1. Prosecution and recovery of the proceeds of complex cross border corruption cases
By Godwin Obla SAN, FCIArb
Held : April 30-May
Venue: Gaborone, Botswana

2. CONTENTS Introductory remarks Definition Graphic Illustrations
Relevant laws
Challenges
Prospects
Additional essentials of prosecuting cross-border corruption
Conclusion

3. 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.

4. 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.

5. Definition
Corruption is a complex social, political and economic phenomenon. (
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. (
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 + discretion- Accountability! 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 at 525 quoting Robert Klitgaard- “controlling Corruption” 75(1988).

6. 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 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)

7. 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 And Tribunal 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 et al

8. Graphic Illustrations: Some Nigerian Public Funds Corruptly dealt with between 1994-2014
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)

9. 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.

10. 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.
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

11. 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
Source: Settlement database on sTAR. Available on

12. 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
Source: Settlement database on sTAR. Available on

13. 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:

14. 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.
Source: Settlement database on sTAR. Available on

15. Graphic Illustrations Amounts given as bribes/laundered compared with money recovered via settlement
Source: Settlement database on sTAR. Available on

16. 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.

17. 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, TRI- STAR 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).

18. 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

19. Challenges
The Challenges can be found in both the Public and Private Sectors- There 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

20. 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
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)

21. Challenges
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)

22. Challenges
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)
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 ,parasG-D)

23. Challenges
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.

24. Challenges
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.

25. 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)
Undue reliance on technicality to knock out vital electronically generated evidence during trial of the accused in respect of cross border corruption.

26. Challenges
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 .
Acts of Sabotage including compromise on the part of officials, law enforcement agencies and judicial officers to frustrate prosecution.

27. Challenges
Inefficient transnational crime/corruption monitoring networking system especially in Africa. For instance, Interpol’s network bureaus are less utilised in Africa.
Efficient use of monitoring networking system especially in Africa. Example: The Interpol’s network of National Central Bureaus and their supporting secure communication system.

28. Challenges
Inadequate resources : High cost of retaining the requisite team of experts for the prosecution of persons accused of committing cross-border corruption.
Instability and indiscriminate changes in government policy vis- a-vis anti-corruption agencies. For instance, subordination of anti-corruption commissions to Executive arm.
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.

29. 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.
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.

30. Prospect
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-were- wired/sthash.oQw6L!6q.dpuf)

31. 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.
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 .
Remove the immunity clause as it relates to changes of corruption as recommended by the Commonwealth working group Hopefully the on going conference will address this.

32. 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 ]

33. Prospect
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 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)

34. Prospect
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
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.

35. Prospect
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.

36. Prospect
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

37. Prospect
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

38. Additional essentials of prosecuting cross-border corruption effectively include:
Sincerity
Transnational cooperation and understanding
Formidable anti-graft structure.
Experts’ active participation
Availability of funds for prosecution

39. CONCLUSION
The fight against cross-border corruption is an uphill task .All hands must be on desk to eliminate the malaise. Thank you