Prosecution and recovery of the
proceeds of complex cross border
corruption cases
By Godwin Obla SAN, FCIArb
Held : April 30-May 2 2014
Venue: Gaborone, Botswana
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CONTENTS
 Introductory remarks
 Definition
 Graphic Illustrations
 Relevant laws
 Challenges
 Prospects
 Additional essentials of prosecuting cross-border corruption
 Conclusion
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Introductory remarks
In 2012 Nigeria was ranked no 139 on Transparency International’s
Perception Index.
“The primary basis of criminal jurisdiction is territorial …as
well, along with other types of protective measures ,states
increasingly exercise jurisdiction over criminal behaviour in
other states that has harmful consequences within their own
territory or jurisdiction” (L.A. FOREST -Justice of the Supreme
Court of Canada in LIBMAN (1985)2 DLR 4th174 at
178;(1986)L.R.C.(Crim) 86 at 90)
“Past is the era when almost the invariably preparation and
completion of a crime and the process of the criminal work
coincides in what place with that place being the most
harmed by its commission.” GUBBAY J.A. in S.V.M HARAPARA
(1986) L.R.C. (Conts).237.
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Introductory remarks
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 $480bn – $600bn 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.
Some recoveries have been made especially the Abacha ones.
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Definition
 Corruption is a complex social, political and economic phenomenon.


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(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. (http://www.unodc.org/unodc/corruption.html)
Corruption means bribery and related offences.(CPC ACT)
“Roberty Witgaard has summarized in the key ingredients of corruption in the
following simplified formula: Corruption= Monopoly + discretionAccountability! In other words, opportunity to engage in corruption increase
with the degree of control government officials and politicians have over
goods ,denies or other assets valued by the private sector and with the degree
of discretion the officials and politicians have in allocating those things”- “The
problem of corruption :A Tale of Two Countries” Kimberley Ann Elliot 18 NW. J. Int.. K and Bus. 524 19971998 at 525 quoting Robert Klitgaard- “controlling Corruption” 75(1988).
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Definition
 Cross-border corruption may be defined as corrupt practices, afflicting both the private
and public sectors, 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,
money laundering, misappropriation, mismanagement, 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
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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)8NWLR
(Part 1036)SC 332 at paras. A-B)
Relevant Laws

Relevant Laws In Nigeria:

Economic And Financial Crimes Commission (Establishment ) Act (EFCC Act) 2004.

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 AndTribunal Act C.15 LFN 2004
 Criminal Code Act, CAP41 LFN 2010
 Penal code Act, CAP . P3 LFN 2010
 Advance Fee Fraud and other Related Offences Act,CAP.A6 LFN 2010 et al

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Graphic Illustrations:
Some Nigerian Public Funds Corruptly dealt with
Amount ($)
between 1994-2014 Amount…
Joshua Dariye
50,816,000
Jolly Nyame
10,123,456
James Ibori
264,011,200
John Yesufu
235,802,469
Cecilia Ibru (pleaded guilty)
Chimaroke Nnamani (PEP)
243,000,000
DSP Alamieyesegha (PEP)
243,363,200
Lucky Igbinedion (pleaded guilty)
Tafa Balogun (pleaded guilty)
Sani Abacha
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1,300,000,000{P.S.}
154,559,500
150,000,000
8,410,000,000
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.See also : An investigation of the Financial Criminal Practices of the Elite in Developing Countries:
Evidence from nigeria ;Olatunde Julius Olusanya ( Journal of financial Crime- 2012)
Graphic Illustrations
 In the face of the daunting challenges inherent in successfully
prosecuting cross-border corruption in Nigeria through pure
litigation, settlement/plea-bargaining has been of immense
help in cases where individuals or corporate bodies are
indicted in corruption/money laundering cases. Four
ingredients of settlement/plea-bargaining include:
 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.
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Graphic Illustrations
• 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 fined in countries other than the
victim/affected countries.
 About $556 million was fined 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.
10
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
Graphic Illustrations
 Siemens AG (Telephony Infrastructure Contracts
bribe scheme)
 Bribe Offered: $22,000,000
 Money Paid in Fines: $50,000,000
 Julius Berger (Money Laundering)
 Amount laundered: $5,000,000
 Money paid in Fines: $29,000,000
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Source: Settlement database on sTAR. Available on http://www.star.worldbank.org
Graphic Illustrations
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
 Monetary Fine Paid: $6, 300,000
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Source: Settlement database on sTAR. Available on http://www.star.worldbank.org
Graphic Illustrations
 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 $170,000,000 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:
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Graphic Illustrations
 Technip- $30,000,000.00
 Snamprogetti Netherlands B.V. $32,500,000.00
 Japan Gas Company- $24, 385, 000
 Kellog-Brown (Halliburton)- $35,000,000
 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 $170,000,000.
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Source: Settlement database on sTAR. Available on http://www.star.worldbank.org
Graphic Illustrations
Amounts given as bribes/laundered compared with money
recovered via settlement
Chart Title
Bribe paid/Amount Laundered ($)
Monetary Fine Paid ($)
35,000,000
32,000,000 30,000,000
29,000,000
24,355,000
6,000,000 5,000,000 6,000,000 6,000,000 6,000,000
2,800,000
6,300,000
Source: Settlement database on sTAR. Available on http://www.star.worldbank.org
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Graphic Illustrations
 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.
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Cross-border corruption cases considered in
this discourse
 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, TRISTAR 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).
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Cross-border corruption cases considered in
this discourse
 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/297C/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 CONSORTIUM
 FRN v. JULIUS BERGER
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Challenges
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The Challenges can be found in both the Public and Private SectorsThere is an erroneous tendency to restrict it to the Public Sector .
Public- Sector see
General Sani Abacha
DSP Alamisyeseigha
Joshua Dariye et al
Private Sector-See:
Cecilia Ibru (Former CEO Oceanic Bank PLC)
Erastus Akingbola- London judgment (Former CEO Intercontinental
Bank PLC)
The character of the challenges and the prospect are not always
universal but influenced by the peculiarities of the individual
jurisdiction
Challenges
Lack Political Will on the Part of Government: “The incidence of
corruption in Nigeria has increased and is still increasing ;this
must be critically curtailed. This dream can only become a reality
if there is a change of heart under a new leadership by glaring
examples at all levels”.(Allison A. Ayida: ‘Rise and Fall of Nigeria’: Power
without corruption in Nigeria :...’1990, Chapter25 page 37.
•
“Concept of the untouchables”
Examples:TSKJ,Siemens,Julius Berger etc
FRN v. James Ibori
1)
2)
Root of Crime in Foreign Jurisdiction: Arising from bribery of local
public officials by Corporations from outside jurisdiction with minimum
local presence. Example: SIEMENS In Nigeria,TSKJ - Jeffrey Tessler and Jack
“Albert” Stanley. See “Combating transnational crime in Africa: Problems and Prospects”-John Hatchard (Journal of
African Law-2006)
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Challenges
3)
a)
b)
c)
d)
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Weak Mutual Legal Assistance Regimes: This may arise from the following
situations:
Location of the Evidence in the Criminal case in foreign jurisdiction- SIEMENS,TSKJ
Difficulty and in some cases unwillingness of witness outside jurisdiction to return for
the trial-SIEMENS , PANALPINA
Illicit proceeds moved and laundered in an international Banking system.(John
Hatchard-supra)TSKJ
Slowness of the MLA process:
“ as well known , the main weakness of mutual assistance in penal matters as a tool
for assets tracing and recovery is its slowness. Even in the most cooperative
jurisdiction s, it takes atleast one year until the documentary evidence relating to
transfer of the proceeds of crime is transmitted to the requesting authority. In most
cases, it is then too late to trace the assets to other jurisdiction in time to freeze
them.”: ENRICO MONFRINI“The Abacha case” published in “RECOVERY STOLEN
ASSETS”(Mark Pieth ed Peter Lang,Bern,2008)
Challenges
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4)
Immunity against prosecution for Categories of Politically Exposed
Persons: Section 308 of the Constitution of the 1999 Constitution of the Federal
Republic of Nigeria – Section 308(1) of the 1999 Constitution puts restrictions on
legal proceedings, arrest or imprisonment, or the compelling of appearance by
process of court, against the Presidents, Vice-president
and the Governors.
FAWEHINMI V. I.G.P. (2002) 7NWLR (Pt. 767)606,DSP ALAMIEYESEIGHA V.
FRN (2006) 16 NWLR(Pt. 1004)
5)
The legal infrastructure and the slow and laborious judicial process
:Accused persons and Counsel take advantage of every conceivable technical
loopholes to prolong the prosecution subjecting the appellate process to abuse even
in interlocutory matters thereby frustrating the entire process. “I have to put it on
record that the desire of the judiciary to curb the now notorious
attitude of some legal practitioners and politicians faced with very bad
cases to employ delay tactics to either defeat the ends of justice or
postpone the evil days , needs the encouragement of all well meaning
legal practitioners, particularly the very senior members of the
profession.(Per ONNOGHEN,JSC in DAPIANLONG V. DARIYE (2007)8NWLR (Part 1036)332 at 415 -416,parasG-D)
Challenges
6)
Legislative Inertia: Non passage of the “ Non-Conviction
based asset Confiscation” by the Nigerian National
Assembly.
“The power of confiscation allows police to confiscate
money and assets without having to prove any criminality .
The police could apply to civil courts to seize cash ,cars,
yachts, even houses, and hand them over to the treasury
merely on the suspicion that they are proceeds of crime.
The test would be on the balance of probability”(civil
standard) and not beyond “beyond reasonable doubt”
(criminal standard)
–see Nigeria :Confiscation of the Proceeds of Corruption; by
Taiwo O. Olaleye-Orueme-Journal of financial Crime 2000.
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Challenges
7)
Lack of respect for rule of law:
“I wish to observe that our country cannot develop
politically and economically unless we respect the rule
of law .Where the Constitution is torn into shreds by
the action or inactions of those who are charged with the
responsibility of upholding it , the net result is that a
culture of lawlessness is sowed into the psyche of the
people. The ends does not always justify the means”Per
Akaahs,J.C.A in the case of Dapianlong v. Dariye
(2007)8NWLR (Part 1036)239 at 330 paras. F-G.
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Challenges
Threat to lives of witnesses and absence of protective
programme
 Not less than 19 key officers of EFCC have been
assassinated, as at 2013.(EFCC Report{S.A.E.} 2013)
8)
9)
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Undue reliance on technicality to knock out vital electronically
generated evidence during trial of the accused in respect of
cross border corruption.
Challenges
10) Ad-hoc Investigative Panels: They are a strange contraption in
The fall out after they are disbanded or assignment is
completed. Follow up by the prosecution in grey areas of
challenge becomes difficult. Nobody is in charge and
traditional agencies of investigation disclaim obligation or
ownership of the process .
11) Acts of Sabotage including compromise on the part of officials,
law enforcement agencies and judicial officers to frustrate
prosecution.
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Challenges
12) Inefficient transnational crime/corruption monitoring
networking system especially in Africa. For instance,
Interpol’s network bureaus are less utilised in Africa.
13) Efficient use of monitoring networking system especially
in Africa. Example: The Interpol’s network of National
Central Bureaus and their supporting secure
communication system.
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Challenges
14) Inadequate resources : High cost of retaining the requisite team
of experts for the prosecution of persons accused of
committing cross-border corruption.
15) Instability and indiscriminate changes in government policy vis-
a-vis anti-corruption agencies. For instance, subordination of
anti-corruption commissions to Executive arm.
16) Undue political office holders’ interference with the anti-graft
agencies should be stopped and independence ensured by
relevant legislation. Tenure of office of officers of anti-graft
agencies should not be at the whims and caprices of the
Executive arm alone.
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Challenges
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 resist cooperation.
17)
 The United states government initially 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.
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Prospect
1.

Strong Political Will to prosecute must be unequivocally exercised. “The incidence
of corruption in Nigeria has increased and is still increasing ;this must
be critically curtailed. This dream can only become a reality if there is a
change of heart under a new leadership by glaring examples at all
levels”.(Allison A. Ayida: ‘Rise and Fall of Nigeria’: Power without corruption in
Nigeria :...’1990, Chapter25 page 37.)
The authorities mouth their commitment .We hope it comes to pass.
TSKJ started in 1994/2004 –when did U.S. Prosecute?
 The Plea-Bargaining/settlement came two weeks after Nigeria indicted
nine people and nine entities, including Halliburton and Dick Cheney, the
former Halliburton Chief Executive and U.S. Vice President for alleged
bribery. The Charges were dropped after a settlement was reached.(See
www/.vanguardngr.com/2012/11/halliburton-how-millions-of-dollars-bribe-money-werewired/sthash.oQw6L!6q.dpuf)
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Prospect
Take advantage of Article 5 of UNCAL- or the duty o
confiscate and repatriate proceeds of transnational crime,
the HARARE SCHEME and other existing protocols.
3) Diligently adhere to the report of the commonwealth
working group or Asset Repatriation (The working Group)
which examined the best practice relating to asset
tracking, recovery and repatriation taking into account
Article 57 of UNCAL .
4) Remove the immunity clause as it relates to changes of
corruption as recommended by the Commonwealth
working group 2005. Hopefully the on going conference
will address this.
2)
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Prospect
More priority should be placed on substantial justice over
technicalities.
 “Finally, if the Nigerian Nation has taken a decision to
fight and eradicate corruption , legal technicalities should
not constitute road block to that effect .For the essence of
law is to preserve , and protect the economic, political and
social well being of the State and citizenry. Any
interpretation ascribed to any statute that fails to
conform to this value must be ignored since that will
suggest enthronement of anarchy. [Per Galinje,J.C.A. at
page 500, paras. A-F;F.R.N v. FANI KAYODE (2010) 14
NWLR(Pt.1214)281 ]
5)
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Prospect
6)




33
Prospect on new the Practice Direction. The introductory part of the
FHC new practice direction states: “This Practice Direction is
intended to fast track the criminal trials in the court and
to ensure that delays in criminals trials are largely
eliminated". The Practice Direction shall to Terrorism , Kidnapping
,Trafficking in persons, rape , corruption and money laundering.
The Federal High Court Practice Direction 2013, Court of Appeal
Practice Direction 2013, and the Supreme Court Practice Direction
2013 are designed to, among other things;
minimize the time spent on trials,
ensure possibility of settlement is explored before hearing,
ensure hearing is not unnecessarily stalled,
and minimized undue adjournments and delays.(Section 2
(b) of the FHC Practice direction 2013)
Prospect
34
7)
The prosecutorial Challenges the government face, are being
addressed by the hiring of senior and experienced counsel from
the private sector to drive prosecution involving serious cases
.E.g. Central Bank of Nigeria in Cooperation with the EFCC
retained formidable legal teams to prosecute the Banking crises
suspects while the Federal Government of Nigeria outsourced
the TSKJ, Siemens, Julius Berger and related prosecutions
8)
The passage of the Freedom of Information Act 2011 and the
Proactive Judicial disposition towards the Acts has assisted
Civil Society Organizations to garner information which they
act upon.
Prospect
9)
•
•
•
•
•
•
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Accountability and transparency: Relevant laws enacted in
Nigeria to enhance accountability and transparency
include;
2007 Nigeria Extractive Industry Transparency Initiative
(NEITI) Act;
2007 Public Procurement Act.
2007 Federal Inland Revenue Service (FIRS) Act.
2007 Central Bank of Nigeria (CBN) Act.
2007 Statistics Act;
The Fiscal Responsibility, Act,2007.
Prospect
10) The creation of
united front against cross-border
corruption in Africa has been of help. The African
Convention on Prevention and Combating Corruption was
adopted in Maputo on 11 July 2003 to fight the rampart
political corruption on the African continent. The
Organisation has 35 members as at 2014.
36
Prospect
11) Establishing effective central authorities to monitor and
assess, on a regular basis, intra and transnational data base
reports and transactions of politically exposed persons.
 Updating data from investigations
 Interfacing with relevant agencies worldwide
 Use of data available worldwide more frequently and
efficiently
37
Additional essentials of prosecuting crossborder corruption effectively include:
 Sincerity
 Transnational cooperation and understanding
 Formidable anti-graft structure.
 Experts’ active participation
 Availability of funds for prosecution
38
CONCLUSION
 The fight against cross-border corruption is an uphill task
.All hands must be on desk to eliminate the malaise. Thank
you
39