The Socio-Economic Rights and Accountability Project (SERAP) has urged President Muhammadu Buhari to urgently “seek from the International Criminal Court an arrest warrant to bring Mrs Diezani Alison-Madueke before the court on allegations of corruption against her, which the government should consider as crimes against humanity and serious enough for it to sanction her prosecution before the court.”

The organisation also urged the government to “pursue civil actions to ensure that all the funds allegedly stolen by her are fully recovered and duly accounted for.”

In a statement issued on Sunday, September 3, 2017 and made available to EnviroNews, the SERAP deputy director, Timothy Adewale, said: “The allegations of corruption against Mrs Diezani Alison-Madueke suggest the manifest failure of the government of former president Goodluck Jonathan to protect Nigerians from such heinous crimes. Your government now has the responsibility to take bold action to sufficiently redress this injustice committed against Nigerians, and the significant long-term damage for the country.”

The organisation added: “By pursuing international warrant of arrest for Mrs Diezani Alison-Madueke in order for her to be brought before the ICC, your government would be showing to Nigerians that it is indeed determined to match its stated commitment to combat grand corruption and its debilitating effects with concrete and bold action.”

SERAP’s request followed growing allegations of corruption against Mrs Alison-Madueke and the recent disclosure by the Chairman, Presidential Advisory Committee Against Corruption, Prof. Itse Sagay, that the Economic and Financial Crimes Commission (EFCC) had recovered about half a trillion naira from her. Several court orders have also seized millions of dollars from bank accounts and forfeiture of several houses both in Nigeria and abroad linked to her.

The statement reads in part: “SERAP believes that, as important as it is, the recovery of alleged stolen public funds from Mrs Diezani Alison-Madueke is far from adequate to redress the crimes against humanity that have been committed against Nigerians. The allegations of corruption clearly suggest the exploitation of Nigeria’s natural resources to the detriment of its people, and are serious enough to meet the requirements of crimes against humanity, thus bringing her within the jurisdiction of the ICC.

“Pursuing this case before the ICC would also help to deter grand corruption and its devastating effects on Nigeria and contribute to the development of case-law in the field of corruption and citizens’ socio-economic rights, and ultimately advance the right of Nigerians to restitution, compensation and guarantee of non-repetition. Such bold initiative would also improve public confidence in the fight against corruption.

“We also urge your government should urgently propose legislation that would characterise the kind of corruption allegedly committed by Mrs Diezani Alison-Madueke as crime against humanity within our national laws, and thus allow Nigerian courts to directly hear those cases.

“In this case, the inhumane acts committed against Nigerians take the form of grand corruption, and taking away our commonwealth for her personal benefit, the corrupt acts apparently took place over an extended and critical period during the government of former president Goodluck Jonathan. Mrs Diezani Alison-Madueke knew or ought to have known that such level of alleged corruption by her would cause or contribute to or aggravate the suffering of marginalised and vulnerable Nigerians, denying them access to the basic necessities of life.

“The fact that such enormous crimes could went on for such a long time without any form of redress is an affront to universal human rights of Nigerians to their natural wealth and resources. SERAP believes that causing unspeakable hardships or aggravating the suffering of large numbers of Nigerians ought to constitute an inhumane act of a nature amounting to a crime against humanity, for which the most appropriate forum of redress is the ICC.

“The allegations of corruption against Mrs Diezani Alison-Madueke deeply shock the conscience of humanity. Stealing of public funds meant to ensure basic necessities such as water, shelter and medicines for Nigerians rises to the level of crimes against humanity, as this has compelled the citizens to live in inhumane or degrading conditions, in violation of customary international law and treaty obligations particularly the Rome Statute of the International Criminal Court to which Nigeria is a state party.

“Article 7(2) (b) of the Rome Statute of the International Criminal Court among others includes the intentional deprivation of access to food and medicine as crime against humanity. Under Article 30(2) (b), a person has intent in relation to a consequence, for example, where that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

“Allegedly stealing such huge public funds from a developing country like Nigeria has not only drained Nigerians of their valuable commonwealth but also contributed to poverty, irregular electricity supply, bad roads, poor and inadequate health facilities, underdevelopment, conflicts, and insecurity.

“Primarily because of grand corruption under successive governments since the return of democracy in 1999, millions of Nigerians continue to live in extreme poverty, a condition manifested by the lack of clean water, malnutrition, high rates of child mortality and morbidity, low life expectancy, illiteracy, perception of hopelessness and social exclusion.

“Such basic necessities are those resources needed for individuals to maintain their physical and mental integrity. The resources may be material resources, services or access opportunities. SERAP believes that depriving individuals of basic necessities may cause physical or mental sufferings, material losses, physical or mental injury, or death.

“SERAP also notes the final report on the Question of Impunity of Perpetrators of Human Rights Violations by UN Special Rapporteur El Hadji Guiss which concluded that violations of economic, social and cultural rights could be declared international crimes that are consequently subject to the principles of universal jurisdiction and imprescriptibility.

“Similarly, Common Article 1 to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights stipulates an imperative prohibition against depriving a people of its own means of subsistence.

“The essence of crimes against humanity is a systematic policy or action of a certain scale and gravity directed against a civilian population. The expression ‘attack directed against any civilian population’ is defined as meaning ‘a course of conduct involving the multiple commission of acts against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such attack.

“The term ‘attack’ is not limited to violent acts. SERAP believes it extends to grand corruption committed with the intent or knowledge that such enormous crime will subject a civilian population to inhumane conditions of existence or perpetuate such conditions.

“The ICC pre-trial chamber issues a warrant if it determines that the summary of evidence that the prosecutor presented establishes reasonable grounds to believe that the person named has committed a crime within the court’s jurisdiction.”

Nigerian lawyers have described the annulment of Kenyan’s presidential election by the country’s Supreme Court as victory for constitutional democracy, urging Nigeria’s judiciary to emulate the courage of Kenyan justices.

The Supreme Court in Kenya on Friday, September 1, 2017 declared the presidential elections held on August 8 as null and avoid and ruled that a re-run be conducted within 60 days.
According to the justices, the presidential election was not conducted in accordance with the constitution.

Chief Emeka Ngige (SAN) said the judgment is good for our nascent democracy in Africa as a whole.

The decision, he said, would now be cited as a precedent that any election, be it presidential or councilorship election which was not conducted in accordance with the law is liable to be nullified.

He said: “There was an opportunity for the Supreme Court of Nigeria to make such bold decision but it was missed in 2007 when the majority of the justices upheld a highly flawed election conducted by INEC under Prof Iwu. “Yar’Adua the beneficiary of the rigged election acknowledged same in his national broadcast and set up Uwais Election Reform Committee. Till date the two unfortunate decisions in Buhari Vs Inec & Atiku Abubakar Vs Yar’adua are still being cited as authorities by our courts to save rigged elections.

“So I hail the justices of the Kenyan Supreme Court for their courage and boldness in nullifying the rigged Kenyan election. Heaven will not fall.

“The lesson for Nigeria is that we must be very cautious in the use of electronic voting for our 2019 election. Its open to manipulation as was witnessed in Kenya and in the last NBA national election.”

Bar. Ifeoha Azikiwe said Kenya has set an unbeatable standard for the judiciary in Africa.

He maintained that there must be a departure from the past, adding that if it were to be in Nigeria,  the case would have lingered until the incumbent completed his four or eight years in office or would eventually be declared a winner.

“It is a big challenge to the bench and bar in Nigeria who would have used legal technicalities to reverse the case. Looking back at history, have the Kenyatta’s honestly won any election in Kenya?  It has always been a “landslide victory” for the ruling party. The country has always had highly controversial elections. Thank God there is one Raila Odinga that gives hope to the opposition in Africa,” he stated.

Abuja based lawyer, Abubakar Sani, said the judgment, which he described as salutary and most welcomed, said it is a breath of fresh air and shows that there is hope for Africa.

“It is a sign that African legal institutions are coming of age, they are becoming fearless, bold and willing to assert their independence more than ever before.  It is good news and gives one much to cheer about. It is certainly worth celebrating,” he stressed.

Also, Bar Tony Odiadi said it is a good development showing the full capacity of the judicial arm to intervene and decide whether any election was in compliance with the law as stated.

According to him, a precedent of this nature, will surely stand in good stead to enable the judiciary in other countries to be so decisive.

His words: “It must be mentioned that the Nigerian judiciary has not through its more recent history intervened in any manner as radical as this Kenyan case. Not in the Awolowo v Shagari and Buhari v Yar’adua cases have judicial power been expressed of this magnitude. “The decisions in the Amaechi, Obi, Ladoja cases etc are more of pronouncements on interpretations where states were in issue, not the presidential election.

“It shows a full measure of judicial confidence that will serve the purpose of facilitating compliance with extant provisions of the law.”

He noted that many issues dog elections in Nigeria, ranging from preelection and post election matters, violence at the polls, qualification to stand election, double voting, underage voting, wrong collation of votes, and others.

According to him, all those are capable of leading to voiding votes and elections, but the courts place high thresholds for petitioners.

“We must congratulate the Kenyan Supreme Court for this judicial courage. It was in the Atiku cases against INEC on qualification to contest election that the Nigerian Judiciary showed equal masculinity in holding that the Vice President’s loyalty is to the constitution and not to the person of Mr President,” he stated.

Similarly, Bar Solomon Ukhuegbe said Kenya has done so well in a few constitutional cases aside from election petitions.

Ukhuegbe noted that election appeals seem to drag forever in Nigeria because governorship election petitions, for example, go through two appeals and pre-election cases have no time limit and often drag on for years.

“In Kenya, the presidential election petition went straight to the Supreme Court and it seems most of the proceedings was documentary. In Nigeria in contrast, the Supreme Court is never a court of first instance in such matters.

“Secondly, our election jurisprudence requires hundreds of witnesses, in order to prove malpractice in practically every polling station. Even with the process of having witnesses adopt their written statements, it is still very time consuming with cross examination and all that,” he stated.

The Committee for the Protection of Peoples Mandate (CPPM) also commended the Kenya Supreme Court for upholding the tenets of constitutionalism and reaffirming the people’s faith in democracy and the rule of law.

“We regard this judgement as a victory for constitutional democracy which must be commended and emulated by other African countries for the peace, progress and development of the African continent.

“We commend most sincerely the opposition party who though aggrieved with the outcome of the Presidential election, didn’t take the laws into their hands, but explored the constitutional and democratic option of approaching the courts to seek justice which has been dispensed with,” the group said in a statement endorsed by Nelson Ekujumi, its Executive Chairman.

The judgement of the Supreme Court in annulling the outcome of Kenya’s 2017 Presidential election, the group said, represents a new chapter in the democratic process in Africa because it signposts the independence, doggedness and commitment of the Kenyan judiciary to the constitution.

“The judgement of the Kenya Supreme Court should also serve as a wake up call to political parties in Africa who lose election, to realise that the courts or the judiciary remains the only civilized and democratic medium to get justice based on presentation of incontrovertible facts and not just to cry foul to raise tension and heat up the polity.

“As we celebrate with the Kenya people for setting a new standard with regards to constitutional democracy, may we encourage and admonish them to continue to keep faith with democracy by being eternally vigilant in preparation for the yet to be scheduled Presidential election and maintain the peace before, during and after the election,” the group counseled.

By Chinyere Obia