Prominent human rights lawyer, Femi Falana , has written to the International Criminal Court requesting that the court “investigate a...
Prominent human rights lawyer, Femi Falana, has written to the
International Criminal Court requesting that the court “investigate
allegation of crimes against humanity committed against the Nigerian
people by some former and serving military officials as well as public
officials and private persons who engaged in the criminal diversion of
$8 billion earmarked to procure equipment for the armed forces to fight
insurgency.”
The petition, which was dated January, 19th, 2016, 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 anon, 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.”
The petition further read in part: “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.”
“During a visit to Borno state in 2014, former President 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. 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.
“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 for 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.
“The inquiry conducted by the Presidential Panel on arms procurement
has 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 was criminally diverted by the former government through
the office of the National Security Adviser, Col. Sambo Dasuki (rtd).
It has also been confirmed 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.
“Notwithstanding the deliberate refusal of the military authorities
to purchase arms and armament due to the criminal diversion of the
security fund, Col. Dasuki gave a lecture at Chatham House in London on
February 8, 2015 where he claimed that Nigeria had acquired adequate
equipment to prosecute the war on terror. At the time he was addressing
his London audience Col Dasuki was well aware that the fund for
procurement of weapons had been stolen by himself and his cohorts.
“However, out of the fear that he could be made to account for his
role in the diversion of the security fund the then Chief of Defence
Staff, Air Marshal Alex Badeh disclosed, while he was retiring from the
service on July 30, 2015, that the armed forces led by him lacked the
equipment to fight the terrorists. In his reaction to the disclosure
Col. Dasuki stated sometime in August 2015 that the equipment ordered by
the Jonathan Administration had not arrived the country!
“It is submitted that the former public officials, serving and
military officers as well as civilian collaborators who engaged in the
criminal diversion of the security fund are liable to bear full
responsibility for the death of about 25,000 people who were killed by
the Boko Haram sect and the over 2,000,000 people displaced by the
terrorist organisation.
“Nigeria is a state party to the Rome Statute and deposited its
instrument of ratification on 27 September 2001. The preamble to the
2003 United Nations Convention against Corruption (UNCAC), which Nigeria
has also ratified states that corruption “is no longer a local matter
but a transnational phenomenon that affects all societies and economies.
“We strongly believe that allegations of corruption so far made
against Col. Sambo Dasuki and other public officers have had
catastrophic effects on the lives of over 25,000 Nigerian soldiers and
civilians including children akin to crimes against humanity as
contemplated under the Rome Statute and within the jurisdiction of the
Court. The Rome Statute in article 7 defines “crime against humanity” to
include “inhumane acts causing great suffering or injury,” committed in
a widespread or systematic manner against a civilian population.
“The common denominator of crimes against humanity is that they are
grave affronts to human security and dignity. We believe that the
staggering amount of public funds alleged to have been stolen create
just these consequences. Crimes against humanity are not only physical
violence; allegations of corruption highlighted above hold a comparable
gravity, which the Prosecutor should examine and thoroughly investigate.
“The elements that need to be established to prove a “crime against
humanity “under article 7(1)(k) of the Rome Statute are that, the
perpetrator inflicted great suffering or serious injury by means of an
inhumane act; that the perpetrator was aware of the circumstances, and
that the act was committed within a widespread or systematic attack on a
civilian population; and that the perpetrator knew of that link. The
consequences of allegations of corruption highlighted above are similar
to those of the offences in article 7(1).
“Corrupt officials in the government know well that their conduct is
criminal and injurious, and that their ostentatious lives, built on a
radical breach of solemn trust, aggravate their crime against humanity.
We believe that these allegations of widespread and systematic
corruption amount to crimes against humanity and therefore clear
violations of the provisions of the Rome Statute of International
Criminal Court. These allegations have given rise to individual criminal
responsibility of those suspected of perpetrating corruption, as
entrenched in the Rome Statute.
“Although the government of President Muhammadu Buhari has so far
shown some political will to fight corruption and recover stolen assets,
we believe 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 of perpetrators. 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.”
Falana also requested the ICC to:
1. Urgently commence an investigation proprio motu on the allegations
of the criminal diversion of the security fund of $2.1 billion and N643
billion earmarked by suspected perpetrators, with a view to determining
whether these amount to crimes against humanity within the Court’s
jurisdiction. In this respect, I also urge you to invite representatives
of the Nigerian government to provide written or oral testimony at the
seat of the Court, so that the Prosecutor is 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 an investigation.
2. Bring to justice those suspected to bear full responsibility for
deliberate under funding of the armed forces through widespread and
systematic corruption in Nigeria; and
3. Urge the Nigerian government to fulfill its obligations under the
Rome Statute to cooperate with the ICC; including complying with your
requests to arrest and surrender suspected perpetrators of the criminal
diversion of security fund, testimony, and provide other support to the
ICC.
