A secret deal between the government and the Abachas, wants the family to return part of the loot, in exchange for perpetual immunity against prosecution.
The deal, kept classified for months, was personally approved by President Goodluck Jonathan in July 2014, and jointly authored by the Attorney General, Mohammed Adoke.
The terms of the agreement, obtained by PREMIUM TIMES in March, have alarmed anti-corruption activists.
“The agreement is (also) a tragic triumph of impunity,” said The Berne Declaration, a Swiss nongovernmental organization, which for years has monitored efforts by the Nigerian government to recover hundreds of millions of dollars stashed by the former military ruler, and his family, in bank accounts across Europe, and America.
The agreement closes criminal proceedings for the plundering of the Nigerian treasury against the perpetrators and their accomplices, with the result that they go unpunished.
Foreign banks involved in the heist have also not been convicted of money laundering.
Worse, Swiss lawyers and other attorneys who helped facilitate the so-called out-of-court settlement, will pocket fees up to five per cent of all monies recovered from the family from banks in Switzerland and other countries. The government expressly agreed to pay one of the attorneys $28 million.
“This is all the more troubling because many of the banks involved have not been convicted of money laundering. It is equally incomprehensible that the Swiss lawyers involved may pocket up to 7 percent of the sum for their services, as this money belongs to the Nigerian population,” Berne Declaration said.
The base of the agreement is for the Abacha family to cooperate with federal authorities to have the stolen funds repatriated, in exchange for clemency.
On receipt of the assets, Nigeria will “end any and all legal proceedings and investigations against the settling parties (referring to the Abacha family)”.
The government will “recognise” properties owned by the family in Nigeria, the agreement says.
“The FRN (Federal Republic of Nigeria) will withdraw any and all civil proceedings against the settling parties,” one clause in the agreement states.
Another clause says, “The FRN will end, without any finding of liability or guilt, any and all proceedings of whatever kind including criminal, civil or administrative proceedings contemplated or pending in any court in Nigeria (including in relation to forfeiture and or restraint) relating to or arising out of any investigations into the resolved matter, …”.
“The FRN will provide to any government, authority or organisation, where necessary, information, clearance or such other documentation or support as may be required by any or all of the Settling Parties to ensure and guarantee unrestricted movement in and out of Nigeria or in any other state or country,” another clause adds.
As Nigeria’s military leader between 1993 and 1998, Mr. Abacha stashed away billions of dollars of public funds in various accounts abroad.
Transparency International estimates $5 billion was stolen.
The money include those in three accounts at HSBC Bank Plc, one in Standard Bank Plc in England; five accounts in Cítibank Private Bank of London; one account in Deutsche Bank International Ltd, in Jersey, United States; three accounts in Banque SBA SA and one in Standard Alliance Corporation in France.
There are also funds in nine accounts in Luxemburg and Liechtenstein totaling about $248.64 million and Euros179.14 million, which was transferred to the Bank for International Settlements (BI) in 2014.
In June 2014, Liechtenstein agreed to return $227m, while the U.S. froze some $458m hidden by Abacha in bank accounts.
Switzerland had earlier returned some $700m. By March 2015, the country agreed to return a further $380m.
The recovery of the money had been blocked by legal action brought by companies linked to members of the Abacha family.
The government’s initial charges against Abacha’s oldest son, Mohammed Abacha, was for unlawfully receiving government money from his father.
The Nigerian government agreed to the secret deal as a sort of plea bargain, to have the Abacha family drop its case, and allow the money to be repatriated.
Geneva prosecutors had also closed their own case against the Abacha.
Anti-corruption activists argue that granting immunity to those who helped in stealing the country blind will only embolden others to do worse.
They also question why the Nigerian government failed to lay clearly as part of the agreement how recovered money will be applied from the benefit of Nigerians.
“The agreement between Nigeria and the Abacha family, approved by the Public Prosecutor in Geneva, does not contain a single provision to ensure that the returned money will be of benefit to the Nigerian people from whom it was stolen in the nineties and who continue to suffer endemic corruption,” Bernes Declaration said.
“The entire arrangement is questionable,” said David Ugolor of the Africa Network for Environment and Economic Justice. “We must let Switzerland see the need to suspend further decision on the return of the money stolen by Abacha until all the terms are clearly established in a manner that would really benefit Nigerians.”
Anchored by Attorney General Adoke, the agreement compels the Federal Government to withdraw all pending cases against any member of the Abacha family at home and abroad, while all organs of government, including the National Assembly, were barred from asking questions with the intention of recovering the stolen wealth.
Also, the deal forbids the government from taking any action to limit the constitutional rights, including freedom of movement of the Abachas within and outside Nigeria and right to property, in connection with the theft.
Mohammed and Abba Abacha represented the Abacha family in the negotiations, which also involved international brokers.
Mr. Adoke represented Nigeria on the instructions of President Jonathan.
“I hereby confirm that the Honourable Attorney General of the Federation and Minister of Justice, Mr. Mohammed Adoke SAN CFR, has full authority to contract in that capacity in relation to the Repatriation Agreement between the Federal Republic of Nigeria and Alhaji Mohammed Sani Abacha and Alhaji Abba Abacha,” the president wrote.
As part of the agreement, Nigeria will pay four per cent of the sums recovered and repatriated to Nigeria to Swiss agent, Enrico Monfrini of Monfrini, Crettol & Associe, which also entitled to another $5 million for litigation expenses.
Another 2.8 percent of the recovered or repatriated sum was agreed to be paid Christian Luscher of CMS Von Erlach Poncet Ltd (subject to a cap of $28million), while the Abacha are expected to settle the legal fees of their appointed agent, Nicola Boulton, of Byrne and Partners of London.
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