Emeka Ugwuonye Against The EFCC In American Courts - Analysis
- Details
- Category: GENERAL
- Published on Monday, 11 June 2012 16:40
- Written by Elombah.com
Last week, Elombah.com began to monitor a lawsuit for torture and severe human right violations, which the US-based lawyer, Emeka Ugwuonye, filed against the Nigerian Ambassador and a slew of EFCC top officials. We previously reported the dramatic manner in which certain Nigerian officials were served with the summons in
Washington, while attending a security conference with the US Government officials. In the coming series of reports, Elombah.com will be following the details of that lawsuit and its implications for civil right enforcement in Nigeria.
As previously reported, Ugwuonye brought the lawsuit under the special US anti-torture statutes – the Alien Tort Claims Act of 1789, otherwise known as the Alien Tort Statute, and the Torture Victim Protection Act of 1991. This type of claim has a 10-year statute of limitation, which means that Ugwuonye could continue to expand the dragnet for more officials that participated in or provided material support for his torture; even years after those officials would have left office. Unlike other laws, this claim can only be made against individuals. But this might not be any consolation for the Nigerian Government because once you sue its top officials; the Government is placed in the American dock all the same.
According to the complaint filed in court, Ugwuonye is “seeking damages for assault, crimes against humanity, violations of civil and human rights, torture, illegal rendition, abuse of court process and conspiracy, committed by the Defendants and their agents; and also acting in concert with, aiding, abetting, facilitating, soliciting, directing, orchestrating and conspiring with the Economic and Financial Crimes Commission (EFCC) of the Federal Republic of Nigeria, the State Security Service (SSS) of Nigeria, and their collaborators in those atrocities; in violation of the Law of Nations, international law, the laws of the Federal Republic of Nigeria, the laws of the United States of America and of individual states, including but not limited to the District of Columbia, and the natural laws of man”. The fascinating idea is the emphasis on the violations against “the natural laws of man”. This is no doubt a tightly drafted summary of claim. And it underscores the nature of the claim itself. The prevailing view among legal scholars and experts spoken to on this matter is that this is one of the areas of the law where the United States seems to assert universal jurisdiction because the claims are usually associated with violation of universal legal norms that have been accepted as part of customary international law. Torture is universally condemned by all civilized nations of the world, and given that no country officially endorses torture, US courts would have no difficulty in exercising jurisdiction. The question that remains is whether Ugwuonye could prove torture in the instant case.
Elombah.com’s research reveals that this law has been used against a Nigerian official once before. It was in relation to the suit the Abiola family filed in the US against former Head of State of Nigeria, General Abdulsalami Abubakar, for the wrongful death of MKO Abiola and his wife and other violations of rights. That case lasted for seven years through many courts in the United States, until it was settled for the sum of $650,000 in May of 2008. The irony of life is that it was actually Emeka Ugwuonye that defended Abubakar and the Nigerian Government in the Abiola torture claims. One thing is therefore clear – if anyone knows how Nigerians would fare in such a claim, it is probably Emeka Ugwuonye himself. In the Abubakar case, the US courts accepted jurisdiction and were heading toward a jury trial when the case was settled, clearly as a result of the technical defensive maneuvers that Ugwuonye placed in the way of the plaintiffs in that case. Asked about his previous position as a lawyer to Nigerian Government in the past, Ugwuonye replied: “The biggest irony of it all was that I had actually been their lawyer in the United States for 8 years. And I had gone to courts in America asking for Nigeria to be given a chance and opportunity to get its acts together. But I now know I was wrong on many things. In fact, if I knew what I know now, I would have surrendered Nigeria officials for execution the first time I appeared before a judge on behalf of Nigeria.”
Explaining elsewhere why he chose to sue these officials in the US, Ugwuonye said: “First and foremost, US is my country of residence for the past 20 years. This is where my children were born and this is the only place they can realistically call home. This is where I schooled and worked, and still work. This is where the controversy, which formed the pretext for their abuse of my rights in Nigeria occurred. I believe that the US courts have subject matter and personal jurisdiction over the case. And this is where the defendants could truly face justice. They have massive influence over Nigerian judges.”
He goes further to say: “Also, I filed in the US because the Unites States legal system and its courts are highly respected worldwide. The sort of legal analysis to be conducted in this country is pretty advanced. Any judgment by the US courts against torture will reverberate around the world and many more people and victims of torture would benefit from it. Any other African country that practices torture will learn from this. Also, the US District Judges cannot be purchased by the corrupting influence of the Nigerian officials. Further, the applicable rules: substantive laws and procedures are well founded and the American judges will be able to redress my injuries to the fullest extent that they are compensable. Finally, you may realize that EFCC over the years had carefully concealed its true nature from the Americans, who have continued to provide financial and material support to the EFCC. The involvement of the American courts in investigating and adjudicating these atrocities would create a good foundation for US Congressional interest in these matter and eventual stoppage of the American funding of the EFCC.”
In the first of the series, Elombah.com examines the pleading filed by Ugwuonye and the articulation of the factual background to this highly important lawsuit. The salient parts of the claims, reflecting the liberal pleading traditions of the American legal system, states as follows:
IV.FACTUAL BACKGROUND [from Ugwuonye's motion]
27.The assault, crimes against humanity, violations of civil and human rights, and torture of Plaintiff Ugwuonye occurred within the territory of the country known as the Federal Republic of Nigeria ("Nigeria"). Nigeria was established on October 1, 1960, when it gained its independence from the United Kingdom. It subsequently became a republic in 1963, under a republican constitution.
28.Nigeria is ravaged by ethnic and religious conflicts, which have often led to major violence, including a civil war. Less than six years after gaining its independence, Nigeria was plunged into political crisis that culminated in pogroms and genocidal massacre of millions of people mostly of the Igbo ethnicity, to which Ugwuonye belongs, by fellow Nigerians of some of the other ethnicities, to which most of the Defendants belong. These events ultimately led to the Nigerian civil war that lasted for 30 months. The war led to the death of millions of mostly children and civilian population of the Igbo people, and the forcible unification of the territories known as present day Nigeria.
29.Since the official end of the Nigerian civil war, ethnicity has remained the most significant factor of conflict in Nigeria. Ethnic conflicts and the quest for ethnic domination, especially the domination of the Igbo people and the adjourning minority ethnicities by the rest of the country has led to government policies that facilitate the abuse of the rights of the minority groups, abusive exploitation of natural resources located in the minorities’ territories without due process and in violation of international law, the blinding exploitation of the Nigerian masses by a kleptomaniacal elite that controls the governance of that country at any point in time to date, the poverty and impoverishment of the masses of the population by a rapacious set of leaders and their cronies, and a continued failure to steer the country in the direction of meaningful progress comparable to experiences that obtain elsewhere even in the region.
30.Nigerian government has historically been a regime that has used force, fear, torture, and murder and other violations of human rights in order to prop up its autocratic regimes (whether military or civilian) and to ensure that the inhumane and barbaric policies and practices of repression, brutality, exclusion, torture, plunder of the natural resources of the people, violence, unjust exploitation of their citizens, rigging of elections or forcible overthrow of elected governments, looting and official corruption, are imposed upon its unwilling and powerless population.
31.Furthermore, Nigeria frequently defies international law by engaging in acts and patterns of conduct that clearly violate United Nations Charter, customary international law and international treaties; and jeopardizes world peace by engaging in acts that reasonably threaten to provoke civil wars and potential mass migration of millions of people and refugee crisis. Also, Nigerian officials, through corruption, encourage and support acts that threaten other nations and render it unable to perform functions and duties it owes as a nation under international law, including the encouragement of activities that undermine international commerce, like trans-border fraud and scamming with the instrumentality and involvement of the machinery of the state, and other international economic crimes.
32.The EFCC is an agency of the Nigerian Government. It has the capacity to sue or be sued in its own name. It is charged with the function of investigating certain categories of economic crimes as set forth under the Nigerian law that established it.
33.Under the color of law, the EFCC has violated the rights of people and has become an instrument of political persecutions of perceived enemies of the Nigerian Government, all under the guise of fighting corruption. EFCC indicts people without evidence or probable cause. The EFCC has prosecuted people merely because they held different opinion to government officials. By a combination of incompetence and corruption, the EFCC officials have repeatedly taken money from highly placed individuals and charged their enemies to court without evidence.
34.In pursuit of its repressive practices, the EFCC intimidated the Attorney General of Nigeria and refused to allow the latter to perform his constitutional duty of supervising the EFCC and setting forth the rules and regulations for the EFCC as mandated by the law establishing the EFCC. Instead, a few individuals at the top the EFCC of have usurped the power of the EFCC and used same to enrich themselves and to persecute their personal enemies and the perceived enemies of the Government.
35.The EFCC lacks capacity and competence. Yet, it has assumed all manner of power over Ugwuonye. Its officers, using its resources and facilities and acting in its name, tortured Ugwuonye, assaulted, falsely imprisoned him, violated his civil rights, humiliated and degraded him, and subjected him to inhumane treatment. The EFCC officials commit several atrocities including torture and extra-judicial killings.
36.Those who run EFCC are powerful people in the Nigerian law enforcement. They have guns and powers to maim and kill. They derive enormous personal benefits, wealth and influence by holding their positions. Any threat to those positions or privileges that come with them would attract a death wish from the EFCC leadership. It is believed that some of the leaders of the EFCC have been involved in assassinations to protect and cover up their acts in their current positions.
37.Though Nigeria is a country marked by high level of ethnic rivalry, the EFCC is deliberately staffed in such a manner to disadvantage people of Ugwuonye’s ethnicity, and the EFCC resisted the effort of the present Attorney General of Nigeria to put in place a regulatory framework to cure the effects of the lopsided staffing structures of the EFCC and its discriminatory practices based on ethnicity. For example, while in detention within the EFCC cell, the officials of the EFCC usually discussed Ugwuonye’s detention in his presence, but in their ethnic language, which they knew Ugwuonye did not understand. The EFCC officials repeatedly refused to speak the Nigeria’s official language, which is English, in the presence of Ugwuonye. The effect was that Ugwuonye’s case was discussed in his presence without his ability to understand what was being said. That was a deliberate act to keep Ugwuonye uninformed about his case and hence unable to communicate with his lawyers regarding his case.
38.Plaintiff Ugwuonye trained as a lawyer in Nigeria, becoming a member of the Bar of the Supreme Court of Nigeria in 1992.
39.Plaintiff also attended Harvard Law School and graduated in the LLM Class of 1994, and became a member of the Bar of the Supreme Court of New York in May 1995.
40.Upon graduation from Harvard Law School, Plaintiff worked at Harvard as policy advisor at the then Harvard Institute for International Development, and also taught law and policy at Harvard.
41.In 1996, Plaintiff was hired as Counsel in the office of the General Counsel of the International Bank for Reconstruction and Development (World Bank Group) in Washington DC.
42.In 2001, Plaintiff’s work at the World Bank and at Harvard and his academic record both in Nigeria and at Harvard University commended him to the attention of the Nigerian Government when the former President of Nigeria, General Abdulsalami Abubakar, was sued in a US federal court.
43.From the Abubakar case, Plaintiff developed a professional relationship with Nigerian Government and its Embassy in Washington DC between 2001 and 2008. In the course of that relationship, Plaintiff acted as counsel in the United States to the Government of Nigeria, often through its Embassy in Washington. Among cases handled by the Plaintiff for Nigerian authorities are the Abubakar case, the Nigerian Airways case and the sale of 5 real estate properties of the Nigerian Government in Washington DC, and Maryland, as well as the purchase of one property in Maryland.
44.Between 2001 and the end of 2007, relations between the Government of Nigeria was a workable relationship. As an emerging democracy with limited experience on rule of law issues, Plaintiff was among a narrow group of professionals in the western world that advised the Government on various aspects of global best practices on diplomacy, democracy and rule of law and accountability. This position did create tense moments where Plaintiff advised the Nigerian officials against entrenched habits of right abuses and dictatorship. Despite this, the situation remained hopeful and optimistic. However, from January of 2008, with a new Government in office and a new Ambassador in Washington, relationship between the officials of Nigerian Government and the Plaintiff took a sudden turn in a cold and hostile direction.
45.A marked turning point in relations between Plaintiff’s law firm and the new set of Nigerian officials occurred on Saturday, January 12, 2008 in London. A recently appointed Attorney General under President Yar’Adua had invited Plaintiff to a meeting in London. In this meeting, the Attorney General of Nigeria made an unlawful request of the Plaintiff, which the Plaintiff could not grant.
46.There arose a serious dispute between the Government of Nigerian and Plaintiff’s law firm over professional fees owed to the Plaintiff’s firm. The Embassy of Nigeria initiated a lawsuit against Plaintiff in the United States District Court for the District of Columbia, titled Embassy of the Federal Republic of Nigeria v. Ephraim Emeka Ugwuonye, et al. Civil Case Number 10-cv-01929. While the lawsuit was pending in court, the Government of Nigeria decided to prevent the court from hearing Plaintiff’s defenses. The Defendants therefore kidnapped and detained Plaintiff in Nigeria and tortured him for information they needed for the prosecution of their case.
47.Ugwuonye was abducted at the Lagos airport on February 13, 2011 by the SSS and he was tortured right from the moment he was abducted all at the request of [Ambassador] Adefuye and [Mrs. Farida] Waziri. On February 14, 2011, the SSS handed Ugwuonye over to the EFCC on the request of Waziri. After five days of intense beatings and solitary confinements without access to anyone, Ugwuonye was taken 400 miles to the city of Abuja on February 18, 2011, where the torture and abuse of his rights continued.
48.Ugwuonye was further interrogated and detained in the EFCC cell by the agents of the police on the orders of Waziri and Adefuye in collaboration and active connivance of the other Defendants.
In the next series to be published on Wednesday, June 13, 2012, Elomba.com will focus on the defendants in this suit – who they are and what each defendant did.
