By Nehru Odeh

                                                                                  The Attorney General and Minister of Justice, Abubakar Malami is a master of controversy. He has a penchant for stirring up one when occasion demands. Since he assumed office in 2015, he has been embroiled in one controversy or the other. He also has an uncanny way of justifying his actions whenever he kick-starts one, making it look as if has taken the right step. However, this time he has made another controversial move, which many believe is wrong and has elicited a legion of reactions and criticisms.

After the United Kingdom had signed a Memorandum of Understanding, MoU, with the  federal government to return the £4.2 million loot recovered from James Ibori, former governor of Delta State and his associates., Malami stirred the hornets  nests when he said the money will be appropriated by the federal government and used to finance  the Second Niger Bridge, Lagos-Ibadan expressway and the Abuja –Kano road.

Malami defended his decision in a television interview, saying the recovered loot is a function of law and international diplomacy. According to him, since it is the federal government that was involved in its recovery process, that makes it the victim of crime and not subnational.

“The major consideration relating to who is entitled to a fraction or perhaps the money in its entirety is a function of law and international diplomacy, he said.

 He also argued that the law that Ibori breached was a federal law, adding that the parties of interest involved in the recovery of the funds – the United Kingdom and Nigeria – were national and not sub-national governments.

“All the processes associated with the recovery were consummated by the Federal Government and the Federal Government is, indeed, the victim of crime and not sub-national,” he said.

However, Malami’s statement does not sit well with many Nigerian and has generated a lot of reactions and criticisms.  Human rights lawyer, Femi Falana, SAN, was unequivocal in stating that the loot belonged to Delta State and not the federal government. Falana, in a statement, said: “The £4.2m does not belong to the Federal Government. The money confiscated from Governor Joshua Dariye in the UK was recovered by the Federal Government, repatriated to Nigeria and returned to the Plateau State Government.

“The money confiscated from Governor Diepreye Alamieyesigha in the UK was recovered by the Federal Government, repatriated to Nigeria and remitted to the account of Bayelsa State Government. Since what is sauce for the goose is sauce for the gander, the sum of £4.2 million confiscated from ex-Governor James Ibori in the UK and recovered by the Federal Government has to be remitted to the account of the Delta State Government.”

Speaking on national television on Wednesday, Falana also said since the loot was taken out of the coffers of Delta State the federal government has no locus standi to decide how the recoverd loot is spent.

 “As the honourable attorney-general had said, the money is over £100 million. What has been released now is the first tranche of £4.2 million. Since the money left the coffers of the Delta state government, it has to be returned once this fund is recovered.

“The federal government has no locus standi with respect to how the money is spent. That is left for the people of Delta state to monitor the government of that state to ensure that the fund is not relooted.

“In fact, the memorandum of understanding referred to by the attorney-general signed in London, smacks of colonialism. Britain cannot decide on how recovered loot should be spent.

“What I expect the attorney-general or the federal government — in the circumstance — is to collaborate with the Delta state government to ensure that the banks that housed the looted wealth of Delta state or the banks involved, are made to pay collosal damages and interests for denying the people of Delta state the opportunity to use the money for development.”

Professor Itse Sagay, Chairman of the Presidential Committee Against Corruption (PACAC), has also lent his voice against the appropriation of Ibori loot. The legal luminary said it is unacceptable that the funds will be used to fund projects outside the state where it was taken from.

“The money came from Delta state. Naturally, it must go back to Delta state. I know the basis of the federal government argument. It is not just about the MoU. There is a provision in the EFCC Act which says all monies recovered should go to the federal government.

“I think they may want to rely on this. However, that law is void because a law cannot be based on transferring the assets belonging to one person to another. My advice is for the federal government to ask the Delta state government to nominate projects they want to undertake and then money would be released for the projects.

“The Ibori money being used for Lagos-Ibadan expressway and others is unacceptable. You cannot use money from Delta State to fix projects in other places. The Federal Government can also use the money to fund its many projects in Delta State like the Benin-Warri road and many others.”

The House of Representatives has also ordered the Federal Government to shelve the idea of spending the recovered the loot on federal projects and ensure that the money is handed over to Delta State. This was the resolution reached after 10 lawmakers from Delta State jointly sponsored a motion of urgent public importance at the plenary presided by the Deputy Speaker Ahmed Wase.

The lawmakers insisted that since the funds were stolen from Delta State, it should be returned to the state, adding that they are needed for the infrastructural development of the state. The House then urged the Federal Ministry of Finance to stop further appropriation of the recovered looted fund pending the final determination of the matter by the House.

However, other Nigerians are in support of the move of the federal government to appropriate the funds and deploy it to fund federal projects. They hinge their stance on the fact that since the Delta Stae government had earlier denied such funds were missing, it has no moral right to demand for it.  They also doubt if the money would not be looted  again or released to Ibori – since he still weilds enormous powers and influence in the state – if it is returned to the state.

Still, many are of the belief that morality does not come in here. They are also of the view that sometimes morality is not the same as justice and fairness. Since the funds were taken from Delta State, justice demands that it should be returned to it. However, using morality to justify the appropriation is out of place because it was Ibori who committed the crime and was convicted, not Delta State.  In this sense appropriating the funds is tantamount to punishing the sons for the sins of the fathers. Why punish Delta State for the sins Ibori committed? they ask.

 It is on this basis that the League of Professionals for Strategic Advocacy, a non-governmental organization, picked holes in Malami’s submission that since the federal government completed the recovery process it has the moral right to appropriate the funds.  The group is a joint statement by Prince Obaro Unuafe and Pius Mordi, convener and chairman, yesterday, at Asaba, said that submission was an erroneous interpretation of the law.

 “The attorney general’s unilateral action is illegal, immoral and a blatant attempt at appropriating the commonwealth of the people of Delta State. Justifying his decision, Malami claimed that the law that was violated by Ibori was a federal law. According to him, the parties of interests involved in the repatriation of the funds were national and not sub-national governments.

“The attorney general’s contention that the Federal Government is the victim of the crime, not Delta State, simply because the processes associated with the recovery were consummated by the Federal Government is a dubious interpretation of the law.

“By choosing to personally announce the grabbing by Aso Rock of the money about to be repatriated, Mr Malami sought to give the action a veneer of legality. He is wrong.

“Firstly, there is no discernible legal basis for his stance. As a sub-national government, Delta State could not have entered negotiations with Great Britain, a sovereign state. Only the Federal Government can negotiate with another sovereign state. In effect, Malami’s argument that since ‘the processes associated with the recovery were consummated by the Federal Government’, then it becomes a victim of crime is duplicitous, dubious and amounts to double jeopardy for the people of Delta State.

“Secondly, there is precedence where recovered looted funds were returned to the state that was the actual victim of the crime. In 2012, the Federal Government recovered over £5million stolen by late Bayelsa State Governor, Dieprieye Alamieyeseigha, from Britain and handed it back to the state government.

“This same principle should apply to the indication from Malami that another £100million may be repatriated when Chief Ibori’s landed property in Britain are disposed of. The proceeds belong to Delta State, the real victim of the crime.

“We consider Malami’s action a brazen effort at appropriating what rightfully belongs to the people of Delta State. We are vehemently opposed to this ill-advised action of the attorney general. “

However, no matter the sides of the divide one belongs regarding this issue, the truth is, how it is handled will have far-reaching implications on the geo-political entity called Nigeria and call into question the skewed federal structure, in which the centre wields so much power and throws its weight aound. This issue has indeed brought to the fore the clamour for true federalism.

If the federal government goes ahead to appropriate the looted funds and spend it on federal projects, then it will lend credence to the fact that the states, under this present federal structure, are not only short-changed but also deprived of their inalienable rights. That is the more reason true federalism is the only way out of the contradictions inherent in the one-sidedness of the kind of spurious federalism that this country practices.

And just as the League of Professionals for Strategic Advocacy submitted, “as a sub-national government, Delta State could not have entered negotiations with Great Britain, a sovereign state. Only the Federal Government can negotiate with another sovereign state,” it behoves on the federal government to represent Delta State, protect its interests and act on its behalf  rather than behave as if it and the state are enemies and have divergent purposes and interests. The federal government, it seems, is bent on punishing Delta State for the crimes Ibori committed, which is unfair and smacks of injustice,

It is high time, many believe, that the centre stopped playing the policeman, judge and executioner of the geo-political entity called Nigeria, believing self-righteously that it has the sole power to mete out punishment to erring states and dole out cash rewards to “deserving” ones. At no better time than this has it thrown up the national question, thus making the present federal structure to be called into question once again. As a result, the federal government needs to act cautiously and return the funds to Delta State.

And if it doubts the funds will be used wisely, it should set up a monitoring committee to administer the funds in the state. That is a justiciable and justifiable thing to do.