in faulting the decision since those decisions have been found to be without foundation.
We expect that we are operating in a constitutional legal order. This matter also has a lot of international dimensions. So, we expect that a government that is preaching transparency in international fora would act transparently. We expect that they would obey court orders, and when they do not, we will commence legal processes to deal with the situation. I believe that they would obey the order of court.
What has happened is that the Federal Government did not freeze the account. What happened was that they made requests asking banks and countries where the monies are, to give them assistance. And one of the ways the countries and banks have offered the Federal Government help is by freezing the accounts.
They took the decision to freeze the accounts based on the information that’s available to them. They have also given opportunity to the Abacha family to show cause why the accounts frozen should not be transferred to Nigeria.
Right now, we have reason and justification to ask them not to transfer the money. The action was not done by the government, both of us are submitting ourselves to a determining authority.
What of the seizures done locally?
The seizures done in Nigeria are not being contested. They were backed by a decree that has effectively closed the door on any challenge.
Have you considered the implications of this judgment on similar issues the government is prosecuting?
This judgement considered what procedures are available internationally and locally for proceeding against what is perceived by government to be proceeds of corruption. There are two ways of doing so. Under our constitution, there is a presumption of innocence against every accused person, there is also right to property. Wherever you have your money or property in this country, you are presumed to be the owner until the contrary is proved.
That is what our constitution says, that is what is called due process. The government must first prove that you are in possession of illegal money. To do that, it needs to take you through the process of trial and conviction. That is what the court calls due process.
Another way of doing it after you have your evidence of illegal possession of proceeds of corruption, is that there are countries where you have international treaties and then you can request for international assistance. We have treaties with countries in the Commonwealth. For countries not in the Commonwealth, the procedure is different, this is what the court has said. That these countries where the government has made these requests to, it has not done due process, some of them do not even fall within the Commonwealth, so you cannot just wake up and make the requests that they have made.
By our law, our client, Ali Abacha, is entitled to his property which includes his money anywhere in the world. The Federal Government has alleged that the money is the proceed of corruption. To get to that stage, you have to show proof of the money being proceed of corruption and to arrive at that, you must go through what our law calls due process, there must be prosecution and conviction. It is at that stage that corruption is proved. So, not until that due process is concluded, anything that is done is still an allegation.
The question then is, can you on the basis on an allegation that has not been proven deprive one of his property? This is all that we have done. So, to the extent that, the government is trying to deprive them of their property without due process which is an infringement of their fundamental rights. Because by government’s action our clients have been deprived of access to their money, which is an infringement on their rights to life.
