BY EMMANUEL ONWUBIKO
By the nature of their oath of office they swore before assuming their offices as governors, these set of public office holders should be persons who ought to be promoters of the Rule of Law and due process rather than the opposite which will automatically revise their role as anarchists and advocates of lawlessness.
For the purpose of clarity and avoidance of doubt, I will provide the citation of the oath of office of governor of a state as enshrined in the Constitution of the Federal Republic of Nigeria of 1999 (as amended) on the seventh schedule.
The oath of the office of Governor of a State goes as follows: “I, ……… do solemnly swear/affirm that I will be faithful and bear true allegiance to the Federal Republic of Nigeria; that as the Governor of ……… State, I will discharge my duties to the best of my ability, faithfully and in accordance with the Constitution of the Federal Republic of Nigeria and the law, and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of the Federal Republic of Nigeria; that I will strive to preserve the Fundamental Objectives and Directive Principles of State Policy contained in the Constitution of the Federal Republic of Nigeria; that I will exercise the authority vested in me as Governor so as not to impede or prejudice the authority lawfully vested in the President of the Federal Republic of Nigeria and so as not to endanger the continuance of Federal Government in Nigeria; that I will not allow my personal interest to influence my official conduct or my official decisions; that I will to the to the best of my ability preserve, protect and defend the Constitution of the Federal Republic of Nigeria; that I will abide by the Code of Conduct contained in the Fifty Schedule to the Constitution of the Federal Republic of Nigeria; that in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill-will; that I will not directly or indirectly communicate or reveal to any person any matter which shall be brought under my consideration or shall become known to me as Governor of ……… State, except as may be required for the due discharge of my duties as Governor; and that I will devote myself to the service and well-being of the people of Nigeria. So help me God.”
The purpose for digging up the oath of office of the governor of a state in Nigeria is to try to provide clarity to the reason behind the decision of the Kayode Fayemi- led Governors Forum to mount pressure on the Federal government not to comply to the verdicts of courts of competent jurisdiction to meet up with the financial obligations owed some indigenous consultants such as Linas International Ltd owed by the Philanthropist Prince Ned Nwoko. These judgments resulted from the non settlement of agreed consultancy fees to the firm for a job well done which revolutionised the Nation’s economy.
The Delta born Prince and a British trained attorney Prince Ned Nwoko was central to the decision of the Paris Club to refund Nigerian States and local councils of excess charges incurred when Nigeria first exited the foreign debt overhang in the administration of President Olusegun Obasanjo.
It is unbelievable that the same governors most of whom fought through the Court system to validate their electoral victories could be linked to any form of rebellion or sabotage against binding decisions of relevants Courts of Law to settle liabilities owed to legitimately engaged consultants who are Nigeria of great reputation and standing.
Worthy of mention is the clarity provided by the minister of finance on why the Federal Government is obliged to abide by the binding decisions of the competent courts of law to effect the payments to consultants who carried out the spade works that were instrumental to the multibillion settlement made to Nigeria by Paris Club.
Zainab Shamsuna Ahmed, the Minister of Finance, budget and National planning articulated the Federal Government’s position in her letter to the Chief of Staff to the President dated October 6th 2020 in response to an earlier letter by the Kayode Fayemi led GOVERNORS Forum.
The letter from the Federal minister of Finance, Economy and Budget goes thus: “RE: LIQUIDATION OF JUDGEMENT DEBTS ON BEHALF OF FEDERAL MDAs STATES AND LOCAL GOVERNMENTS”.
1.I refer to your letter Ref No: SH/CO3/O1/A/9139 dated 24th July 2020 on the above subject in which you requested the Federal Ministry of Finance, Budget and National Planning (the Ministry) of a review of the submissions made by the Honourable Attorney-General of the Federation and Minister of Justice (HAGF) in respect of payment of various categories of judgment Debts and submit proposal for an optimal settlement plan including the source of funds and payment milestone to inform Mr. President’s further directive on the issue.
2.The HAGF had categorized these judgment debts into three i.e. Category A Paris Club refunds related Debts; Category B- Top Priority FGN Debts due to enforcement actions and Category C- General Judgment Debts incurred by FGN/MDAs.
3.Consequently and as part of efforts to carry out the assignment and propose an optimal settlement plan, a team in the Federal Ministry of Finance Budget and National Planning (the Team) was mandated to reconcile and confirm the accuracy of the figures summited by the HAGF and recommend the appropriate sources of funds for the liquidation of these debts.
4.A brief background to each category of these debts are presented below: I. Paris Club Refund Related Debts (Category- A) The above categories are debts incurred by the sub-National Governments as a result of their engagement of consultants and/or Contractors to recover funds from deduction made by the FGN in respect of Paris Club Loans and the execution of some projects for the Local Government Councils and Area Councils, the payments of which were tied to the said refunds. The table reflecting these debts is attached and marked Annexure A.
II. Top Priority Debts Requiring Urgent Settlement (Category B) In this category are liabilities incurred by the FGN MDAs pursuant to Court judgments against them. Payment of these debts is critical and very urgent in view of the fact that important and strategic assets, of the FGN in Nigeria and abroad have either been attached or under threat of attachment in ongoing enforcement proceedings. The details of these debts are contained in the table attached and marked Annexure B. III.General Judgment Debts Incurred By 1The Federal Government Ministry, Departments and Agencies”.
The Finance minister stated also that these are debts incurred by FGN MDAs pursuant to Court Judgments against them. These could be settled in whole through issuance of Promissory Notes. The reconciled figures are contained in the table attached and marked Annexure C.
5.You may further wish to note that these Judgment Debts relate to various Court orders directing the Central Bank of Nigeria to pay the parties involved for sundry services rendered to the FGN, States and Local Governments, hence the liquidation of these liabilities has become necessary to avoid possible penalties and embarrassment that may accompany enforcement actions and Garnishee Orders.
6.Accordingly, for all Categories of Judgment Creditors i.e. A, B &C the Team recommends 100% liquidation through the issuance of Promissory Notes. However, for debtors in category A, a sinking fund would be established by equal monthly deductions from the Statutory Allocation due to the States and Local Government Councils over a period of ten (10) years.
Here are her PRAYERS (7.) In the light of the above therefore, the Chief of Staff is accordingly invited to present the following prayers for Mr. President’s consideration and kind approval; (I). for all Categories of Judgment Creditors i.e. A, B &C, 1006 liquidation through the issuance of Promissory notes(II). For category of debtors in Category A, equal monthly deductions from Statutory Allocation due to States and Local councils over a period of ten (10) years. This will go into sinking fund to help defray the expenses incurred by the Federal Government on behalf of the States and Local governments in paying off the Judgment debtors”.
The Finance minister’s letter which is unambiguously stating what is lawful and beneficial to all parties, was a response by Kayode Fayemi led GOVERNORS Forum which wrote as follows: JUDGMENT PAYMENTS & ASSOCIATED DEBTS ON THE LONDON PARIS CLUB REFUNDS: REQUEST TO INSTITUTE AN INDEPENDENT FORENSIC AUDIT. 9. Recall my meeting with Mr. President on the 8h of January, 2021 on the above subject matter.
Mr. President’s directive was that all proposed deductions from the statutory allocations of States associated with the London Paris Club refunds be stopped until parties agree on the purported debts.
In spite of the above, we have it on good authority that surreptitious attempts are still being made to meet purported debt repayments to some Consultants who claimed to have executed some services to the States in respect of the London Paris club refunds. Notable among these so called creditors are Prince Ned Nwoko (Ned Nwoko Solicitors), Prince Nicholas Ukachukwu (Riok Nigeria Limited), Dr. Ted Iseghohi Edwards and Dr. George Uboh (Panic Alert Security Systems PASS).
In light of Mr. President’s earlier directive, we were glad that the Chief of Staff to Mr. President convened and chaired a meeting in which the following were present: the Chairman, Nigeria Governor’s’ Forum, the Honourable Attorney General of the Federation and the Permanent Secretary, Federal Ministry of Finance, Budget and National Planning (representing the Minister who was unavoidably absent) on 3rd February, 2021. After extensive deliberations, the NGF reiterated the positions earlier conveyed to Mr. President in my meeting of 8 January, 2021 that:
a. States are legal entities and consent is necessarily needed before deductions of any nature can be validly made from their FAAC allocations
b. The Indemnity purportedly effected by the erstwhile Chairman of the Nigeria Governors’ Forum (NGF) is unknown to the States and the indemnity which was prepared by the NGF and retained in the Forum’s records-copy attached) but rejected by the Office of the Attorney General of the Federation (AGF) which proposed a substitute draft that was eventually never used.
Kayode Fayemi led NGF also argued thus: “However, assuming without conceding that the NGF provided an Indemnity, we still feel that the NGF as a legal entity cannot bind the States without the said States first authorizing it to do so. This has always been our practice in any situation where we seek to act as one united indivisible body.”
“Also, the Federal Government (FG) cannot issue Promissory Notes without the consent of all the States and the NGF as an Organization is shocked that the Debt Management Office (DMO) knowing the position of the law regarding this will approve these deductions without the consent or acquiescence of the States.”
“The position of the NGF and the States in this regard is that the States do not consider themselves liable to these Firms and persons in any way. It is instructive to note that successive governments had rejected the approval of these payments and going ahead to approve them now will hurt the anti-corruption credentials of this Government.”
“As we have often stated, these deductions from the statutory allocations of the States could not be more ill- timed. We note the recessionary state of the country’s economy including the all too well known fact that the States are grappling with the adverse effects of the Covid-19 Pandemic and the squeeze on petroleum revenue.”
He said: “There are, at present, several deductions from the statutory allocations of States and further deductions will spell doom on an already over-stretched economy. We therefore urge the Chief of Staff to protect the integrity of this Government by ensuring that activities of this nature are done above board. Anything short of this will come back to haunt us when we are no longer in government”.
10. In the light of this, we respectfully implore Mr. President to order an independent forensic audit of these proposed deductions to determine the validity”.
With all due respect, the position of the Federal ministry of Finance, Budget and National Planning makes more sense because it is built on sound logic, the legal pedestals and imperative need for the Federal government of President Muhammadu Buhari to abide by the binding decisions of the Courts of competent jurisdiction in which all the parties including the states, Local Government Councils and the State Governments represented validly by the Nigerian Governors forum that was in place at the time of the landmark decisions and since government is a continuum, it makes no sense for the new leadership of the Nigerian Governors forum that have already BENEFITTED from the sweat and efforts of the Nigerian Consultants including the reputable consultancy firm of the Nigerian lawyer Prince Ned Nwoko can now be seen arguing against the decision of the Nigerian State to obey the law. How on Earth is it allowed that a party in a suit who has already consented to a valid and binding orders of the Courts of competent jurisdiction be tolerated to call for a forensic investigations of cases that went through the Nation’s court system and the Courts reached a determination and the import of the verdict is that those who laboured to enable Nigeria reap the repayment of excess charges from the Paris Club should be entitled to their just wages. Let us read briefly from the NIGERIAN lawyer who practically resolve these knotty issues that led to Nigeria collecting back huge repayment in the person of Prince Ned Nwoko.
Asked to express how he would describe his experience of the Paris Club refund and he responded thus: “Let me say that it is a mixed bag in terms of what Nigerians know of it and how the three tiers of government have treated it.At one level, there is a sense of accomplishment of what one has done for his country. When you do a patriotic duty and accomplish the task, there is a sense of accomplishment. Like the Association of Local Governments in Nigeria (ALGON) mentioned in their letter, it was a patriotic duty that involved a lot of risks and hard work, it took a lot of time and expertise to pursue the creditor-countries to refund the excess deduction of funds that they creamed off from Nigeria’s repayment of the foreign loans by the creditors. Of course this was a process that began in 1992 to 2002. The state governors are simply treating it as a windfall from the sale of crude oil or a form of bailout fund. We pursued the matter from 1992 to 2002, when most of those who are treating the refund as bailout fund or windfall from the sale of crude oil have not even dreamt of venturing into politics.”
He added solemnly that: “You can imagine what it meants for a cash-strapped government to realise that it had such a huge sum of money somewhere and the federal and state governments have so far shared the sum of N413, 464,646, 605, from the Paris Club refund but I can tell you that it did not come that easy. We encountered hostility from the creditor-nations, some of them sent their security agents after us, some employed blackmail by threatening to severe diplomatic relations with Nigeria, some felt that we were impugning their national integrity, some even went ahead to instigate the Economic and Financial Crimes Commission against us to force us to pull back. Some government officials who felt that we were meddling in their affairs also built walls around us. It became an uphill task to obtain the documents where we needed forensic evidence to support our work. As an international legal firm, we had worked for some countries in Africa. The countries engaged our firm to assist them to verify the process of repayment of their foreign loans and, in the process, we discovered that there were unethical things that had taken place. With that as our background, we approached some state governments to act as their consultants to verify the issue of repayment of the foreign loans. We entered into legally binding agreements with some of the states and, as we progressed, other states and local governments became interested. For instance, under the doctrine of collective sacrifice that was adopted by the Federal Ministry of Finance to deduct funds from states and local governments, deduction were made from the allocation to the states and local governments from the Federation Account.”
These were highly credible storyline from a principal participant who helped to recover these huge refunds from the Paris Club.
One begins to wonder why of all people, the current hierarchy of the Nigerian Governors forum now wants to rubbish the efforts made by some Nigerian patriots to pull back resources that were literally taken away from us by the Paris Club of nations. Why Is Kayode Fayemi led GOVERNORS Forum grandstanding and playing politics with a matter that has already been settled by Competent courts of law and took many years to attain? Why hire the online newspaper to try to demonize Ned Nwoko so as to deny him of the fruits of his legitimate labour?
To divert attention by introducing sensational angle to the whole scripts of seeking to undermine the Rule of law, the Governor Kayode Fayemi of Ekiti State said Monday that he was offered $80million bribe to drop his objection to the settlement of the $418million judgment debts purportedly owed by states and their local governments in securing the Paris Club refunds.
He told a friendly online newspaper in an exclusive interview that he was offered the money after he rejected an initial $40 million offer.
Mr Fayemi, who is the Chairman of the Nigeria Governors’ Forum (NGF), said the fixers who approached him over the matter, also raised the offer to $80 million when they could not break his resistance with the initial $40million offer.
He said he similarly rejected the $80million offer in the interest of justice.
The Economic and Financial Crimes Commission (EFCC) needs to extend invitations to Fayemi to tell Nigerians who approached him with such a huge bribe offer. The Ekiti State governor has continued to use the friendly online newspaper to wage his war of attrition against legitimate and credible Nigerian Consultants who initiated and won for Nigeria these huge funds that came at a time that most States of the federation couldn’t pay salaries to their workforce.
The same online newspaper hired as mercenary WRITERS also ignorantly reported thus: “The Attorney-General of the Federation and Minister of Justice, Abubakar Malami, has for years disregarded repeated warnings against the suspicious $418 million judgment debts said to be owed by the states and their local governments with respect to the Paris Club refunds.”
The online newspaper falsely reported that: “But despite the warnings, including a report by the Economic and Financial Crimes Commission (EFCC), against the legitimacy of the debts, the minister has been contributing to what anti-corruption activists consider a desperate push for the settlement of the purported creditors through monthly deductions from the allocations of states and local governments, a report by Premium Times revealed.”
The paper sensationally said it has copies of tens of official correspondences and documents concerning the matter, exclusively reported how the AGF, along with two other powerful officials, has been working against the demand by the Nigeria Governors’ Forum (NGF) that the legitimacy or otherwise of the huge debts be determined through a forensic probe.
Others with whom Mr Malami has been countering the governors are Ibrahim Gambari, the chief of staff to President Muhammadu Buhari, and the Minister of Finance, Zainab Ahmed.
Some individuals who claimed to be agents of the judgment creditors, it was gathered, have allegedly offered as much as $40million in bribes to the Chairman of the NGF, Governor Kayode Fayemi, to break his resistance to the settlement of the suspicious debt.
But the Ekiti State Governor rejected the overtures, insisting that the debts and the judgments around them should be thoroughly investigated in the interest of the Nigerian people, those familiar with the matter said.
Sincerely speaking, these are tales by moonlight and made up stories that lack any form of verification. When did the Economic and Financial Crimes Commission EFCC fault the legitimate financial obligations owed to credible consultants who were adequately and lawfully briefed by the states and the local Government Area Council to represent their interests regarding the legal battle to recover the excess charges paid wrongly to the Paris Club of nations by Nigeria? Why did the online newspaper not publish the letter by the EFCC and why make heavy weather of a seemingly politically fabricated allegations of bribery with an amount that is even bigger than what the consultants would be paid and by the way,these repayments are in promissory notes and not in cash or do the governors prefer that the Consultant return to the same Courts that awarded these damages to seek an order forcing the Federal Government yo pay them in cash? Or do these governors want these persons and companies being owed to enforce these judgements in Europe by which case the Country will suffer disgrace? What does the Kayode Fayemi led GOVERNORS Forum want?
The story shows that this online paper is in the pocket of Fayemi who is encouraging lawlessness even when the governors forum indemnified the Federal Government on the repayment and 36 state governors also wrote letters to the finance ministry agreeing to the deduction of five percent off their monthly allocations until the payment obligations are made. It must be noted that the decision to offset these debts to the indigenous companies is not shaddy, fraudulent or of untraceable origin. The relevant Courts of competent Jurisdiction reached considered determination and the parties including the states of the Federation accepted the verdict.
Aside trying to sow a seed of confusion through the use of subterfuge and some kind of subtle media propaganda, the Chairman of the Nigerian governors Forum Mr. Kayode Fayemi should be told that it is too late in the day for him to seek to overturn a properly obtained valid decisions of different Courts of competent jurisdiction. The attempt by some online newspapers to muddy the well intended decision of the Federal Attorney General to comply with the Judgment of competent courts is a red herring and is absolutely unfortunate. This whole scenarios by Kayode Fayemi is like saying that the executive arm of government should not abide by the Constitutional principles of separation of power. Why seek a forensic audit of a competent decision of the court and then raise some incongruities to seek to undermine the process? Why not institute a case if the governors now believe that there were in error by consenting to the terms of the valid decisions of the Various Competent Courts of law and why is the media as the forth estate of the realm championing the disobedience of Valid Courts’ Verdicts?
Mind You, unlike in the matter of judgment debt between Nigeria and the Irish Company known as process and Industrial Development Ltd (P&D) over botched gas contract, the consultancy services offered by Linas International Limited towards the process that occasioned the huge refunds to Nigeria by Paris Club; are never in doubts and indeed the competent judicial fora had made far reaching judgments which are already being implemented.
So why this strange hostility to the decision to pay off the Nigerian lawyer Ned Nwoko through a ten year bond or do these governors prefer that the consultants return to the courts to demand for cash payments?
EMMANUEL ONWUBIKO is head of the HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) and was a federal commissioner at the National Human Rights commission of Nigeria.