$6bn Fuel Subsidy Scam: International Criminal Court Asked To Prosecute Indicted Nigerian Officials

 Hon. Farouk Lawan

Socio-Economic Rights and Accountability Project (SERAP) has petitioned Luis Moreno Ocampo Prosecutor, International Criminal Court urging him to “use your good offices and position to examine and investigate whether the widespread and systematic corruption and theft of over $6 billion in the fuel subsidy scheme over a period of three years and its devastating effects on millions of Nigerians amount to inhumane acts intentionally causing great suffering, or serious injury to body or to mental or physical health as provided by Article 7 of the Rome Statute of International Criminal Court.”
The organization also urged him to “prevail on the Nigerian government to fulfil its obligations to effectively and fairly investigate and prosecute all allegations of grand and widespread corruption in the fuel subsidy system.”
Nigeria is a state party to the Rome Statute and deposited its instrument of ratification on 27 September 2001.
In the petition dated 20 April 2012 and signed by SERAP Executive Director Adetokunbo Mumuni, the organization said that, “The reported massive corruption has caused so much suffering, and thrown millions of Nigerians deeper into poverty, depriving them their human dignity, and access to resources and capabilities, choices, security and power necessary for the enjoyment of legally recognized economic, social and cultural rights.”
According to the organization, “the nature and scale of corruption in the fuel subsidy scheme in Nigeria amounts to a "crime against humanity" which according to Article 7(1) of the Rome Statute can refer to “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”
“The common denominator of those crimes against humanity is that they are grave affronts to human security and dignity. As demonstrated above, the scale and magnitude of grand corruption in Nigeria creates just these consequences. Crimes against humanity are not only physical violence; rampant corruption holds a comparable gravity, which the Prosecutor should examine and investigate,” the organization said.
The organization also said that, “Massive corruption in the fuel subsidy scheme also has uneven consequences against the vulnerable groups of the society, including the poor, women and children, perpetrating and institutionalizing discrimination.  By exploiting the nation’s natural resources and wealth for the personal gain of high-ranking public officials rather than socio-economic development of the country, grand corruption jeopardizes the needs and well-being of future generations as well.” 
“The government has not shown sufficient political will to effectively address the allegations and bring suspected perpetrators to justice. There are several obstacles such as limited public funding for investigations and judicial procedures and political immunities and a culture of impunity, to successful and effective investigation and prosecution of those suspected of perpetrating grand corruption. The government also has not developed an effective and transparent regime for the recovery, repatriation and spending of the proceeds of corruption,” the organization also said.
The organization also said that, “The elements that need to be established to prove a “crime against humanity “under article 7(1)(k) of the Rome Statute are that, the perpetrator inflicted great suffering or serious injury by means of an inhumane act; that the perpetrator was aware of the circumstances, and that the act was committed within a widespread or systematic attack on a civilian population; that the perpetrator knew of that link.”
According to the organization, “The corruption in the fuel subsidy scheme degrades life, and its consequences are similar to those of the offences in article 7(1). Corrupt officials know well that their conduct is criminal and injurious, and that their ostentatious lives, built on a radical breach of solemn trust, aggravate their crime. Similarly, the theft of over $6 billion exacerbates scarcity of funds necessary for improved access of millions of Nigerians to the country’s natural resources. Thus the scale and magnitude of systemic/grand corruption in the fuel subsidy scheme fits the legal requirements of a crime against humanity.”
The organization therefore asked Mr Ocampo to:
1.    Urge the Nigerian government to carry out its primary responsibility of investigating and prosecuting grand corruption in the fuel subsidy scheme and the resulting crimes under international law being committed against the Nigerian people.
2.    Urge the Nigerian government to recover all stolen money, and to ensure a transparent spending of recovered funds
3.    Urge the Nigerian government to fulfil its obligations under Article 86 of the Rome Statute to co-operate, including complying with your requests to arrest and surrender suspected perpetrators of official and massive corruption, take testimony, provide other evidence and trace, freeze, seize and forfeit stolen assets for the benefit of the Nigerian victims.
4.    Urge other states to exercise universal jurisdiction over those suspected to be responsible for the systemic/official corruption in the fuel subsidy scheme and the resulting crimes against humanity being committed against the Nigerian people.
5.    Commence an investigation proprio motu on the allegations of systemic/official corruption in the fuel subsidy scheme by those entrusted with Nigeria’s resources, with a view to determining whether these amount to crimes against humanity within the Court’s jurisdiction. In this respect, we also urge you to invite representatives of the Nigerian government to provide written or oral testimony at the seat of the Court, so that the Prosecutor is able to conclude on the basis of available information whether there is a reasonable basis for an investigation, and to submit a request to the Pre-Trial Chamber for authorization of an investigation.
According to a 200-page report by Nigeria’s House of Representatives corruption in state-run fuel subsidy scheme drained $6.8bn from the country's treasury over a three-year period. This has resulted in increased spending on oil hand-outs between 2009 and 2011. Fuel subsidies, part of a decades-old programme meant to keep fuel prices low for millions of ordinary Nigerians, jumped to 2, 587 trillion naira from 384bn in the period.
The report identified the Nigerian National Petroleum Company, ranked the world's least transparent state oil firm, as the key culprit. The firm was single-handedly responsible for almost half of the siphoned subsidy funds and was "found not to be accountable to anybody or authority". Seventy-two fuel importers, some with allegedly close links to senior government officials, were also singled out. In one case, payments totalling exactly $6.4m flowed from the state treasury 128 times within 24 hours to "unknown entities".