By Emmanuel Ogebe
Emmanuel Ogebe
As the first person to be admitted to the Washington DC Bar as a Special Legal Consultant on Nigeria in 2003, I have, for over a decade and a half, studied, followed and been consulted on a plethora of litigations, allegations, prosecutions and situations pertaining to Nigeria in the global setting.
I have a few perspectives on the Air Peace CEO’s indictment in USA from a comparative analysis viewpoint situated in the context of other cases. I agree our laws in the US are overly sensitive to “paper” breaches that might not be an issue elsewhere but that is what it is.
We must remember that President Clinton was impeached for lying on oath and not for his affair with Monica Lewinsky for which Clinton was impeached and his law license was suspended under a plea deal.
Accordingly, I have just six scenarios to compare:
1. How different is Onyema’s US plane purchase deal from Buhari’s US plane purchase deal of the Tucanos? Gen. Buhari took unauthorized and unappropriated funds from Nigeria and paid the US for airforce jets.
His letter to the NASS admitted as follows “In the expectation that the National Assembly would have no objection to the purchase of this highly specialised aircraft, which is critical to national security, I granted anticipatory approval for the release of US$496,374,470.00. This was paid directly to the treasury of the United States Government.”
The issue here is that the US is now aware that the half billion dollars was unlawfully taken from Nigeria. Even Trump cannot unilaterally spend unappropriated money. Congress did not approve his budget and that was why we had two shutdowns of the US Government worldwide.
Only certain essential services are exempted from shutdown. It would interest Nigerians to know for instance that visa fees they pay every day to the US embassy are allowed to be used to keep the US government running.
With a 50% failure rate and millions of applicants paying multiple times to either reapply after denial or change appointment dates, the US embassy is raking in millions of dollars from Nigerians. Nigeria is one of America’s most lucrative consular posts in the world!
The bottom line is that if the US Congress does not approve a budget or pass a Continuing Resolution, the government shuts down. Trump cannot take money from the treasury to build a wall then write to Congress for so-called “anticipatory approval.” So Buhari illegally transferred the funds to America.
Secondly, the amount he transferred to the US far exceeds the actual market value of the airplanes. Minabere Ibelema wrote in the Punch “the $500 million price tag for the 12 jets, (is) an “inexplicably high cost,” as Nigerian historian Max Siollun described it in a blog for the US magazine Foreign Policy…the average cost of the Embraer-built jet fighter is $10 million per plane..the US government ordered six …at the cost of $18 million each.
The total purchase contract was $174 million “and includes long lead parts, maintenance spares and cost of ferrying the aircraft,” according to FlightGlobal. This comes to $29 million per jet.
Even this bloated price is still dwarfed by the $41.7 million price tag for each of the 12 jets sold to Nigeria. What could account for the 43 percent price difference?” (The Tukano as Trojan May 20, 2018).
2. What about the governor of Kebbi state accused by the US of laundering the Abacha loot abroad in the ‘90s?
He has twice been elected governor under the ruling APC despite the long-running money laundering and assets forfeiture case against him in USA which renders him ineligible for public office in Nigeria. The Department of Justice’s Kleptocracy project called it the largest assets forfeiture in their history at almost half a billion dollars.
Through the Kleptokracy Asset Recovery Initiative, the United States fights against corruption to ensure that corrupt leaders cannot seek a safe haven for their stolen wealth in and that stolen assets are recovered and returned to those victimized by corruption. In 2010, the Kleptocracy Asset Recovery Initiative spearheaded by the DOJ’s Asset Forfeiture and Money Laundering Section (AFMLS) was established.
“The more than $458 million stolen by former Nigerian Dictator Sanni Abacha is the largest kleptocracy forfeiture action ever brought in the U.S.” Despite that, Bagudu’s relative has been living handsomely on the interest from the forfeited funds and recently opposed their return to Nigeria so he can continue feeding on the Abacha loot.
There are two more issues here.
The US had frozen over $400 million dollars in a failed arms transaction with Iran after diplomatic relations soured.
After the negotiation of the nuclear disarmament deal, President Obama repatriated not $400 million but over $1 Billion to Iran. This was the principal amount plus interest accrued so Iran actually gained handsomely from its frozen funds!
However, the Abacha loot in those accounts has remained static for over 20 years at $458 million when it should have exceeded $1 Billion like the frozen Iranian funds. It was just this year that a Nigerian paper reported that Bagudu’s relative had been collecting the interest payments.
But in addition to the $600 million loss to Nigeria, different administrations have paid different lawyers millions of dollars to recover this same loot. At the end of the day, Nigeria’s $458 million dollars is actually rapidly devaluing both due to inflation adjustment and the legal cost of recovery. At this time, it is arguably less than 50% of its value 20 years ago.
I had long recommended that the Abacha loot be housed as an investment like a Sovereign Wealth Fund or an endowment whose return on investments (ROI) would be utilized for Nigerians. Little did I realize that just one family was consuming it.
Finally, officials in Washington have expressed concern that the money belongs to Nigeria as a whole so what is the guarantee that it will be equitably distributed to federal, state and local governments? The other issue then is that the some of the money would end up with the Governor from whom it was confiscated in the first place.
3. Ex-CBN gov Sanusi said under the Buhari administration many have become forex billionaires without lifting a finger by simply calling CBN for dollars. The multiplicity of exchange rates was a corruption bonanza and bazaar. Even CBN officials own Burea d’ Changes. Conversely it led to unsustainable losses for foreign airline operators who pulled out of the Abuja route, capital flight of Foreign Direct Investment (FDI) and rapid deinvestment and de-industrialization.
Ironically Onyema of Air Peace actually purchased aircraft and is actually operating a business providing essential service to the public and the economy by moving people and cargo despite this.
Some northern based airlines which ceased to operate commercial flights decades ago are reportedly still accessing forex via CBN on favorable terms. Onyema’s Air Peace is not only operational but its futuristic purchase of Boeing’s beleaguered 787 Max aircraft is one of that company’s lifelines after two successive crashes led to global grounding of the aircraft.
While I have not digested the indictment and am not offering a legal analysis thereof, from various news reports, I am yet to see the purported “illicit” sources of funds. I am yet to see a connection to drugs, politically exposed persons, arms or anything nefarious.
If Onyema is being suspected of defrauding the banks, that would not make sense if it is loans which he has to repay and which are collateralized by the purchased aircraft anyway. Several airlines have been taken over because of indebtedness and are still operational.
If the DOJ’s theory is that he was benefiting from favorable exchange rates from the CBN, then Onyema seems to have gone to a lot of trouble to actually purchase planes, create jobs and undertake daily operations instead of just making a phone call as other people were doing.
If the main infraction is that he received funds into his charitable non-profit accounts and then transferred them into his business accounts and purchased aircrafts, then this is precisely what Donald Trump’s Charity was found liable for. In November, New York State concluded that Trump’s charity diverted monies donated for veterans to his political campaign and also to buy a lavish portrait of himself. His charity has been fined millions and shut down. Trump himself has not been indicted.
4. Then there’s the matter of the son of President Bush Snr who perpetrated a shady contract in Nigeria or VP Cheney who’s subsidiary of Halliburton KBR perpetrated massive corruption in Nigeria in violation of both countries’ laws. EFCC fined Halliburton after indicting Cheney and settled. On the US side, there were convictions and multimillion dollar SEC fines but Cheney was never indicted. There has been no action on Jeb Bush’s contracts. Incidentally a similar spotlight is on VP Biden’s son’s involvement in a Ukrainian company.
I would note here that the SEC and DOJ also prosecuted, sanctioned and fined individuals and entities involved in the Wilbros Foreign Corrupt Practices violations in Nigeria. Some of these US Government agencies were able to weather the shutdown due to the multimillion dollar fines they netted but the unfortunate employees of the company Nigeria lost their pensions and benefits in the process.
5. A far more worrisome case is Turkish Airlines who have been importing arms into Nigeria in violation of US terror sanctions. In November 2013, after several years of my advocacy, the Obama administration designated Boko Haram a Foreign Terrorist Organization imposing sanctions on enablers of the group.
In 2014, I again testified before the US Congress and indicated the existence of a Turkish pilot’s audio recording, about shipping arms to Nigeria, as a possible violation of FTO sanctions. Nothing has been heard about sanctions taken pursuant to the FTO designation six years ago. Recently, I forwarded the audio and transcript of an Egyptian TV broadcast that accused Turkey’s President Erdogan of Boko Haram sponsorship, citing the same audio, to the US Congress.
It has since gone viral and the Nigerian army has responded to it for the first time since 2014. Post-911, there could be no greater similar threat than an airline that smuggles arms in potential violation of numerous international conventions, treaties and sanctions, warranting US and global interest. Additionally, Erdogan has been accused of bank-rolling ISIS by covertly buying their oil. Both are deeply troubling by themselves without even his genocidal strike on the Kurds which resulted in ISIS prison escapes.
6. Finally, my own personal experience is instructive. When the Buhari regime came to office, the Nigerian embassy sought to have my house in USA raided by their government to capture alleged “fake Chibok girls”. Unknown to them, the US government knew the girls were genuine and secondly the US doesn’t raid people’s homes arbitrarily without probable cause.
Thereafter the Buhari changed tactics and said the Chibok girls were not fake but I was using them for fundraising. The government had not provided for or taken care of them at all since I brought them to US (even though Borno State falsely claimed to be paying millions for 57 escaped girls). Eventually some of the Chibok girls in USA were taken by the embassy while some of them refused.
Having failed in their plan, the Nigerian embassy planted defamatory stories about me. I sued the Nigerian government and also sued an American newspaper who they used for defamation. In the US court, I asked when people are convicted by a quote of an unnamed law enforcement official not a court of law and not even the Department of Justice?
The defendants Drew Hinshaw and Joe Parkinson in their affidavits could not adduce any evidence or exhibit from the US government to support any claims of financial impropriety. Rather I had clear evidence that the Nigerian embassy was in violation of both domestic US law and engaging in conduct incongruent with their diplomatic status under international law by witness intimidation and retaliation for my testifying in the US Congress about human rights in Nigeria.
The Nigerian embassy in Washington at the highest levels authorized my punishment and silencing for/from speaking in “Congress,” specifically, ”Mr. Ogebe derives pleasure from trash-talking Nigeria on social media, in the Chambers of the United States Congress and other public places across the United States.”
More worrisome, the Charge d’ affaires (Acting Ambassador) of Nigeria Hakeem Balogun made the following chilling request, “Going forward, to prevent Mr. Ogebe, who is a Nigerian citizen, from making further derogatory comments that are inimical to the image of Nigeria, Government may consider taking punitive action against him, including withdrawal of his privilege to carry a Nigerian passport.”
As you know this is a criminal offense and is conduct incongruent with their diplomatic status.
18 USC 1505 provides in pertinent part that, “Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede . . . the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress— Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.”(see attached petition to the Congress.)
It is to be noted that Trump himself has recently been accused of such by his twitter attacks of witnesses in the impeachment hearings. Mr Onyema is therefore urged to address whatever accusations against him, in the light of the foregoing, knowing that in America, Nigerians are generally presumed guilty until proven otherwise in many instances but you should defend yourself nonetheless.
My filing of my defamation suit against the Wall Street Journal is precisely to stand up to this sort of bias. Although the US court recently ruled that I am a “public figure” so I must prove a higher stand of malice and gave me 60 days to do so, I am unrelenting in this battle. Tragically it is the Nigerian government which orchestrated this campaign to arrest me on false charges in US in 2015 and when it failed to scandalize me in 2018.
This is the same thing for which Trump is being impeached – trying to get a foreign government to prosecute a citizen who was a political opponent (in my case an activist.) Nigeria does not protect its citizens but, as evidenced by my case, actively attacks them.
Ironically Mr Onyema who evacuated Nigerians to protect them from xenophobic attacks when the government failed to, might find himself thrown under the bus abroad instead of defended by the government. Incidentally, Onyema was able to do what the Buhari regime failed to do which is float an airline as the Air Nigeria debacle illustrates. Even Rwandan Air flies to Nigeria.
The summary of it all is that “all animals are equal but some are more equal than others” or, as they say in the US, “different strokes for different folks.”
.Ogebe, a US-based Nigerian Lawyer heads the US NIGERIA LAW GROUP an international consulting firm in Washington