Wednesday 22 June 2016

#MustRead: Dasuki’s $2.1billion Arms Twist

Sambo Dasuki being led to Court
by: Lekan Sote

It is neither morally, nor legally, right for anyone to divert government funds to purposes other than what they were statutorily appropriated for. Therefore, a twist in the direction of funds meant for arms to other (illegal) purposes without requisite government virement is unacceptable!

Media reports indicate that $2.1bn (or a tally of $15bn, according to unconfirmed reports credited to the Economic and Financial Crimes Commission), purportedly earmarked for acquisition of military hardware to prosecute the war against Boko Haram insurgents was allegedly diverted to finance the re-election campaign of former President Goodluck Jonathan.

Individuals, within and without the Peoples Democratic Party, who received money from the erstwhile National Security Adviser, Col. Sambo Dasuki (retd.), or from some PDP chiefs, have been making confirmations, or confessions, if you like. But many of them, however, claim they had no inkling of the source of the funds, and so hope to foreclose prosecution for conspiracy or complicity.

A former Minister of Finance and Coordinating Minister for the Economy, Dr. Ngozi Okonjo-Iweala, who claimed to have released $300m and 5.3m pounds to Dasuki, volunteered that the money was drawn from the loot recovered from the late military dictator, Gen. Sani Abacha.

She explained in a letter to former President Jonathan that Dasuki made a request “sequel to the meeting (that former President Jonathan) chaired with the Committee on the use of recovered funds, where the decision was made that recovered Abacha funds should be split 50-50 between urgent security needs to confront Boko Haram, and development needs.”
She added: “This letter is to seek your approval to borrow these funds, for now, to disburse to the NSA,” but also noted that “These funds form part of the Federal Government Independent Revenue, (yet) to be appropriated for accountability.”
Then her copout: “Given the particular nature of security and intelligence transactions, we would expect the NSA to account to Your Excellency for the utilisation of the funds.” Neither former President Jonathan nor Dasuki has refuted these claims.
Though part of the money from the Abacha loot was diverted to “security needs to confront Boko Haram,” she didn’t quite categorically state that the money went into a security vote, before it was disbursed.

Whereas a defence budget is a security expense, a security vote may not necessarily be appropriated for strictly defence matters. Security, that could sometimes be plain skullduggery or underhand malpractices on behalf of the state, is a hold-all bag.

Security votes are expended at the discretion of the President or governor as the case may be. And as the convention on such matters goes, he does not have to account for the expenditure in the open. That should explain why Britain’s spy agencies, the MI5 and the MI6, are within the Treasury Department, where Her Majesty’s expenditures on their cloak-and-dagger business could be “hidden.”

If the money given to Dasuki had come from a security vote, Okonjo-Iweala would have no need to hint former President Jonathan that “these funds form part of the Federal Government Independent Revenue, (yet) to be appropriated.” It would have been duly appropriated.

It would then be ultra vires for anyone – the EFCC, police or judiciary – to ask Dasuki, Okonjo-Iweala, Jonathan, or anyone who received part of the money for any purpose whatsoever, to account for its spending. It’s simply not expected, and it’s not done. The recent histrionics of the EFCC and the judicial establishment would have been mere puffery and hot gas on behalf of the Federal Government.

And those who allege that President Muhammadu Buhari’s anti-corruption crusade are diversionary tactics to get Nigeria’s poor suffering masses to look away from the inability of his government to properly run the economy, and so, alleviate their daily grind, will then have a point. But it doesn’t look like the money came from a duly appropriated security vote, though it was spent on supposed security, or defence purposes.

Jonathan and Okonjo-Iweala may have therefore acted in breach of Section 80(3) of Nigeria’s Constitution which provides that “No moneys shall be withdrawn from any public fund of the Federation, other than the Consolidated Revenue Fund of the Federation, unless the issue of those moneys has been authorised by an Act of the National Assembly.”

This is because, even if the Abacha loot was paid into an omnibus (so-called) “Federal Government Independent Account,” which may qualify as “any public fund,” it has not been made abundantly clear that the account is a Security Vote vehicle. Neither is there evidence that the money was duly appropriated by the National Assembly for any purpose, including security or defence.

Okonjo-Iweala’s letter to former President Jonathan was written in January 2015, the $2.1bn would have been disbursed before the March Presidential Election (or the May 29, 2015 date of handing power to President Buhari)and the 2015 Budget was appropriated by the National Assembly in April 2015, after the Senate finally ratified it.

No one has yet confirmed that provision was eventually made for the $2.1bn in the 2015 Budget. If this were so, both former President Jonathan and Okonjo-Iweala may have also breached Section 80(4): “No moneys shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the Federation, except in the manner prescribed by the National Assembly.” If the Abacha loot is not part of the Consolidated Revenue, as defined by Section 80(1), it should, at least, be regarded as “any other public fund.”

Breaches like these require the National Assembly to invoke Section 89(1)(c), to “summon any person in Nigeria (including an ex-President, his Finance Minister and National Security Adviser?), to give evidence at any place (including the EFCC and the law courts?), or produce any document or other thing in his possession or under his control (expenditure approval memos?) subject to all just exceptions,” of course.

And if it will not impugn on the person of former President Jonathan, who Dasuki insists approved all the contracts he awarded, he may have to comply, alongside his Minister for Finance and National Security Adviser, with Section 89(2): “A summons or warrant issued under this section may be served or executed by any member of the Nigeria Police Force, in that behalf, by the President of the Senate or the Speaker of the House of Representatives, as the case may be.” What do you make of that?

Somebody also needs to explain the origin, and purpose, of “the Federal Government Independent Account.” No one should assume that everybody should know what the account is used for. A thumbing through the Federal Government’s Financial Instructions booklet does not reveal a “Federal Government Independent Account,” and the purpose to which it is applied.

This account could just be the brainwave, a wooly turn of phrase, or Trojan horse, that some wily public finance managers use to put the uninitiated off the trail of illegal public funds spending. It is necessary to clarify if the “Committee on the use of Recovered Funds” has statutory authority to decide how recovered funds should be disbursed, even if for noble or security purposes.

As the EFCC prosecutes the diversion of the $2.1bn, the Minister for Justice should confirm its constitutional authority-to check future abuse.

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