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Abacha's son loses bid to stop trial

Posted by From Alifa Daniel and Nkechi Onyedika, Abuja on 2005/04/20 | Views: 852 |

Abacha's son loses bid to stop trial


THE hope of Mohammed, the son to former military ruler, General Sani Abacha that he had immunity from prosecution over alleged stealing of public funds was yesterday dashed by a Court of Appeal sitting in Abuja.

THE hope of Mohammed, the son to former military ruler, General Sani Abacha that he had immunity from prosecution over alleged stealing of public funds was yesterday dashed by a Court of Appeal sitting in Abuja.

The Court threw out his arguments.

Justice Amina Augie, leading a panel of five justices of the court, ruled that Mohammed had no immunity against criminal prosecution. A Federal High Court had sought the clarification of the Court of Appeal at the instance of Mohammed.

With 123 counts at a Federal High Court hanging over his head, Mohammed sought the clarification of the Court of Appeal on the constitutional powers of the Federal Government to prosecute him.

Having returned funds allegedly stolen by his father, the son of the late dictator argued that he ought to enjoy immunity from prosecution on account of Decree 53 of 1999.

The issues on which he sought clarification include:

As it relates to the 123 counts in CR/21-24/2000 upon which the applicant is presently standing trial before the Abuja High Court, whether the same court can exercise its judicial power under Section 6-6(a) of the 1999 Constitution to determine the civil rights and obligations of the application by putting him on a trial in view of the provisions of forfeiture of assets etc (Certain Persons Decree No. 53 of 1999), an existing law and an Act of the National Assembly which has resolved the issues of criminal liability arising out of those charges?

What is the effect of Decree No. 53 of 1999 on the innocence or otherwise of the applicant as it relates to the 123 counts in this trial. Have the criminal issues the High court is seeking to determine not been concluded therein and if answered in the affirmative, does this court possess the jurisdiction to hear criminal allegations on an issue that has been resolved by an Act of parliament?

Mohammed had wanted the Lower Court to rule that no civil or criminal proceedings could be brought against him for stolen funds he had forfeited to the state.

He said that under the Forfeiture of Assets (Certain Persons) Decree No 53 of 1999, his family had returned USD625, 263,187.19, 75,306,886.93 pounds sterling and N100, 000,000.00 and N250, 000,000.00 and therefore (he is) entitled to the provisions of the said Decree.

Mohammed asked the High Court to dismiss the charges for lack of jurisdiction.

Justice Augie ruled that Decree No 53 did not protect Mohammed from prosecution because as she put it: "Where a statute is clear and unambiguous, the court in the exercise of its interpretative jurisdiction must stop where the statute stops."

She added, "Decree No 53 makes it clear that the property ordered forfeited was acquired corruptly and illegally, which means they were supposedly forfeited as proceeds of crime.

"The appellant (Mohammed) had nothing to do with, and had no action to take with regard to the properties listed against his name after they were forfeited to Nigeria.

"In seizing the said properties from him in the manner it did, via Decree No 53, the appellant was not entitled to any compensation, and by the sheer promulgation of the Decree, without more; the forfeited properties became vested in the Federal Republic of Nigeria free of all encumbrances."

According to her, Decree 53 only indemnified from civil suit, any person who dealt with the properties after they were forfeited and vested in the Federal Government.

Mohammed, the Court of Appeal added, could not rely on that provision, adding that for a plea of bar to criminal prosecution to succeed, the accused must claim and prove that he had previously been acquitted or convicted of the same offence and that in this case, Mohammed had not been tried before, nor had he been convicted or sentenced.

"In the final analysis," Augie said: "There is nothing in the provision of Decree No. 53 which inhibits the High Court of the FCT, Abuja from exercising its judicial power to try the Appellant for the various criminal offence contained in the four charges brought before it by the Attorney General of the Federation.

"The said Decree and the 1999 Constitution did not confer any immunity on the appellant and the charges based as they are on receiving stolen property can be entertained by the said high court."

On the issue that his father had immunity to spend public fund the way he pleases, Justice Augie held that the plea of immunity was not available to Mohammed.

"The provision of Section 308 of the Constitution is a policy legislation designed to confer immunity from civil suits or criminal process on the public officers named in Section 308 (3) and these are limited to persons holding the office of President or Vice-President, Governor or Deputy Governor.

"What this means is that even if the late Head of State were alive today, the immunity enjoyed by him would not have extended to his son, who would have had to sink or swim in any criminal trial without the lifeboat of immunity."

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Fay(Katy, Texas, US)says...

Actually translates to bravehearted.