Human rights lawyer, Mr. Femi Falana SAN, has written to the International Criminal Court, ICC, urging it to investigate the alleged diversion of the total sum of $8bn meant for the procurement of arms to fight Boko Haram insurgency in Nigeria.
He specifically requested the ICC to investigate what he termed allegations of crimes against humanity committed against the Nigerian people by former and serving military officials as well as public officials and private persons who were said to have diverted the money.
Falana, in the letter dated January 19, 2016 and addressed to the ICC prosecutor, Fatou Bensouda, also wants the court to bring to justice to “those suspected to bear full responsibility for deliberate under-funding of the armed forces through widespread and systematic corruption in Nigeria.”
He requested that representatives of the Nigerian government be invited to provide written or oral testimony at the sitting of the court, so that the prosecutor will be able to conclude on the basis of available information whether there is a reasonable basis for an investigation, and to submit a request to the Pre-Trial Chamber for authorization of investigation.
The rights activist further asked the ICC to urge the Nigerian government to fulfil its obligations under the Rome Statute to cooperate with the court, including complying with requests to arrest and surrender suspected perpetrators of the criminal diversion of security fund, testimony, and provide other support to the ICC.
The letter reads, “We are a firm of civil rights lawyers based in Lagos, Nigeria. We are the defence counsel for the majority of the members of the Armed Forces of the Republic of Nigeria who were charged with mutiny, cowardly behaviour and sundry offences before the courts-martial instituted by the former military authorities.
“As we shall demonstrate the only “offence” proved against our clients in the military courts was that they had the temerity to demand for weapons to fight the well-equipped troops of the Boko Haram sect.
“On account of the deliberate refusal of the former military authorities to equip and motivate the members of the armed forces involved in combat operations, the insurgents have killed about 25,000 soldiers and civilians, including children, and displaced over 2,000,000 people.
“Having compromised the security of the people of Nigeria by collaborating with the terrorists, the former military authorities deliberately encouraged the brutal killing of innocent people, including ill-equipped officers and soldiers.”
Falana recalled that it was during a visit to Borno State in 2014 that former President, Goodluck Jonathan revealed to some selected leaders of the community that it was when Alhaji Modu Ali Sheriff caused the extra judicial killing of the leader of the Boko Haram sect, Mohammed Yusuf, that the group declared war on the Nigerian people.
He lamented that even though President Jonathan knew that Alhaji Sheriff was a major sponsor of the terrorist group, the government did not charge him to court under the Terrorism Act applicable in Nigeria.
According to him, “In order to divert the attention of the Nigerian people and the international community from the afore-mentioned crimes against humanity, scores of soldiers were put on trial before courts-martial for demanding equipment to fight the well-armed members of the Boko Haram sect. The military courts convicted the soldiers and sentenced them to various terms of imprisonment while 70 were sentenced to death. Over 3,000 others were dismissed from the Nigerian Army in similar circumstances.
“Having investigated and confirmed that the said soldiers were sacrificed to cover up the criminal negligence of the former military authorities, the current Army leadership has ordered the recall and reinstatement of the 3,000 dismissed soldiers and commuted the death sentence of 66 out of 70 convicts on death row to 10 years’ imprisonment.”
Falana further stated that the inquiry conducted by the Presidential Panel on arms procurement had established that the bulk of the sum of $2.1 billion and N643 billion ($4 billion) earmarked for the purchase of military hardware to fight terrorism had been criminally diverted by the former government through the office of the National Security Adviser, Col. Sambo Dasuki (rtd).
“It has also been confirmed,” he wrote, “that the said Col. Dasuki colluded with some serving and retired military officers and civilians to divert the sum of $2 billion and N29 billion set aside for the procurement of fighter jets and other equipment for the Nigeria Air Force.
“As if that was not enough, the sum of $322 million and £5.5 million from the Abacha loot which was illegally transferred to Col. Dasuki by a former finance minister, Dr. Ngozi Okonjo-Iweala, for prosecuting the war on terror has also been criminally diverted. Part of the stolen fund was used to fund the campaign for the re-election of President Goodluck Jonathan in the 2015 general elections.
“Apart from diverting the fund for acquiring military equipment, some corrupt public officers also stole money set aside for acquiring the necessary gadgets and equipment for securing the Nigerian people. For instance, the $470 million contract awarded in 2009 for the installation of CCTV cameras in Abuja, the seat of the federal government, was poorly executed due to corrupt practices. Thus, the identification of terrorists who launched bomb attacks in public places in Abuja has been frustrated by the government officials who stole the contract sum.”
The lawyer noted that although the government of President Muhammadu Buhari had so far shown political will to fight corruption and recover stolen assets, he was of the opinion that an international investigation by the ICC from the perspective of crimes against humanity would complement the anti-corruption initiatives by the current government and contribute to ending a culture of impunity.
“We submit that substantial grounds exist to warrant the intervention of the prosecutor in this case. Under Article 30(2)(b) of the Rome Statute, a person has intent “in relation to a consequence, [where] that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
“We therefore submit that this is sufficient to hold Col Dasuki and others that have been indicted in the arms theft scandal responsible for crimes against humanity perpetrated against Nigerians. The failure of a former finance minister, Ngozi Okonjo-Iweala, to prevent widespread and systematic corruption including the re-looting of the Abacha loot amounts to complicity under the Rome Statute, and therefore fits the legal requirements of a crime against humanity,” he said.
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