Bagudu begs US court for more time to recover seized Abacha loot
As Victim urges court to adjourn case till after Buhari leaves office; Buhari regime irredeemably compromised causing Nigeria‘s lose of over 150 billion
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On Monday, lawyers for the Bagudu family and the US Government approached the US District Court seeking another extension of time to finalize a settlement on almost €200 million of seized Abacha loot.
I had approached the court making recommendations for the best interest of Nigerians because the Buhari regime is irredeemably compromised on the Abacha loot issue and Nigeria stands to lose roughly €200million (N150Billion) due to this conflict of interest.
This is too massive an amount for Nigeria who’s current deficit budget is one trillion per month in 2023.
I could no longer watch this travesty unfold and have asked the court to share the money to Nigerian citizens if the Nigerian government will not act decisively to reclaim it or in the alternative adjourn the case till a new government is in place that will serve Nigerians credibly and creditably
Compromised cast of characters
The Government of Nigeria is irredeemably compromised and incapable of robustly representing her citizens’ interest in this matter.
Particulars of compromise and or conflict of interest:
A. Nigeria’s current President Gen. Buhari served under Gen. Abacha heading a Trust Fund that was indicted for mind boggling corruption at the same time the defendant funds were looted. Gen. Buhari denies that Gen. looted any funds and is beholden to him even now.
B. Nigeria’s current Attorney General was counsel to Gen. Abacha’s family at the very time billions of dollars, including these defendant funds, were looted from Nigeria. He is seriously conflicted and should have recused himself from all matters pertaining to his personal clients as a matter of honor.
Continuing crimes against US law and impunity
The current regime of Gen. Buhari continues to violate human rights and repress critics and activists. Of particular concern was the action of the Nigerian embassy in Washington to undermine the US Congress by retaliating and intimidating Amicus for testifying in congressional hearings about the current human rights situation in Nigeria.
There must be consequences for this brazen affront on US law and democracy by such crass criminality and foreign interference in US governance. Gen. Abacha abused the US by using her as a transit and repository of stolen goods just as Gen. Buhari is yet again abusing the US by congressional witness intimidation. Incidentally, both Gen. Abacha and Gen. Buhari’s rule have seen unprecedented mass exodus of Nigerians abroad due to their atrocious governance. Countless asylees and refugees are currently in US and UK, amongst others, as a result.
The Bagudus
Claimant will not be prejudiced in anyway as he continues to draw and live on the proceeds of his brother’s crimes. While his annuity amount is not known, the per capita GDP of his fellow Nigerian citizens is $2000 while that of the USA is $69,000. Therefore he is not doing badly.
Further, Gov Bagudu has been exceptionally fortunate to have risen to a lucrative governorship in Nigeria – not having been disqualified by a criminal conviction – where he has had unbridled access directly himself to KebbiState’s “Security Votes” for eight years. If Mohammed Abacha wins gubernatorial elections in a few weeks, he too will have direct access to more “Security Votes.”
This is possible because they never faced criminal sanction. Indeed, Nigeria’s top two presidential contenders in next months’ elections have well-documented money laundering records and forfeiture in America too and would similarly have access to “Security Votes” like Abacha.
One, quite bizarrely, who forfeited drug money to the US, is now reported to have had his children launder millions again into the US after he held gubernatorial office with “Security Votes.”
This court, and DOJ, must send a stark warning against impunity to Kleptocrats and Lootocrats that America is not the new Switzerland! Even Switzerland returned the Abacha loot to Nigeria instead of to the looters, ironically.
An example of a genuine victim is the spouse of disgraced CIA agent Hansen convicted of espionage for Russia. His pension was provided to his wife who was an innocent victim unwitting of her husband’s treachery. She wasn’t rewarded with the loot Hansen obtained from betraying his country to the Russians.
Appropriate rulings
Accordingly the Court is encouraged to rule as follows:
(i) Dismiss Claimant Bagudu’s case as an unenforceable/illegal Trust for being proceeds of crime, annul the Trust under the Cy-près doctrine and award the funds and redirect it in trust for the Nigerian people or
(ii) Uphold Claimant Bagudu’s claim in part and render to him his existing annuity for life with no further addition (maintain status quo) and repurpose the balance for victims of Gen. Abacha, Terrorism and Nigerian security forces under the court’s inherent Cy-près powers or
(iii) Accept the Parties’ proposed settlement in part, as it relates to a miniscule or reasonable allowance to Claimant, on condition that it is modified to award the balance of funds into a compensation fund to be administered by court-appointed Special Master under the court’s inherent Cy-près authority and distributed to victims of Abacha, Terror and state brutality or
(iv) Reject the Parties’ proposed settlement for being inconsistent with US and UK law and public policy as well as relevant international conventions and award the entire funds, less parties’ legal expenses, to acourt-appointed special master for distribution to victims of Abacha, Terror and state brutality under the court’s inherent Cy-près powers.
The work of a court-appointed Special Master or Trustee is made easier by the existence of the following existing mechanisms for victim identification and disbursement:
- – Victims of Abacha and other human rights abuses. These can be found in the report of Nigeria’s Federal post-dictatorship Truth and Reconciliation Commission known as the Justice Oputa Panel. This would provide relief to historical victims nationwide prior to year 2000. Victims exiled to US can submit claims directly to the Special Master.
- – Victims of State brutality. These can be found in the reports of over 30 Nigerian States’ judicial commissions of inquiry into police brutality following the famous #endSARSprotests of 2020. This would provide relief to recent victims across the states up to year 2020 and could be administered in concert with a reputable human rights organization like Amnesty International.
- – Victims of Terrorism. These can be found in recent reports of organizations providing humanitarian assistance across Nigeria. It will go until 2022 and reach victims across the nation. It could be administered in partnership with the Victims Support Fund in Nigeria.
(v) The court could continue the stay sine die until a new president is elected in Nigeria and an AG appointed whose fealty is unquestionably to the Nigerian people. Presidential elections hold next month and Gen. Buhari exits office on May 29th, 2023.
Dated: 1/20/2023
Respectfully submitted,
Emmanuel Ogebe
Amicus Curiae
Kindly see the briefs recently filed attached:
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, Plaintiff,
VS.
Civil Action No. 13-1832 (JDB) ALL ASSETS HELD IN ACCOUNT NUMBER 80020796, IN THE NAME OF DORAVILLE PROPERTIES CORPORATION, AT DEUTSCHE BANK INTERNATIONAL, LIMITED IN JERSEY, CHANNEL ISLANDS, AND ALL INTEREST, BENEFITS, OR ASSETS TRACEABLE THERETO, et al., Defendants.
MOTION FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF
Now comes Movant with a motion seeking leave to file a brief in the above matter to aid the court in the resolution of this intractable litigation. Movant also respectfully seeks leave to file said Amicus Brief out of time due to exigent circumstances. Pursuant to above, Movant/Amicus states thus:
- In November, 2022, Plaintiff, the United States of America, and Claimant, Ibrahim Bagudu filed a joint status report asking the Court to provide the parties additional time to complete their settlement, in continuation of a multi-year stay currently in effect, in a decade-long litigation over a quarter century old crime. This is indicative of the complexity of this multi-national matter which this Amicus brief attempts to attenuate.
- Parties also advised that “Plaintiff has retained UK counsel and conferred on multiple occasions with its government counterparts in the UK and Federal Republic of Nigeria, while Claimant has been consulting with UK counsel for other impacted parties (i.e. counsel for Governor Abubakar Bagudu, the Blue Holdings Companies, and beneficiaries of the Blue Family
Trusts).” This is indicative of the existence of multifarious non-party impacted actors whose interests are at stake – some of whom this Amicus brief will highlight. - Movant/Amicus is a Barrister and Solicitor of the Supreme Court of Nigeria of over 30 years good standing and the first to be licensed as a Special Legal Consultant on Nigeria by the Washington DC Bar two decades ago. As a top US Nigeria Affairs expert who has testified in the US and Canadian parliaments and courts as well as advised UK parliament amongst others, Movant/Amicus is eminently placed to speak as an Amicus Curiae. Amicus has testified and made recommendations about the defendant funds in the US Congress and also co-drafted several bills on this subject.
- Movant/Amicus was abducted, unlawfully detained and tortured by late Nigerian military dictator Gen. Abacha’s killer squad as a young human rights lawyer and prodemocracy activist forcing his exile to USA over 25 years ago. As a victim of General Abacha’s brutal misrule, Movant/Amicus is amongst the class of victims of horrendous human rights abuses who never got justice or compensation and therefore have an interest in the disposition of the “Abacha loot” (aka the defendant assets) in this case. An Amicus brief gives voice to marginalized victims.
- The defendant funds were looted from the Federal Republic of Nigeria and her citizens but the interests of the citizens of Nigeria have not been assiduously represented in this matter due to non-cooperation by the Nigerian government in the forfeiture process. An Amicus brief will help elucidate and mitigate this anomaly.
- The Court finds itself in the unenviable conundrum of being asked to return millions looted from a poor Africa nation, which is the poverty capital of the world, to those behind what was at the time the largest grand larceny in the world – a quarter century later. An Amicus brief will help ameliorate this travesty and unburden the court.
- This Amicus brief provides relevant facts, perspective, moral clarity and critical guidance for the court to effect optimal justice in resolving this case, speedily and equitably, that have not been previously canvassed.
- Amicus has not been funded by any party or any other in this filing nor received drafting assistance. Amicus does not side with either party as Amicus brief is not predicated on the numerous filings in the docket over the past decade. Rather it is premised largely on expertise and monitoring of these issues over time.
- Parties are not prejudiced by this motion as the matter has been in a state of animated suspension for several years and Claimant continues to draw an annuity from the defendant funds regardless, from all accounts.
- The proposed Amicus brief is annexed hereto and is within the word count limit.
Whereof, Movant/Amicus, respectfully asks that the court grant leave for this Amicus brief to be filed and that it be deemed filed timeously pursuant to Rule 29.
AMICUS BRIEF
ISSUES BEFORE THE COURT: AN INVITATION TO LEGAL ABSURDITIES
At issue before this court are several near improbable propositions:
A. that crime does pay and that, from the grave, a deceased African dictator continues to impoverish his people – a quarter century after. This honorable court has been invited to aid and abet this travesty by Claimant which is unconscionable.
For historical context, granting the claim of Claimant Bagudu is the equivalent of infamous Philippine ex-First Lady Imelda Marcos seeking a return of her notorious shoe collection purchased with wealth looted from her country or even worse, Hitler’s Goebbels seeking to reclaim World War II looted Jewish artifacts for the benefit of the Nazis’ kin. This is not the right trajectory of the universe’s arc of justice and we urge the court not to dignify this ignominy.
B. the bizarre proposition that the government of Nigerian has proven singularly incapable of acting in the best interest of its citizenry. This is akin to a Custodian refusing to identify and reclaim recovered stolen property for his employer.
C. that USA is a safe haven for illicit funds where African dictators and global malefactors can count on retrieving their squirrelled nest eggs decades after the crime. This offends against public policy, law and order which Plaintiff is duty-bound to uphold.
The principle that crime doesn’t and mustn’t pay is fundamental to legal jurisprudence universally and a bad precedent of rewarding the perpetrators and ignoring the victims should not be created.
We believe that the dictum of this court in an earlier memorandum ruling on the motion to dismiss is appropriate here:
“Nevertheless, dismissing a case because of international comity concerns is inappropriate when doing so “ ‘would be contrary to the policies or prejudicial to the interests of the United States.’ ” One Gulfstream, 941 F.Supp.2d at 10 (quoting Pravin Banker, 109 F.3d at 854 ); see also United States v. Portrait of Wally, A Painting By Egon Schiele, No. 99–cv–9940, 2002 WL 553532, at *10 (S.D.N.Y. Apr. 12, 2002) (“Even when there is true conflict with the laws of a foreign nation, United States courts will not yield in the name of comity if doing so conflicts with the law or policy of the United States.”).””See Dkt 79.
It is explicit that to compromise this action in circumstances contrary to US policy is untenable. We daresay this applies here as settling this suit by rewarding the perpetrators “conflicts with…law or policy” of the US and is “prejudicial to interests” of the US to protect itself from illicit foreign financial flows.
In that light, we are opposing any settlement by the Parties that doesn’t include the victims of Gen. Abacha who have twice been betrayed by their government, firstly, in the theft of these funds and, secondly, in the failure to recover Nigeria’s looted funds.
COMPROMISED CAST OF CHARACTERS
The Government of Nigeria is irredeemably compromised and incapable of robustly representing her citizens’ interest in this matter.
Particulars of compromise and or conflict of interest:
A. Nigeria’s current President Gen. Buhari served under Gen. Abacha heading a Trust Fund that was indicted for mind boggling corruption at the same time the defendant funds were looted. Gen. Buhari denies that Gen. looted any funds and is beholden to him even now.
B. Nigeria’s current Attorney General was counsel to Gen. Abacha’s family at the very time billions of dollars, including these defendant funds, were looted from Nigeria. He is seriously conflicted and should have recused himself from all matters pertaining to his personal clients as a matter of honor.
This issue is so serious that we elaborate further with excerpts of Mohammed Sani Abacha’s reported court testimony in the trial of Nigeria’s former Attorney General Adoke (who was previously referenced in this court Dkt117) :
Former AG Adoke, “previously alleged that the Abacha family was using the EFCC to persecute him because they believed he did not allow them to profit from the OPL 245 sale.
EFCC denied the allegation at the time but has now presented Abacha as the prosecution witness in the case of alleged fraud filed against Adoke, the former AGF, Aliyu Abubakar, a businessman, and Rasky Gbinigie, company secretary of Malabu…
Bala Sanga, the EFCC prosecutor, presented Abacha as the only witness he brought to the court before Justice Abubakar Kutigi.
Sanga: Tell the court your full name.
Abacha: Mohammed Sani Abacha, also known as Mohammed Sani.
Sanga: What do you do for a living?
Abacha: I am a businessman.
Sanga: You know the defendants in the suit.
Abacha: Yes.
Sanga: Can you inform to the court the capacity and circumstances you know them?
Abacha: 1st defendant (Adoke) was company secretary of Kabo Airlines. He is former attorney-general of the federation. I paid him a courtesy visit when he became AGF and informed him of my problems with OPL 245 and Malabu Oil and Gas. He asked me to officially write him and indicate all the issues and problems I had. I did and submitted in 2010.
Sanga: What’s the basis of your appearing in court?
Abacha: Based on being a member and shareholder of Malabu Oil and Gas which was incorporated in 1998 to seek allocation of oil prospecting licence with the petroleum ministry. OPL 214 and 245 were subsequently granted to Malabu. At the time of granting the licences, the shareholders were Mohammed Sani, 10 million shares; Kweku Amafegha, six million shares; and Wabi Hassan, four million shares; Kweku was a pseudonym of Chief Dan Etete and Hassan was a pseudonym of Hassan Adamu (Wakilin Adamawa).
Sanga: When did you become aware of irregularities in company documents?
Abacha: After the death of my father (in 1998), I was handed some documents and I was made aware of alterations and changes in Malabu. Subsequently, I gave a power of attorney to late AVM Mukhtar Babagana to kindly oversee the affairs of Malabu. He travelled to London to see Chief Dan Etete who had fled the country then. It became impossible for him to see him (Etete). Subsequently, I sought the help of my lawyer, Abubakar Malami (the current attorney-general of the federation), to go to CAC and conduct a search.
The clear and concerning implication of this is that, not only was current Attorney General Malami (Party to this present matter as Nigeria’s Chief Law Officer) counsel to Mohammed Abacha (Part Party to this present matter as conspirator in the looting/laundering of defendant funds) at the material time of these crimes but that currently as AG, he is prosecuting his predecessor to aid the Abachas over another corruption crime they perpetrated contemporaneously. In other words, the Attorney General who failed to cooperate in the recovery of the defendant Abacha loot for Nigeria in this case, is simultaneously prosecuting his predecessor Attorney General by cooperating with the Abachas in their effort to recover other loot – an effort first started as clients in his private practice!
C. More recently, Nigeria’s AG was the anointed successor to Gov Bagudu, who laundered the Abacha loot, as Kebbi state governor until public outcry forced him to quit next month’s elections. Governors generally handover to handpicked stooges who will do their bidding in Nigeria’s corrupt “Godfather” political culture.
D. Gov Bagudu is a highly influential governor in Gen. Buhari’s ruling party APC. It is little wonder that the Buhari administration is unable or unwilling to cooperate against Bagudu in this forfeiture action because of the incestuous historical and current ties.
AN INFEASIBLE AND ILLEGAL “TRUST” OBJECTIVE
Apart from logical, moral and ethical incongruities aforementioned, there are even more legal constraints as well.
The Cy-près doctrine originated in the law of Trusts context, where courts would reinterpret the terms of a trust when literal application of those terms resulted in the dissolution of the trust because of impossibility or illegality.
CLAIMANT’S IMPEDIMENT
In the instant case, the trust established by Governor Bagudu, ostensibly for the benefit of his brother, the Claimant, was premised on the defendant funds looted from the peoples of the nation of Nigeria. It is as such a “criminal trust”, or “crime trust”, so to speak.
This court had asked the parties to address if:
- Bagudu has standing based on annuity 2. Monetary limit 3. Confers standing on others. (See Dkt 163.)
The Trust component of this case is palpable and thus Cy-près doctrine applicable.
PLAINTIFF’S IMPEDIMENT
Secondly the proposed settlement of the forfeiture action by granting to Gov. Bagudu’s brother tens of millions of Euros is infeasible because of illegality. It is against US and international law and universal criminal jurisprudence to reward the perpetrators of a crime with the loot.
The 2020 trilateral repatriation agreement, states in Article 3.4. “None of the Forfeited Assets may be disbursed, expended or used for the benefit of any of the alleged perpetrators or participants in the offenses or related conduct giving rise to the forfeiture …; the family members, heirs, assigns, successors, privies, corporations, trusts, or legal entities of such alleged perpetrators or participants; …”
It is highly noteworthy that this court asked the parties to address it on the “impact of the trilateral agreement to repatriate” $300 million in 2020 on this proceedings (See Dkt #333.) The short answer is that any settlement that forks over any money to the Bagudus, makes a mockery of the express terms and prohibitions above.
Those funds already returned to Nigeria, spurred critical inquiries in an April 1, 2020 letter to DOJ from Senator Charles Grassley reporting corrupt contractor violations, an April 15, 2020 letter from Reps. Steve Chabot and Christopher Smith as well as Amicus Ogebe’s discovery of nepotism by a top Buhari official in the $300 million fund management.
Consequently, we believe settling this action in this scenario is contrary to US policy and “conflicts with…law or policy” and is “prejudicial to interests” of the US as this court already held re the comity argument. We submit that since, as this court previously affirmatively cited, “Even when there is true conflict with the laws of a foreign nation, United States courts will not yield in the name of comity if doing so conflicts with the law or policy of the United States,” (United States v. Portrait of Wally, A Painting By Egon Schiele, No. 99–cv–9940, 2002 WL 553532, at *10 (S.D.N.Y. Apr. 12, 2002)) then when comity of nations, in this case the UK and UN policies and protocols on repatriation are consistent with the US policy, DOJ should not yield to the contrary either.
NIGERIAN GOVERNMENT’S IMPEDIMENT
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Thirdly, the non-cooperation of the Nigerian government in the process of forfeiting the defendant assets, makes it impossible for the funds to be returned to the Buhari regime. If US law disallows a reluctant victim, a foreign sovereign at that, from enjoying the fruits of forfeited assets, how much more malfeasant parties and their proxies?
BRITISH GOVERNMENT’S IMPEDIMENT
DOJ’s proposed settlement contravenes two basic principles of U.S. law and policy: (1) not to return laundered funds to corrupt persons (and their close family members), and (2) to compensate victims of torture but the settlement also goes against law and policy of the UK – which froze these funds for the U.S.- and even relevant UN Conventions on repatriations.
The UK is a signatory to the United Nations Convention Against Corruption (UNCAC) and says it places “great importance on the recovery and return of the proceeds of corruption. The UK is mindful of its obligations under international law, including UNCAC, and the principles for transparent and accountable asset return which were endorsed at the Global Forum for Asset Recovery in 2017.”
In January 2022, the UK published its first ever Framework for Transparent and Accountable Asset Return, to ensure “consistency, transparency and accountability in the UK’s process for returning assets.”
The UK bilateral MoU of 2016, seeks transparent and accountable return of proceeds of crime in line with Article 57 of the UN Convention Against Corruption and states that the Federal Government of Nigeria has “primary responsibility for determining the use” of any returned funds.
The UK also indicates that basically all future repatriations will go to specified infrastructure projects (Clause 7) and bars any past perpetrators of the crime from receiving the monies (Clause 8.) Thus again, Parties’ proposed settlement in one fell swoop makes mockery of the US and UK government’s policies on this subject. Concomitantly, the current litigation would not allow Gov Bagudu or kin to reclaim any of these monies in the UK either.
Therefore the next best beneficiary or “residual legatee” so to speak of these funds would be the people of Nigeria – where their government has failed to act proactively as a claimant.
OTHER IMPACTED NON-PARTY ENTITLED ENTITIES – ABACHA VICTIMS et al
In the absence of other substantial claimants, the closest possible option for making viable the disposition of these assets would be distribution to identifiable Nigerian people.
The Parties report settlement progress however we are concerned that they reached an agreement to return laundered funds to the proxy of the same person who DOJ alleges embezzled the funds for Abacha, but at the same time, DOJ has refused to discuss funds for victims of political torture by the same corrupt Nigerian regime.
Gen. Abacha was most ignoble primarily for two cardinal evils – for his brutality (torture) and his larceny (money laundering). Before the court, via this Amicus, is the intersection of the twain – a victim of the former meets the vestiges of the latter – strange fruit and byproducts of a tyrant long after his death.
(A) TORTURE
- Background: General Sani Abacha was the corrupt dictator of Nigeria from 1993 until his death in 1998. State Department Human Rights Reports record that his regime systematically murdered and also tortured activists and citizens including Amicus Curiae Ogebe.
Gen. Abacha was notorious for human rights atrocities and many Nigerians sought asylum in the UK and US at the height of his ruinous reign. Gen. Abacha’s unspeakably murderous, repressive and corrupt regime turned him and Nigeria into a globally-sanctioned pariah following the summary execution by hanging of minority and environmental rights activists (the Ogoni nine) – civilians who were tried by a military tribunal.
Human rights activists who continued to speak out against these atrocities and others were arrested or abducted, tried or tortured and exiled from the bloodthirsty Abacha regime. This Amicus Curiae is the most notable human rights lawyer in Nigeria’s capital Abuja who was persecuted by Abacha’s military junta and ultimately exiled to the United States.
- CASE STUDY OF A VICTIM OF TORTURE
This Amicus is filed by a victim of horrific human rights abuses, including abduction and torture, by the horrendous regime of Gen Abacha, purloiner of the defendant funds.
SUMMARY OF FACTUAL BACKGROUND
In June 1996, following his call for a judicial inquiry into the assassination of a prominent female pro-democracy activist (Kudirat Abiola), Amicus Curiae Ogebe was abducted by presidential guards of General Abacha and “disappeared” into the dictator’s residence where he was subjected to torture and interrogation – the only activist in Nigeria known to have been personally and directly so maltreated in the presidential villa.
He was tortured and interrogated by the following Nigerian security agencies amongst others –
- the Presidential Guards Brigade,
- the State Security Service (SSS),
- Nigerian Army Intelligence Corp,
- the Defense Intelligence Agency,
- the Strike Force Presidential BGs (Body Guards) on orders of the Chief Security Officer to the Commander-in-Chief Abacha (CSO to C-in-C) inter alia.
Amicus Curiae Ogebe was released later that summer on condition that he must never again engage in human rights advocacy as a result of which he could no longer practice law. Indeed his home had been ransacked and his files, records and belongings carted away and never returned – effectively destroying his law practice.
Secondly, Gen. Abacha ordered that Amicus’ father (a serving Federal Court of Appeal Justice then who had recently ruled against Gen. Abacha’s regime in favor of a jailed democratic presidential contender) personally collect him from detention and issue a written bond of responsibility for his conduct.
Despite traveling abroad to recuperate and returning to take a job with an international organization in Nigeria, claimant remained under surveillance and threat in Nigeria until he finally went on exile barely five months after returning from England – to protect himself and his family.
Amicus Curiae Ogebe has remained involved with Nigerian human rights and suffered persecution from the current Nigerian ruler Gen. Muhammadu Buhari, a brutal ex-military dictator himself (who incidentally served, and was implicated in corruption, during Gen Abacha’s obnoxious regime) for testifying in US Congress about Buhari’s atrocities.
A portion of the forfeited funds should be set aside to establish an independently administered claims fund for the benefit of persons who were victims of political torture by the Abacha regime. Doing so would be consistent with international norms against torture and on seeking justice for victims. Compensation, relief and restitution against the assets looted by Gen Abacha would be a lofty and just resolution. Having been specifically abducted and tortured in Nigeria’s presidential villa – the only human rights activist known to have been favored with the focused attention and sadistic expertise of Gen Buhari’s specially-trained death squad – Amicus Ogebe is honor-bound to voice this out on behalf of other victims for resolution as an international human rights issue.
(B) Money Laundering
Since 2013 the Department of Justice has litigated “an international conspiracy to launder proceeds of corruption in Nigeria during the military regime of General Sani Abacha” (Complaint, ¶ 1) and that Bagudu reportedly laundered the money in part by setting up a trust fund for which his brother, Ibrahim Bagudu, (Claimant) was a beneficiary.
Still, Parties reached a settlement agreement, after several years of failed talks that is at once perplexing even without knowledge of the terms.
Since the core claim of the Claimant is rooted in Trust law, we believe that the doctrine of Cy-près is eminently applicable and equitable in resolving this case, regardless how meretricious and meritless his defense.
THE CY-PRÈS SOLUTION
The purpose of the Cy-près doctrine is to allow courts the ability to enforce the wishes outlined in certain legal documents and in certain accounts as closely as possible to the original interpretation. The doctrine comes into play in order to avoid nullifying the document or account, whether it’s a trust or a will.
There are instances where certain legal documents or account setups, such as wills and trusts, can no longer be interpreted or distributed. At this point, it is considered null and void. This is where Cy pres commonly comes into play. Cy pres allows courts to make their own interpretation and fulfill the wishes outlined as closely as possible. Cy pres is French for “as close.” It’s short for the French term “cy pres comme possible”, which literally means “as close as possible.”
(A) REPURPOSING THE TRUST
In a classic nineteenth century example, a US court repurposed a trust that had been created to abolish slavery in the United States to instead provide charity to poor African-Americans.
Similarly in the present case, a trust with money stolen from Nigeria’s national security funds for the benefit of the looter’s brother can be repurposed for the victims of insecurity or corruption in Nigeria. The Trust seeks stolen money meant for 200 million Nigerians for the benefit of one Individual – the Claimant (absent deceased Abacha.) The Court has inherent jurisdiction to annul the trust altogether for illegality and non-enforceability, as a proceed of crime, or in the alternative, it can repurpose the Trust to serve the Claimant and as many Nigerian citizens as possible.
(B) REDIRECTING THE TRUST
Additionally, the California Supreme Court endorsed the use of Cy-près or “fluid recovery” mechanism in class action settlements in 1986, to distribute proceeds to a “next best” class of consumers, and many other courts have gradually adopted the procedure.
So also in this case, when the government of Nigeria fails to take primary responsibility as claimant, we respectfully submit that the next best class of claimants would be citizens of Nigeria who have suffered some element of state failure or torture etc.
Many states have enacted the Uniform Trust Code (“UTC”). The UTC codifies that cy-près applies only to charitable trusts where the original particular purpose of the trust has become impossible or impracticable, and the terms of the trust do not specify what is to happen in such a situation. The UTC provides that “if a particular charitable purpose becomes unlawful, impracticable, impossible to achieve, or wasteful…the court may apply cy-près to modify or terminate the trust…in a manner consistent with the settlor’s charitable purposes”.[6]
The UTC also contains a cy-près rule for noncharitable trusts. It provides that “[t]he court may modify the administrative or dispositive terms of a trust or terminate the trust if, because of circumstances not anticipated by the settlor, modification or termination will further the purposes of the trust”.
CONCLUDING ANALYSIS ON THE PROXIMATE JUSTICE AND EQUITY OF THE CASE
Brutal dictator Gen Abacha was notorious primarily for two cardinal evils – brutality and larceny. Before the court lies an opportunity for the intersection of the twain – victims of the former meet the vestiges of the latter – as the arc of the universe tends towards poetic justice for a tyrant long after his death. If it is true that the evil that men do lives after them, then the evil that men do should give after them – good!
Below are scenarios of what substantial justice would look like:
A. PROXIMATE JUSTICE FOR ABACHA et al
Abacha was never held accountable for any of his atrocities in Nigeria criminally or civilly. Nigeria has no history of holding its rulers liable for misconduct and victims are left floundering in an endless sea of injustice. Indeed Abacha’s son and even Gen. Abacha’s feared Chief Security Officer (who was convicted of the assassination of the female activist Kudirat Abiola over who’s protest Amicus Ogebe was arrested) have wangled their way out of facing justice and are now involved in politics running for Governor and President of Nigeria.
The strategic position of Abacha the Abuser’s assets in a neutral US Court free from manipulation and intimidation by the Nigerian government makes for an ideal jurisdictional juxtaposition for justice for victims and his accomplices. Nigeria’s corrupt ex-military dictators have a way of taking care of themselves well.
B. PRIOR US FORUM TRIAL
The sole notable action to hold Nigeria liable for Gen. Abacha’s atrocities occurred here in the US when some activists (including the daughter of the murdered female activist Kudirat Abiola over who’s protest Amicus Ogebe was abducted) sued the Army General who succeeded Abacha upon his demise. The action in US District Court in Chicago was ultimately settled by a successive elected Nigerian government (but not the Abacha family) 10 years after his death. A victim compensation fund or Cy-près order would not be vicariously against a military successor to Gen Abacha or the Nigerian government but directly against his looted assets for his heinous actions and abuse of victims.
C. PURPOSE OF FUNDS: “NATIONAL SECURITY”
Some of the funds were fraudulently filched under the opaque mantra of “national security”. Yet rather than securing the nation, security agencies were securing Dictator Abacha by abducting and torturing the Amicus and others who protested his perfidy and misgovernance.
As this court aptly summarized, “The government alleges that the funds in defendant investment portfolios are traceable to…the “Security Votes Fraud,” which began when, between January 1994 and June 1998, General Abacha, National Security Advisor Gwarzo, and others “stole more than $2 billion from Nigeria by fraudulently and falsely representing that the funds were to be used for national security purposes.” Id. ¶ 25. The theft of funds was allegedly committed by General Abacha and Gwarzo when they “executed false national security letters [referred to as “security votes letters”] directing the withdrawal of funds from the [Central Bank of Nigeria].” Id. Gwarzo, “at General Abacha’s direction,” prepared these security votes letters and addressed them to General Abacha “purporting to request millions of U.S. dollars, British pounds sterling, and Nigerian naira to address unidentified ‘emergencies’ that threatened Nigeria’s national interests.” Id. ¶ 26.
Instead of using the funds for national security purposes, “the stolen money was transported out of Nigeria and deposited into accounts controlled by General Abacha’s associates, including [his son] Mohammed Abacha and Bagudu.” Id” (emphasis added.)
A Cy-près award for victims of continuing police brutality would be just as well as victims of insecurity in Nigeria – one of the world’s most terrorized countries that sparked global campaigns of #bringbackourgirls and #EndSARS in 2014 and 2020 for both victim classes.
D. POSTHUMOUS REDEMPTION AND RESTITUTION
Curiously, the death of Gen. Abacha gives him an opportunity from the grave to make atonement for his misdeeds in life through this case. Like Munitions Magnate Nobel’s premature obituary prompted him to endow what is now the world’s noblest honor, in an effort to burnish his legacy, Abacha has in death a shot at redemption. Rather than continue bequeathing a legacy of corruption to another generation, the optimal, nay, the decent and only thing to do is to render justice to his victims by disbursing this assets in this wise.
E. CONTINUING CRIMES AGAINST US LAW AND IMPUNITY
The current regime of Gen. Buhari continues to violate human rights and repress critics and activists. Of particular concern was the action of the Nigerian embassy in Washington to undermine the US Congress by retaliating and intimidating Amicus for testifying in congressional hearings about the current human rights situation in Nigeria.
There must be consequences for this brazen affront on US law and democracy by such crass criminality and foreign interference in US governance. Gen. Abacha abused the US by using her as a transit and repository of stolen goods just as Gen. Buhari is yet again abusing the US by congressional witness intimidation. Incidentally, both Gen. Abacha and Gen. Buhari’s rule have seen unprecedented mass exodus of Nigerians abroad due to their atrocious governance. Countless asylees and refugees are currently in US and UK, amongst others, as a result.
F. THE BAGUDUS
Claimant will not be prejudiced in anyway as he continues to draw and live on the proceeds of his brother’s crimes. While his annuity amount is not known, the per capita GDP of his fellow Nigerian citizens is $2000 while that of the USA is $69,000. Therefore he is not doing badly.
Further, Gov Bagudu has been exceptionally fortunate to have risen to a lucrative governorship in Nigeria – not having been disqualified by a criminal conviction – where he has had unbridled access directly himself to Kebbi State’s “Security Votes” for eight years. If Mohammed Abacha wins gubernatorial elections in a few weeks, he too will have direct access to more “Security Votes.”
This is possible because they never faced criminal sanction. Indeed, Nigeria’s top two presidential contenders in next months’ elections have well-documented money laundering records and forfeiture in America too and would similarly have access to “Security Votes” like Abacha.
One, quite bizarrely, who forfeited drug money to the US, is now reported to have had his children launder millions again into the US after he held gubernatorial office with “Security Votes.”
This court, and DOJ, must send a stark warning against impunity to Kleptocrats and Lootocrats that America is not the new Switzerland! Even Switzerland returned the Abacha loot to Nigeria instead of to the looters, ironically.
An example of a genuine victim is the spouse of disgraced CIA agent Hansen convicted of espionage for Russia. His pension was provided to his wife who was an innocent victim unwitting of her husband’s treachery. She wasn’t rewarded with the loot Hansen obtained from betraying his country to the Russians.
APPROPRIATE RULINGS
Accordingly, the Court is encouraged to rule as follows:
- Dismiss Claimant Bagudu’s case as an unenforceable/illegal Trust for being proceeds of crime, annul the Trust under the Cy-près doctrine and award the funds and redirect it in trust for the Nigerian people or
- Uphold Claimant Bagudu’s claim in part and render to him his existing annuity for life with no further addition (maintain status quo) and repurpose the balance for victims of Gen. Abacha, Terrorism and Nigerian security forces under the court’s inherent Cy-près powers or
- Accept the Parties’ proposed settlement in part, as it relates to a miniscule or reasonable allowance to Claimant, on condition that it is modified to award the balance of funds into a compensation fund to be administered by court-appointed Special Master under the court’s inherent Cy-près authority and distributed to victims of Abacha, Terror and state brutality or
- Reject the Parties’ proposed settlement for being inconsistent with US and UK law and public policy as well as relevant international conventions and award the entire funds, less parties’ legal expenses, to a court-appointed special master for distribution to victims of Abacha, Terror and state brutality under the court’s inherent Cy-près powers.
The work of a court-appointed Special Master or Trustee is made easier by the existence of the following existing mechanisms for victim identification and disbursement:
- Victims of Abacha and other human rights abuses. These can be found in the report of Nigeria’s Federal post-dictatorship Truth and Reconciliation Commission known as the Justice Oputa Panel. This would provide relief to historical victims nationwide prior to year 2000. Victims exiled to US can submit claims directly to the Special Master.
- Victims of State brutality. These can be found in the reports of over 30 Nigerian States’ judicial commissions of inquiry into police brutality following the famous #endSARS protests of 2020. This would provide relief to recent victims across the states up to year 2020 and could be administered in concert with a reputable human rights organization like Amnesty International.
- Victims of Terrorism. These can be found in recent reports of organizations providing humanitarian assistance across Nigeria. It will go until 2022 and reach victims across the nation. It could be administered in partnership with the Victims Support Fund in Nigeria.
- The court could continue the stay sine die until a new president is elected in Nigeria and an AG appointed whose fealty is unquestionably to the Nigerian people. Presidential elections hold next month and Gen. Buhari exits office on May 29th, 2023.
Dated: 1/20/2023
Respectfully submitted,
Emmanuel Ogebe
Amicus Curiae
5214 Astor Pl SE
Washington DC 20019
JusticeforJos@gmail.com
I certify that this is for electronic service to parties on the docket via the Clerk of Court. Read more.
