Malabu oil: Why charges are unconstitutional and invalid
The Economic and Financial Crimes Commission has reportedly filed charges against two former Ministers, Dan Etete and Mohammed Adoke (SAN), the immediate past Attorney-General of the Federation, as well as one Aliyu Abubakar and several limited liability companies, arising from the alleged fraudulent diversion of the sum of $1.1 billion paid by oil giants, Shell and ENI, in respect Oil Prospecting Licence (OPL) 245 to which Malabu Oil & Gas Company Ltd, owned by Etete, had laid claim.
The charges allege that the defendants committed or aided the commission of money-laundering by fraudulently facilitating the payment and transfer of the said sum of money from an account operated by the Federal Ministry of Justice, to Dan Etete, Malabu Oil, Aliyu Abubakar and the said companies. For reasons which I shall presently outline, I believe that to proceed with the charges in their present form would violate the fundamental right of fair hearing under Section 36(8) of the 1999 Constitution .
What is the substance of the charges?
All the nine-odd charges in the indictment apparently relate to or arise from the same transaction(s). That being the case, for the sake of brevity, only two of them will be considered here, as follows:
“That you Dauzia Loya Etete (aka Dan Etete) and Malabu Oil & Gas Co. Ltd on or about August 10, 2011, directly or indirectly took control of the sum of $401,000,000 paid from the Federal Government of Nigeria escrow account number 41451493 IBAN GB 30CHAS609242411493 with JP Morgan Chase Bank in London, into the account Malabu Oil & Gas Ltd., domiciled in First Bank of Nigeria Plc. Account Number 2011828805, when you knew the funds formed part of the proceeds of an unlawful activity to wit: fraud, and thereby committed an offence contrary to Section 15(2) of the Money Laundering (Prohibition) Act 2011 as amended in 2012 and punishable under Section 15 (3) of the same Act”
“That you, Mohammed Bello Adoke (SAN), on or about August 10, 2011 in Abuja, within the jurisdiction of this Honourable Court, aided Dauzia Loya Etete (aka Dan Etete) and Malabu Oil & Gas Ltd. to commit the offence of money laundering by facilitating the payment of an aggregate sum of $801,540,000 only to Dauzia Loya Etete (aka Dan Etete)and Malabu Oil and Gas through the Federal Government of Nigeria Escrow account Number 41451493 IBAN GB 30CHAS609242411493 with JP Morgan Chase Bank in London, which you reasonably ought to have known represented the proceeds of an unlawful activity to wit: fraud, and thereby committed an offence contrary to Section 18(a) of the Money Laundering (Prohibition) Act 2011 as amended in 2012 and punishable under Section 15(3) of the same Act ”
The Money Laundering Act
The offences were allegedly committed on the 10th and 24th days of August 2011, at least the two that are reproduced above. Section 18(a) of the Money Laundering (Prohibition) Act 2011 under which the second charge above was laid took effect from the 3rd day of June 2011, and it provides: “A person who conspires with, aid, abets or counsels any other person to commit an offence under this Act commits an offence and is liable on conviction to the same punishment as is prescribed for that offence under this Act”
Both the principal Act and the amendment thereto outline a number of substantive criminal offences, such as theft, murder, robbery, forgery, kidnapping, bribery, corruption, etc, which they purport to criminalize by providing (e.g. Section 15(1)(a)(ii) of the principal Act) that any person who converts or transfers resources or properties, derived directly from such conduct specified in the Act or any other legislation relating to money laundering with the aim of concealing or disguising the illicit origin of the resources or property or aiding any person involved to evade the illegal consequences of his action, commits an offence under the Section.
Significantly, fraud is not one of such offences. This provision, i.e., fraud as a money-laundering offence, was introduced by the amendment to the Act in 2012 which replaced the entire Section 15 of the principal Act, the operative clause of the Act. The significance of this in relation to the Malabu charges is that, even though they specifically allege fraud against the defendants, curiously, as at the date the offences were allegedly committed – in August 2011 – fraud was not one of the offences in connection with which money-laundering could be committed. To that extent, the law is settled that the legislature is deemed to have excluded it, the maxim being: expressio unius est exclusio alterius. See P.C.H.S. LTD. vs MIGFO (2012) All FWLR pt. 642 pg. 1615 @ 1643D, per Galadima, JSC.
This conclusion is all the more compelling, in my view, because the Money Laundering Act is a penal statute. The Supreme Court has held that such statutes should be construed strictly for the benefit of any person charged with their contravention: OHUKA vs THE STATE (1988)2 S.C pt. II pg. 139. This legal requirement manifests in four ways:-
i. That express language is required for the creation of the offences alleged;
ii. That words describing the elements of the offence should be strictly interpreted;
iii. That any statutory conditions precedent to the infliction of punishment should be fulfilled to the letter; and
iv. That all technical provisions should strictly be observed:
UMOERA vs. C.O.P (1977) 7 S.C. 12.
In the cited case, the Supreme Court held that if there is any ambiguity in the words which set out the elements of the act or omission declared to be an offence, so that it is doubtful whether the act or omission falls within the statutory words, the ambiguity will be resolved in favour of the person charged.
Applying the foregoing parameters to the Malabu charges, I submit that the non-inclusion of fraud in the ipsissima verba of the Money Laundering Act 2011 which was in force at the time when the offences were allegedly committed, is fatal to the case of the prosecution. I believe that this is the only possible conclusion from a dispassionate application of the principle in UMOERA’s case, supra, which demands that not only should the words describing the elements of the offence be strictly interpreted, all its technical provisions should strictly be observed.
To that extent, it is clear that to proceed with the said charges in their present form would violate the fundamental right of the defendants to fair hearing under Section 36(8) of the 1999 Constitution which provides, inter alia, that:
“No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it look place, constitute such an offence”.
Assuming, without conceding, that the said amendment relates back to the date of the commission of the alleged offence, i.e., that the amendment is retroactive, this would equally be invalid by virtue of Section 4(9) of the Constitution which provides that “the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect”
CONCLUSION
(i) Fraud was not a money-laundering offence at the time the acts alleged in the Malabu indictments were purportedly committed. Accordingly, it would be a travesty of justice and a violation of the constitutionally guaranteed right of fair hearing to arraign any citizen of Nigeria on the basis of conduct which did not, at the time it was allegedly committed, constitute a criminal offence.
(ii) Given that no criminal law can have retrospective effect, the amendment effected by the Money Laundering (Prohibition)(Amendment) Act 2012 which made fraud a money-laundering offence is inapplicable to the conduct alleged in the said indictments. Beyond this, however, the National Assembly will need to further amend the Act, in my view, if it is to achieve the desired results.
(iii) This would entail omitting from the scope of the Act such non-federal offences as murder, grievous bodily harm, theft, robbery, forgery, extortion, fraud and participating in an organized criminal group, as well as the present blanket inclusion of any other criminal act specified in any other law in Nigeria, as it is simply too sweeping – apart from Abuja, FCT, the National Assembly can legislate for the rest of Nigeria only on those matters in respect of which it has been specifically empowered under the Constitution: DOHERTY vs BALEWA (1961) NSCC 248 @252; Section 299(a) of the Constitution.
(iv) To the extent that the subject matter of any criminal offence is contained in neither the Exclusive nor the Concurrent Legislative Lists of the Constitution, but rather, in the Residual List, only State Houses of Assembly are competent to legislate on them: ATT-GEN. OF ABIA vs. ATT-GEN. OF THE FEDERATION (2006) 7 S.C.N.J.1. Accordingly, interested States should be encouraged to enact appropriate money-laundering legislation in respect of such offences.
(v) Both the National Assembly and relevant prosecuting agencies should review their respective powers under the 1999 Constitution vis-a-vis criminal offences generally, but particularly money-laundering, bearing in mind that the objective of criminal justice administration is justice according to law, not securing convictions at all costs or by any means, fair or foul.
ABUBAKAR D. SANI, Esq.