Falana drags all those indicted in arms deal scandal before ICC
“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. 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 Barde 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.".
He asked the court to among other things
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 fulfil 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.
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