Tinubu and the Drug-Related Charges
Just like in previous electoral cycles when he has vied for office, speculations, accusations and direct condemnation become rife about the man known as Bola Ahmed Tinubu. Amongst other controversies, a recurring claim is with respect to “drug-related charges†in the US flowing from a civil judicial forfeiture of seized funds in excess of USD 1,000,000 (One Million Dollars) as per the affidavit of Kevin Moss in 1993. Keep in mind that the All Progressive Congress (APC) presidential nominee has never unequivocally denied that he is not the defendant in the aforesaid proceeding hence, we would proceed on the premise that the defendant in that action is the Asiwaju Bola Ahmed Tinubu today. This opinion would attempt to strictly lay bare the legal aspects of the case devoid of political undertones.
Nigeria, like every other country in the world is bound by laws – criminal and civil laws as well as its practice and procedure. The standard of proof for criminal cases is beyond reasonable doubt (Section 135(1) Evidence Act 2011) while otherwise, a balance of probabilities would suffice (Section 134 Evidence Act 2011). What this means is that in order to secure a conviction, the prosecution must satisfy the court that the defendant to a high degree of certainty committed the offence with the required intent whereas, in civil cases, a plaintiff would succeed once he is able to show that nexus exists between an event and consequence.
Section 36(5) Constitution of the Federal Republic of Nigeria 1999 as amended guarantees the presumption of innocence to every person charged with a crime. Whereas, this constitutional provision is interpreted literarily, the presumption of innocence ought to attach to every person ACCUSED or SUSPECTED of committing a crime so that such persons cannot be arrested or charged unless there is probable cause. See for example, Article 6 of the African Charter on Human and Peoples' Rights (which Nigeria has signed and ratified) which stipulates as follows: Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.
The foregoing seems to explain the experience of most Nigerians with law enforcement where the latter would arrest a person (sometimes, only upon allegations in a petition) then proceed to obtain a “voluntary statement†which would implicate the suspect and provide the crime for which the suspect can be charged. An analogy is apt at this juncture as follows: Chief A is a politically exposed person (PEP) accused of “stealing†NGN 200,000,000 (Two Hundred Million Naira) of public funds. The investigating law enforcement agency has found NGN 100,000,000 (One Hundred Million Naira) in Chief A’s personal account, NGN 50,000,000 (Fifty Million Naira) in his wife, Mrs. A’s account and NGN 50,000,000 (Fifty Million Naira) in accounts in the names of his children, A1 and A2.
It is quite common in the above scenario for law enforcement in Nigeria to arrest Chief A along with his wife and adult children and thereafter attempt to prosecute the family for the crime while seeking criminal forfeiture of the funds. In such a case, the suit against the wife and children would undoubtedly fail because of the high standard of proof required to convict and the inability of the prosecution to prove the elements of the crime against the third parties.
Here is another scenario: Chief A, the PEP is accused of stealing NGN 200,000,000 (Two Hundred Million Naira) with NGN 150,000,000 (One Hundred and Fifty Million Naira) found in his personal account and NGN 50,000,000 (Fifty Million Naira) traced to the account of his associate or confidant, Mr. B. Again, if law enforcement pursues a case of stealing against both Chief A and Mr. B, the action would likely fail against Mr. B as the prosecution may not be able to discharge the burden of proof to secure a conviction.
However, assume the law enforcement agency rightly pursues Chief A for commission of the crime and seeks criminal forfeiture of the total sum of NGN 200,000,000 (Two Hundred Million Naira) while pursuing the family or associate under civil judicial forfeiture (thus, reducing the required standard of proof) for the fraction of the proceeds of the crime traced to their accounts, would both actions not succeed? We dare to answer this question in the affirmative!
It is imperative to note that at the civil proceeding for forfeiture of funds believed to be proceeds of a crime, it is possible for Mr. B or Mrs. A and her children to show that the funds traced to their respective accounts are in fact, legitimate income from lawful sources and not proceeds of crime as alleged. In such a case, the parties would be entitled to keep the funds.
Transpose the above scenarios to the US and the same legal principles would apply albeit with the US law enforcement proceeding differently than their Nigerian counterparts. The Fourth Amendment to the US Constitution stipulates that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon PROBABLE CAUSE, supported by Oath or affirmation….â€
What this means is that a person cannot be arrested or charged in the US unless there is probable cause (a high probability that the person committed the crime over mere or reasonable suspicion) that the person committed the crime. The Fifth Amendment provides in part as follows: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,….nor be deprived of life, liberty, or PROPERTY, without due process of law;….†See, United States v. Leon Et Al. 468 US 897 (1984).
In the case of the APC presidential candidate, US law enforcement (a joint task force of IRS, DEA and FBI) recognized that they could not successfully prosecute Bola Ahmed Tinubu for drug-trafficking or related charges including conspiracy because, there was no or insufficient evidence (probable cause) to obtain an indictment or secure a conviction. However, there was ample evidence to support the action of civil judicial forfeiture to wit: persons under investigation for drug-trafficking and related charges (particularly, one Adegboyega Mueez Akande) did in fact, transmit a portion of the proceeds of their crime to accounts held and/or controlled by Bola Tinubu. Upon the US government providing evidence to the court showing the nexus, the defendant in that case was unable to show that the funds constituted lawful income and thus, was liable to forfeit the sum of money in excess of USD 1,000,000 (One Million Dollars). Keep in mind that Bola Tinubu was neither indicted nor charged with drug-related offences but a civil suit was rightly maintained to recover from his accounts monies suspected to be proceeds of a crime.
Follow the author, AA Ibironke, Esq. on Twitter @SirMcAwesome247
