Eze Onyekpere
The Nigerian constitution of 1999 is called the Constitution of the Federal Republic of Nigeria 1999. The relevant word for the purpose of this discourse is the word “federal” which recognises the various tiers of government that make up the federation. The constitution provides for the distribution of powers and separate management of financial and other resources among the tiers of government. However, recent events in the recovery of looted assets, especially judicial decisions have thrown up challenges and issues which question the federal structure and call for deep reflection on the justice and propriety of the decisions.
By Section 162 (1) of the Constitution, “The Federation shall maintain a special account to be called ‘the Federation Account’ into which shall be paid all revenues collected by the Government of the Federation, except the proceeds from the personal income tax of the personnel of the armed forces of the Federation, the Nigeria Police Force, the Ministry or department of government charged with responsibility for Foreign Affairs and the residents of the Federal Capital Territory, Abuja”. This is the distributable pool accounts from which the federal, state and local governments get their allocations. It belongs to every government structure in Nigeria. Thereafter, the constitution in Section 80 (1) states that: “All revenues or other moneys raised or received by the Federation (not being revenues or other moneys payable under this Constitution or any Act of the National Assembly into any other public fund of the Federation established for a specific purpose) shall be paid into and form one Consolidated Revenue Fund of the Federation”. This is the Consolidated Revenue Fund of the Federal Government from which it runs its fiscal affairs. Again in Section 120, the constitution declares that: “All revenues or other moneys raised or received by a State (not being revenues or other moneys payable under this Constitution or any Law of a House of Assembly into any other public fund of the State established for a specific purpose) shall be paid into and form one Consolidated Revenue Fund of the State”. This is the Consolidated Revenue Fund of the state from which a state runs its fiscal affairs.
Thus, this discourse has established the functioning of an account from which all tiers of government share and the accounts to which the Federal Government and states run their separate affairs. So, if federation revenue is shared among the federal and various state and local governments, federal money is strictly for the Federal Government while the shares of the states and local governments strictly belong to them. Beyond the resources shared from the federation account, state and local governments generate internal revenues which are strictly theirs to spend as they form part of the resources of the states.
Fast forward to the war against corruption and recovery of looted assets, the Federal Government under the laws setting up the Economic and Financial Crimes Commission and the Independent Corrupt Practices and other Related Offences Commission exercises jurisdiction to investigate and prosecute corrupt acts perpetrated at the federal, state and local government levels. This power has been tested and confirmed before the Supreme Court. Recall that Section 150 (1) establishes the office of the Attorney-General of the Federation who is the Chief Law Officer of the Federation and a Minister of the Government of the Federation. It also establishes by Section 195 (1) the office of the Attorney-General of a state who is the Chief Law Officer of the state and a commissioner of the government of the state. Essentially, in law and on paper, because there are state criminal laws which outlaw corruption coupled with the prosecutorial powers of a state Attorney General, there is nothing preventing a state from prosecuting acts of corruption committed in relation to the funds of the state. But the practical facts show that most states have shied away from prosecuting acts of corruption related to their resources. This could possibly be traced to the fact that there is only one police force that investigates and facilitates the preparation of materials needed to sustain a charge in court. Further, it is also a notorious fact that the corrupt electoral system, which allows incumbents to virtually handpick successors against the votes of the electorate limits the ability of sitting governors to prosecute their predecessors who facilitated their becoming governors.
But the central challenge for this discourse is the decision of the courts and the action of the Federal Government in relation to the proceeds of crime after a conviction has been secured or after negotiations have been concluded for the repatriation of state level funds looted by public officers at the state level. In the former governor of Abia State, Orji Uzor Kalu’s case, the decision that the proceeds of corruption should be forfeited to the Federal Government raises a central question. Who should be the beneficiary of recovered proceeds of crime? Again, this question is raised in relation to the recovered loot from a former governor of Delta State, James Ibori, and in all other cases where the Federal Government seeks to recover the looted resources of subnational governments. The Principles for the Disposition and Transfer of Confiscated Stolen Assets in Corruption Cases prepared by the Global Forum on the Assets Recovery indicate that recovered assets should be deployed for the benefit of victims of the crime.
Common sense dictates that the money belongs to the respective states from where the former governors stole them. They are not funds stolen from the federation’s distributable pool account. It is money belonging to the state after sharing or resources from the internally generated revenue of the state. The respective states are the victims of the crime and even if the recovery is done by the Federal Government, it is merely acting as an agent and cannot in good conscience pocket the proceeds of crime when it cannot in any sense be described as the victim. The best the federal authorities can do is to make reasonable claims for the cost of investigation, negotiations and or prosecution. This should involve negotiations with the relevant states or subnational governments from which the money was stolen and thereafter, the bulk of the money should be transferred to the subnational government. Therefore, the Federal Government’s clear intention indicated yearly in the federal budget where recovered loot is stated as a funding/revenue item is manifestly wrong and shows an uncompromising resolve to re-loot the resources of other tiers of government after recovery.
Any resort to the outdated authority of provisions of extant laws is simply a justification of our flawed federal structure. It can only reinforce poverty, stagnation and underdevelopment. If an amendment of the extant laws is required, the executive and legislature should collaborate to produce an amendment in the next couple of weeks. On the part of the states, it is imperative that they seek to join corruption cases against former officials to indicate their interest early.
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