Nigeria needs dynamic approach on looted funds repatriation – Mustapha
Abdulhakeem Uthman Mustapha (SAN), an expert on international business law, in this interview, speaks on the issues surrounding repatriation of looted funds, cost of nonimplementation of contracts and arbitration in Nigeria. Excerpts:
Despite the relative goodwill enjoyed by President Muhammadu Buhari with several world leaders, repatriation of looted funds remains a challenge. What are the issues?
We need to understand something very well. The western world in open day light will talk about egalitarian society but at night it is a different thing altogether. There are so many impediments to the repatriation of these monies, and it boils down to this; the resources are being used to develop their own countries. If eventually it passes through the gamut of their procedures, they still take a huge chunk of it to themselves. So, we need to understand that they are reluctant to release these monies, so, we need new thinking. We need new ideas.
Despite the agreement with the Abacha family under President Obasanjo administration, we are still yet to recover all the money. Corruption really fights back. So, we need to be dynamic in our approach and we need to be realistic and practical. Do we want to punish the individual or do we want our common wealth back so we can plug it to critical sectors that are in need of the resources? These are the things we need to look at.
To underscore the point that these countries are reluctant to release these loots, I remember there was a time that the Swiss government was asking what we wanted to do with the money, even after we have passed the gamut of procedures for the repatriation. That was an insult.
Aside political means of seeking the repatriation, are there legal ways to go about it?
The agreement is one thing, but the actual implementation is another thing. If the will of that government is not there to see to the letter of the agreement, it is as good as nothing. Without the practical aspect of it being put in place, you can be sure that they can manoeuvre the agreement from time to time to ensure that the money is retained there.
So, it boils down to the fact that we should fight corruption by even making it difficult if not impossible for people to launder our money abroad. That should be the starting point. We don’t have control over what the foreign countries will do with that money but we have control on how this money will not go out of our country.
We have to know that there is a difference between fighting corruption and fighting corrupt people. Fighting corruption will mean looking at what are the weaknesses and leakages in the system and how can we plug or block that. Fighting corrupt people is picking someone up, checking his resources and collecting the money. The two are important, but the one that is more important is fighting corruption. Fighting corruption will mean that you put some structures in place. You institutionalise some procedures that will prevent future infractions. In this area, government has to improve drastically. Just like any other system, it can get better. So far, relatively government is doing its bit. Unlike then, there is no much impunity. If you are in government now and you want to do anything nonsensical, you have to be very careful, because the thought that a Magu will come and pounce on you is enough deterrence for you to be careful.
What does the recent court ruling as regards former Minister of Petroleum, Diezani Madueke, imply for the anti-corruption campaign?
I don’t know the full facts of the circumstance that led to her name being struck out, but I believe that the prerogative of who and who not to prosecute, when and where to withdraw the charges, rest with the state. If, in their considered opinion, they feel they have more evidence in the UK than in Nigeria to arraign and prosecute the offender, all well and good. But the role of the prosecutor is to present the facts before the court. The conviction or otherwise is for the court to do.
The thing about criminal prosecution is that it is not just about punishing the person involved; it is deterrence for potential culprits to know that their behaviours are not acceptable in the society and if they do it, there are consequences for it.
What are the costs of non-implementation of contracts by local partners and governments in Nigeria in international business deals?
It is a various obvious thing which is about integrity. If you sign a contract, and you don’t obey it, it has profound effect. It will make you to be an irresponsible country and other potential investors, agencies or governments will be reluctant to do so. This takes away a lot of resources from the country and that is why countries like Rwanda are coming up because they have entrenched institutions and their system is coming up and working.
So, we need to keep to our words as individuals, corporate bodies and as a state. Before reaching an agreement, we should make sure our interest is preserved and protected. The moment we sign an agreement, it is important we abide by its terms.
Recently, the National Bureau of Statistics (NBS) released a report that the Nigerian judiciary and police are the most corrupt or receive bribes the most. What impact does this have on our business relation with international countries?
In the first instance, this corruption in the judiciary is a case of one apple spoiling the whole basket. The bulk of Nigerian judges are hardworking and are not corrupt, but there are few individuals to the exception and that happens in every society, everybody cannot think the same way. But the judiciary has an internal mechanism of cleansing and removing this kind of people, even though it is not enough.
Like I said, if we want to fight corruption, we should not expect the court to look for evidence to convict an accused person; it is the responsibility of another. If there is corruption in the system, it should be investigated and anybody that is found guilty should face the music. The judges don’t have immunity. So, it boils down to the fact that the state must do its investigation, not ‘sting operation’.
But we should understand something, the prosecutors, the judge and the defence counsels are all lawyers. So, it will be wrong to look at it parochially that the judiciary is corrupt. Even those who present the cases in courts are lawyers. So, the contribution of lawyers in fighting corruption is very profound.
To what extent do courts support or disrupt arbitration in Nigeria?
The courts encourage amicable settlements. A lot of chief judges are encouraging arbitration and even mediation and conciliation. It is something that is embedded in our legal system.
The problem is in the enforcement of awards and we need to look at that, because the moment the award is given, the person it is against will head straight to the court to challenge it. I know of some banks these days that no longer put arbitration clause in their agreements because they feel instead of saving time; it is even compounding the problem. So, we need a legislation or procedure that will make award final.