The Only Court That Ever Tried Diezani Found Her Not Guilty. The EFCC Says That Has Nothing to Do With the Houses It Already Sold.

On Monday the EFCC filed a counter affidavit in Abuja that I have now read three times, because it says, in plain language, something the commission has spent the better part of a decade arranging not to have to say. In June a jury at Southwark Crown Court in London deliberated for more than 46 hours over whether Diezani Alison Madueke took bribes while she ran Nigeria's oil ministry, and acquitted her on all six counts. Her lawyers want Justice Inyang Ekwo of the Federal High Court to take that verdict into account in her suit against the EFCC over the sale of her property. The commission's reply is that the London trial was "a proceeding that is not being prosecuted before any Nigerian court" and has "nothing to do with the substantive suit before this honourable court." The judge will hear the arguments on November 11.

I think the commission is right. That is what bothers me.

None of the orders the EFCC used to take and sell Diezani's assets were convictions. They were forfeiture orders, most of them under Section 17 of the Advance Fee Fraud Act, and the procedure is worth setting out because the whole argument lives inside it. The commission applies to a judge without the owner present and gets an interim order. It publishes a notice inviting anyone with an interest in the property to come to court and show cause why it should not be forfeited. If nobody comes, or the judge is not persuaded by whoever does, the order becomes final. The standard is civil. The question is never whether the owner committed a crime. It is whether the property is reasonably suspected to be the proceeds of one.

That is how the Banana Island estate went in August 2017. Twenty four apartments, eighteen flats and six penthouses valued at $37.5 million, plus the rents. The EFCC told Justice Chuka Obiozor that $37.5 million in cash had been moved out of Diezani's house in Abuja and paid into the seller's bank account, and that nobody had come forward to contest the interim order. The judge said he had "no other option but to grant the orders as prayed." Later that month the same judge forfeited N7.6 billion sitting in a bank, on another application made without the other side. In October 2017 Justice Abdulaziz Anka forfeited four housing estates in Lagos, Port Harcourt and Abuja worth more than N3 billion. In September 2019 Justice Oweibo forfeited jewellery and a customised gold iPhone valued at $40 million, and in that case her lawyer did turn up, argued that she was a successful businesswoman who had acquired the items legitimately and as gifts, and lost. The EFCC's counsel told the court that "it is an unlawful activity for a public officer to receive gifts as a result of what was done or not done." The judge agreed.

I am not against this kind of forfeiture. I think Nigeria needs it. UNCAC Article 54 asks states to allow confiscation without a criminal conviction where the offender cannot be prosecuted "by reason of death, flight or absence." Diezani left Nigeria in 2015 and has not come back. On the treaty's own terms she is close to the model case. A country that can only recover stolen money after it has convicted the thief will recover almost nothing from anyone who owns a passport, and Nigeria's record of convicting anyone with real money is the subject of about half the issues of this newsletter.

But the Article is written for the case where the state cannot try the person, and the order of events here runs the other way. Nigeria took first and charged later. The Banana Island and N7.6 billion orders came in 2017. The criminal charge the commission now cites in its own court papers, FHC/ABJ/CR/208/2018, was filed the following year, against a defendant everyone knew was in London on police bail. A Federal High Court arrest warrant came in January 2022, when the EFCC told Justice Bolaji Olajuwon that every effort to have her extradited had "proved abortive." By October 2023 the charge had grown to 13 counts of money laundering, announced on the day British prosecutors arraigned her over an alleged £100,000 bribe. The commission's statement that day welcomed the arraignment, said extradition proceedings had begun, and added that "criminality is criminality, irrespective of jurisdictional differences." The Attorney General wrote to London asking for her. London, which was busy prosecuting her itself, kept her. Its trial ran five months. She won it. Three years after the commission said jurisdiction did not matter, jurisdiction is its entire argument.

In the four months since the verdict I cannot find a public word from the EFCC or the Attorney General's office about whether the extradition request still stands now that the British case is over, or whether anyone intends to bring the 13 counts into a courtroom. Monday's counter affidavit, which is the commission's most recent word on her, does not mention either.

So this is where Nigeria stands. A former minister whose estates, flats, cash, rents and jewellery were forfeited without a conviction, who has never spent a day in a Nigerian courtroom answering the charges that are supposed to justify it, and who can now say, accurately, that the only court anywhere in the world to try her on the facts found her not guilty. And a commission that can say, equally accurately, that none of that touches a single order it holds. Both statements are true at the same time. They will both still be true on November 11. The space between them is what this newsletter is named after.

What the EFCC did with its orders matters for the next part, so here it is exactly. On January 6, 2023, Diezani filed suit FHC/ABJ/CS/21/2023 asking the court to stop the commission from selling her property. The EFCC's public notice had set the sale for the week of January 9 to 13. The sale went ahead. Her case now asks the court to order the commission to retrieve what it sold from whoever bought it, which tells you how she thinks that week went. The commission's filing says the properties "were disposed of in accordance with due process of law." It does not say to whom, or for how much, or where the money is now. I wrote in July about the House motion to audit 27 years of asset recovery because no national register exists, and the week after about an agency that investigates, seizes, holds and sells the same assets with no outside check on any step. The Diezani sales are the cleanest example of both I have come across. The EFCC investigated her, obtained the orders, kept the assets for more than five years, ran the auction, and now defends the sale in court. In September its chairman gave reporters a breakdown of N1.23 trillion in recoveries since October 2023. Whether any of the January 2023 proceeds sit inside that figure, nobody outside the building can tell you, because there is nothing to check it against.

There is a second thing the London verdict shows, and it is about who does the trying. I wrote in Global Policy Journal in June about what happens to West Africa when the extraterritorial enforcer steps back. This is what it looks like when it steps forward and loses. Britain's National Crime Agency spent eleven years on a case about chauffeur driven cars, a private jet flight and the refurbishment and staffing of London properties. Her barrister told the jury the "gross delay" had cost her the records that would have proved her innocence. The jury heard the evidence tested by her lawyers and was not sure enough to convict, which in a criminal court is the same thing as not guilty. Nigeria, where the contracts were awarded and the witnesses live, has never had to put its evidence in front of anyone with her lawyers answering it. It has only had to persuade a judge, usually with the other chair empty, that property was reasonably suspected. Those are very different tests. The country with the weaker test is the one that kept the property.

I want to be careful about what this does and does not establish. An acquittal in London on six bribery counts is not a finding that $37.5 million in cash never left a house in Abuja. The British case was narrow. The Nigerian allegations are wide, and a jury finding the first unproven says little about the second. Ozekhome's argument that the acquittal goes to "the absence of a conviction, fair hearing, due process, and the propriety of depriving her of property" is an argument about Nigerian procedure, not London facts, and it is a reasonable one. The EFCC's argument that the two proceedings have nothing to do with each other is also reasonable. Neither side is wrong. The system was built so that the commission never has to be right about the underlying crime in order to keep what it took.

November 11 is a hearing on motions. Justice Ekwo will decide whether the London judgment goes into the record and, eventually, whether the forfeiture orders were obtained properly. He will not decide whether Diezani Alison Madueke stole from Nigeria, because no Nigerian court has ever been asked to decide that with her in the room, and on the current evidence none ever will be. The 13 counts are in a file. The extradition request is in another. The money from the January 2023 sales is in an account the public cannot see. And the commission's position, written down and filed on Monday, is that the only trial anybody ever held has nothing to do with any of it. I keep coming back to the fact that this is the correct legal position. Nigeria built the tool so that it would be.