Malami to Falana: Don’t Confused Public with Myopic Views
The erroneous assertion by Mr. Femi Falana, SAN on the process of
disbursement and use of recovered stolen funds based on the provisions
of the Revenue Mobilization, Allocation and Fiscal Commission Act and Section 153 (1) (n) of the Constitution of the Federal Republic of Nigeria 1999, as amended, depicts a rash analysis devoid of clear legal foundations.
Revenue Mobilization, Allocation and Fiscal Commission Act has nothing specific on funds recovered from indicted public officers or assets
recovered internationally. It merely mentions accruals and disbursement of revenue from the Federation Account. So, questions of recovery of stolen funds from indicted public officers and illicit assets recovered internally are not contemplated by the spirit of the law internationally and are appropriately dealt with by other relevant laws. One cannot impute into legislation what is not specifically and expressly mentioned.
It is, therefore, misleading to give the impression that recoveries and usage of stolen funds stashed abroad are provided for by the Revenue Mobilization, Allocation and Fiscal Commission Act. More so when recoveries are product of by multiple jurisdictional legislations, thereby bringing recoveries into the purview of conflict of laws.
One cannot situate rights and entitlements on looted funds and recovered assets with myopic and narrow understating of concepts of the application of local legislation.
For the avoidance of doubt and the purpose of setting the record straight, the application of the looted funds can only factor within the context of mutual understanding and negotiations of international and multifaceted jurisdictional and territorial legislative issues.
Section 6 of the Revenue Mobilization, Allocation and Fiscal Commission Act has in part clearly outlines the powers of the Commission. In particular, sub-section (1) (a) empowers the Commission to monitor the accruals to and the disbursement of revenue from the Federation Account. This purely targets revenue already in the Federation Account or funds accruing from sources designated by the Constitution of the Federal Republic of Nigeria 1999, as amended. This derivation formula is local and applies locally within Nigeria. This is not the case with recovery of stolen funds.
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It is interesting to note that Section 80 (1) of the 1999 Constitution
of the Federal Republic of Nigeria (as amended) contemplates exceptions to funds not payable into the federation account. The Section recognizes the possibility of having public funds being administered other than through the derivation formula if the funds (in this case recovered stolen funds) were established for a specific
purpose.
The recovery of stolen assets and the subsequent uses to which these funds may be employed are subject to international agreements between Nigeria and the affected countries, thereby bringing conflict of laws into contemplation.
Importantly also, these repatriated funds are based on cooperation and mutual assistance agreements, especially the United Nation Convention against Corruption and Implementation of the Global Forum on Asset Recovery (GFAR) Principles on the Repatriation of Stolen Assets. The African Union and the ECOWAS Protocols on recovery of illicit funds are equally relevant when it comes to the role of the Nigeria in relation to its other partners. As a member of the committee of nations and a respectable international partner, Nigeria must always strive to fulfill its international commitments in the repatriation and use of stolen funds and assets.
By way of example, the Federal Government of Nigeria has entered into numerous agreements such as the one with the United States and the Island of Jersey in 2020, and including with other countries around the world. Where the agreements assume an international character, the specifics of the agreement often dictate the trajectory of recovery, sharing, transfer and implementation.
The disbursement formula mentioned by Mr. Femi Falana, SAN is applicable in relation to monies belonging to the Federal Government that are locally generated. It is not to be confused with stolen funds and assets domiciled in foreign jurisdictions whose recovery and subsequent repatriation are based on international legal arrangements between the Federal Republic of Nigeria and the foreign custodians of these funds.
It is always important for public figures such as Mr. Femi Falana, SAN to make statements that will enlighten the general public, rather that render utterances that are simply misleading and calculated at striking discord and confusion in the public domain.
Signed
Dr. Umar Jibrilu Gwandu
(SA Media and Public Relations, Office of the Attorney-General of the Federation and Minister of Justice)
