By Daniel Ojukwu
On August 10, 2022, the United States District Court released documents that confirm Bola Tinubu, presidential candidate of the All Progressives Congress (APC), forfeited $460,000 proceeds of drug peddling.
Its 1993 ruling by Magistrate Rijcklo held that Tinubu and his associates peddled drugs “on a large scale and the operations were substantial”.
Rijcklo stated that the monies recovered “represent proceeds of narcotics trafficking and further represent property involved in money laundering in violation of 18 USC §§ 1956 and 1957”.
Since the report of his settlement deal became public, critics of his presidential ambition have called for a more extensive probe and trial to test his fitness for office. But Tinubu’s campaign council fired back, saying the call was an attempt to “wake up a dead horse”.
CONVICTION OR INDICTMENT? LEGAL TECHNICALITIES
On Friday, FIJ spoke with Benard Onigah, former secretary of the Nigerian Bar Association’s National Human Rights Committee. In a telephone interview with our reporter, he said the matter might be a good test for Nigeria’s judicial system.
Onigah said Nigeria’s common law is different from the US’ civil law. He said while in Nigeria, one is deemed innocent until proven guilty, the reverse is the case in the US, where one has to prove their innocence.
According to him, Tinubu’s inability to prove his innocence led to his indictment and forfeiture of funds.
Onigah, however, said that as the documents did not say the magistrate adjudged Tinubu to be guilty of the crime of drug peddling, he might be argued to not qualify as a convict in the eye of the Nigerian constitution.
Onigah said, “An ex-convict cannot hold elected offices in Nigeria. If it is seen that you are convicted for peddling drugs, you cannot and should not hold public office. However, it is left for a Nigerian court to decide if that amounts to a conviction.
“The certified true copy of the court proceedings in the US is very strong evidence however. Day-old lawyers know it was a plea bargain, and one does not bargain when they are right, you bargain to get a lesser sentence.
“Payment of fine amounts to a conviction. Conviction does not only mean going to prison. If you have to pay a fine, it means you are guilty of an offence.”
FORFEITURE WITHOUT CONVICTION
When FIJ asked if it was possible to forfeit that sum without a guilty verdict, Onigah said this was possible.
He said, “That is where there is difference between criminal jurisprudence between the US and Nigeria. In Nigeria, we are a common law jurisdiction, and you are said to be innocent until proven guilty, while in the US, you are guilty until proven innocent.”
Onigah said that by this, Tinubu was deemed guilty until he was able to prove he had not committed the crime he was accused of, and forfeiting the money showed he had not proven his innocence.
“What the court was telling Tinubu is, ‘You have monies in your account we know to be linked to a drug cartel. If you think this money is legitimate money; sold something legitimately to these drug barons, please come and tell us so that we release the money to you.’ When Tinubu was asked to do so, he could not,” Onigah added.
He said the plea bargain was for proceeds got from drugs in the US. Onigah, however, said it was up to a Nigerian court to determine “if that qualifies as a proper conviction under the Nigerian jurisprudence”.
WHAT THE LAW SAYS
Section 137, subsection 1(d) of the 1999 constitution as amended states, “A person shall not be qualified for election to the office of President if – he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for any offence involving dishonesty or fraud (by whatever name called) or for any other offence, imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal.”
This provision means that if a Nigerian court deems the forfeiture to be a fine, Tinubu will be ineligible to run for office.
The provision is repeated in Section 182 of the constitution, which refers to eligibility to contest for governor. Tinubu became Lagos State Governor in 1999, six years after this forfeiture, and held office for eight years.
Media records have it that in 2003, the US Consulate Office in Lagos wrote Tafa Balogun, the then Inspector-General of Police, saying its records did not indict Tinubu of any wrongdoing anytime in the past within the territory of the United States of America.
Until the matter is decided by a Nigerian court of competent jurisdiction, Tinubu’s candidacy remains recognised by the Independent National Electoral Commission (INEC).
Source: FIJ
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