Posted by Tobi Soniyi, Abuja on
The Federal Government on Wednesday said that it had absolute powers to try the scion of the late General Sani Abacha, Mohammed, for allegedly stealing public fund or for any other crime.
The Federal Government on Wednesday said that it had absolute powers to try the scion of the late General Sani Abacha, Mohammed, for allegedly stealing public fund or for any other crime.
Reacting to an application which Abacha filed before the Court of Appeal, seeking to stop the government from charging him with any criminal offences relating to the various sums of money he forfeited to the state, government lawyer, Chief Bayo Ojo (SAN), said that Abacha did not have immunity against prosecution.
Ojo told the court that section 174 of the 1999 Constitution conferred absolute powers on the Attorney-General of the Federation and Minister of Justice to bring criminal charges against Abacha.
He said, "The Federal Government through the office of the AGF has absolute powers to institute case against anybody and no court in Nigeria has the power to inquire into it."
He also urged the court to discountenance the argument raised by Abacha's lawyer, Chief Joseph Daudu (SAN), that trying him (Abacha ) after returning the looted funds amounted to double jeopardy.
"The issue of double jeopardy does not arise because there has been no trial," he argued.
He challenged Abacha to point out the law which conferred on his father the powers to steal public funds.
On the provisions of Decree 53 of 1999 on which Abacha relied in his claim that he could not be prosecuted, Ojo argued that the decree did not apply to him.
According to him, the decree applied only to public officers who had forfeited sums of money or property.
In his reply, Daudu told the court that the word used in the decree is 'any person' and that it included Abacha who handed over the looted fund to the government.
The court said that it would deliver judgment in the mater on April 14.
Abacha is challenging the powers of the Federal Government to try him for criminal offences, including stealing of public funds, after he had voluntarily handed over the alleged stolen money.
He is asking an Abuja High Court to hold that no civil or criminal proceedings could be commenced against him in respect of stolen funds he had forfeited to the state.
He said that since under the Forfeiture of Assets (Certain Persons) Decree No 53 of 1999, his family had returned $625, 263,187.19; 306,886.93 pounds sterling; N100, 000,000.00 and N250, 000,000.00 it was, therefore, entitled to protection from prosecution under the decree.
He, however, said that in sheer disregard to the provisions of the decree, the government filed 123 charges against him.
He stated that some people who had voluntarily complied with the decree had been exempted from both civil and criminal prosecution.
He cited the case of Messrs. Gilbert Chagoury and Mark Rissar whom he said were indemnified after they yielded up possession of important sums of money to the Federal Government.
He argued that the acts of his father in transferring money into foreign accounts for national interest purposes were covered by sovereign immunity and therefore not open to successive government's probe.
He said, "The basis upon which the surrender or return of the amounts and assets specified in the Decree were made was that the family of the late General Sani Abacha shall be absolved and be made free from any future or further prosecution regarding any transaction relating any fund.
"That mutual understanding and agreement between the government and the family of the late General Sani Abacha and all who volunteered to surrender assets and returned various sums of monies culminated into Decree 53 of 1999."
Mohammed argued that the contents of the Decree bind the government of General Abdulsalam Abubakar and as well as all governments that succeeded that regime and the matter could not be reopened.
He asked the high court to dismiss the charges for lack of jurisdiction.
While the case was pending at the Abuja High Court, Mohammed made an application by way of reference to the court of appeal asking for the following interpretations:
(1)As it relates to the 123 counts in CR/21-24/2000 upon which the applicant is presently standing trial before the Abu]a High Court, whether the same court can exercise its judicial power under section 6-6(a) of the 1999 CFRN 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?
(2)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 possesses the jurisdiction to hear criminal allegations on an issue that has been resolved by an Act of parliament?
(3)Since the thread that runs through the 111 (sic) 123 counts in the trial the applicant is presently standing before this court is that the applicant received stolen property from the late Head of Sate, whether any fund dealt with by the later in his capacity as Head of Sate -can be questioned by another administration in the face of all the Decrees that enable him to exercise unlimited powers and in that vein whether the charges based as they are on receiving stolen property an be entertained by the High Court.
He argued that in the first instance the money was not stolen but was taken out by his father as the then head of state for security reasons and to safeguard the national interest.