Governor Emmanuel Uduaghan And The Queen Of England
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The Ijaw, like the Itsekiri, the Isoko, the Urhobo, the Aniocha and the Ika-Ibo people of Delta State may pay a higher price than the infamy of having twice elected a thief and ex-convict as their State Governor. For now, they have something else severe to deal
with. By a thorough-going conspiracy since 2007, their elected State Assembly legislators acting in concert with Governor Emmanuel Uduaghan and his own appointed Commissioners, have refused to conduct and present a State audit to reveal the shortfalls in Delta state revenues up to the amount of $250 million dollars proved to have been stolen and liable to forfeiture sequel to James Ibori's guilty plea and conviction in the English Court.
'No money is missing here in Delta State', the Delta State House of Assembly had said via a House resolution passed in 2008 and based on neither anecdotal evidence nor any accounting investigation of facts. Tellingly though, on that legislative stance, the government of Her Majesty the Queen of England is not bound to consider a repatriation of the forfeited funds to Delta State.
And that is where this corruptive jeopardy will most particularly hit the majority slum settlements of the people of Delta State who, though educated for the most part, still cannot see the wood for the trees, to force their State government to do the needful and open up the State revenue and expenditure books in the circumstances.
As yet, the federal government is the only one making the vicarious case for the Delta State people but even at that, the federal claim is itself attenuated by the Delta State government's counter-intuitive stance that its revenues and assets are not missing at all.
In this on-going corruption messiness, there's only little the Nigeria's Economic and Financial Crimes Commission [EFCC] can do of its own under the Merida Convention Against Corruption, if Governor Emmanuel Uduaghan is determined to cover up his former boss - a distant cousin - by refusing to conduct a state audit spanning 1999-2007.
For sure, it is not too hard to sense Governor Uduaghan's own self-interest in refusing to disclose anything so far, since he was himself a Commissioner under James Ibori.
Investigating one's own financial scams as a result of 'collective responsibility' is typically difficult but that is no reason to gift $250 million to the United Kingdom Treasury - 51 years after British colonial rule.
Convicting James Ibori along with his wife, mistress and lawyer is one thing. Recovering his stolen funds is quite another. On the latter, there is simply no progress as yet, because Governor Emmanuel Uduaghan resolves to keep mum.
Never in history has there been this overlap of a plea of guilt to the theft of someone's property and a denial of loss of funds by the person admitted to have been duped. Once again, Nigeria's thievish politics presents the world with an un-precedented conundrum that's not easy to solve, even after James Ibori goes to jail.
Nigeria's EFCC doubtless has legal standing under the Merida Convention - as the authority designated on overseas matters of corruption in Nigeria - but its legal standing to liaise with foreign crime units falls short of crystallising into a derivative ownership power over the funds stolen by Nigerians and domiciled overseas - without the EFCC firstly showing clear and convincing evidence that a definite person or entity owned the entirety of the forfeited funds.
Nothing in the Proceeds of Crimes Act in England authorises the Crown Courts to make a repatriation order in cash of all assets impounded in infringement of that law. So, for the EFCC to make repatriation claims, Delta State must firstly conduct an investigative audit and produce the shortfall results to match the forfeited funds.
If Delta State under Governor Emmanuel Uduaghan refuses to do so, and Uduaghan retains constitutional immunity from prosecution whilst taking that adamant stance, all the assets to be forfeited by James Ibori at the next hearing shall be forfeited to the Treasury of the United Kingdom - with neither Delta State nor Nigeria having legal right(s) to request for a subsequent repatriation of it.
Here, as always, corruption not only diminishes Nigeria, but costs its pauperized people dearly.
Perhaps it was to salve angry and wounded consciences that the EFCC; a few days ago, said it would hurriedly investigate, arrest and prosecute James Ibori's associates following Ibori's plea of guilt in the English Court.
In the ranking of James Ibori's associates however, Emmanuel Uduaghan comes tops; ahead of all other nominees James Ibori planted for corruptive use in several commercial banks in Nigeria, to handle wire transfers. Emmanuel Uduaghan also ranks ahead of a phalanx of lawyers and accountants that James Ibori hired to utter tomes of bogus legal assignments between 1999 and 2007.
Indeed, as Ibori's former Commissioner; and a trusted confidant to whom he virtually wangled the successive post of Governor - following a shambolic primary election, Governor Emmanuel Uduaghan now holds the aces to uncovering yet un-detected assets of James Ibori.
Uduaghan is also best-placed to make the tracing of those assets easier in Nigeria; and to help EFCC finger-point all other assets temporarily registered overseas in the names of Ibori's nominees on the implicit agreement of a re-transfer to James Ibori.
Unless the assets of all these associates and nominees are known, James Ibori's stolen assets can never be fully un-covered, despite the best efforts of the London Metropolitan Police so far.
But what Emmanuel Uduaghan knows, and when he knew it, are still shielded from all public authorities by the aiding and abetting legal clause in Nigeria's 1999 Constitution - called immunity - despite the nigh-ridiculous dicta of Nigeria's Supreme Court that notwithstanding constitutional immunity, Police investigation may be done simultaneously with the immunity clause, but without ever infringing it by any arrest of the immunized.
'There is simply no intellectual content in the reasoning of Nigerian Courts', Nigeria's current Chief Justice, Dahiru Musdapher plaintively cried to the public last October, but he then quickly merited a titter by setting up a 28-member committee of lawyers in the last quarter of 2011 to do the impossible task of recommending legal solutions to Judges' mental retardation.
Whilst Nigeria messed up all legal reasoning on James Ibori's case, Britain is set to profit from it. By law, any repatriation following a conviction under the Proceeds of Crimes Act in the U.K requires a separate showing at a separate proceeding at which legal ownership of the forfeited property must be proved.
Nigeria's thievish politics now robs the country of that wiggle room to present any audit evidence to reclaim the $250million to be forfeited - which represents the total foreign earnings of the Republic of Liberia in 2004.
That's why there's hardly anything approximating law in Nigeria - so long as judicial interpretation of laws ever hardly makes sense in Nigeria, when juxtaposed with the adjudicated facts.
Last October's jeremiad by the Chief Justice of Nigeria (Dahiru Mudapher) on this point has retrospectively become a mere tear or two shed in self-pity, once his 28-member Committee wound up with nothing to show for the fees and the victuals incurred as expenses in the performance of their forlorn tasks.
For years now, and despite the EFCC securing about 500 convictions on low profile cases in the past five years, Nigerian Courts are assuming international infamy as Courts of Criminal Acquittals rather than Courts of Justice.
In truth, no one need be a lawyer or a Judge to reason inductively from the burden of proof legalized in Nigeria's anti-corruption law that no 'predicate offences' need be proved in holding any man or woman living above his income to account, as stated in the EFCC Act.
But there Nigerians were; in collectively astonishment beyond grief, watching as Judge Marcel Awokulehin declared in open court, and likely with induced confidence for extraversion, that a predicate offence must firstly be charged and proved notwithstanding that James Ibori could not have legally owned or otherwise lawfully acquired the assets stated in the (likely) defective charge-sheet.
In effect, what Judge Awokulehin meant is that James Ibori should take the assets free and enjoy them, since the charge sheet against him did not state the predicate offences of where he stole the money to acquire those assets.
Without a doubt, Judge Awokulehin's declaration is no law - not even a pretence to it, because it deters nothing and remedies nothing, or does it even aim to teach any didactic lesson, or set public policy standard needed to guide future conduct of public affairs. For all that, and much else besides, Judge Awokulehin's declaration fulfilled no function of criminal laws.
But now that James Ibori has pleaded guilty to money-laundering, uttering, and wire-fraud in England, it is for Judge Marcel Awokulehin to continually seek self-exoneration from a set of impossible facts - if he slinks introspectively in his chambers to watch James Ibori on cable teevee facing a maximum 14-years jail term under the Proceeds of Crimes Act of England, as result of Ibori's prior fugitive conduct before his eventual extradition proceedings in Dubai.
Seyi Olu Awofeso is a Legal Practitioner in Nigeria