HOW FAR CAN FALANA ANTI-CORRUPTION CRUSADE AGAINST DASUKI AND OKONJO IWEALA AT THE ICC GOES?

The ongoing debate between the erstwhile Nigeria Minster of Finance- Dr Ngozi Okonjo Nweala and the respected human right activist, Bar Femi Falana, SAN is fast becoming a national issue especially as regarding the case filed by the later at the International Criminal Court (ICC). This on-going debate boarders on the legality and power of the ICC to try Okonjo Nweala and Dasuki for grand corruption committed during the regime of President Goodluck Jonathan.

According to the ICC statute; there are four grounds for which the ICC can prosecute individuals for crime(s) committed by them. In this vein, Article 5 of the statute says ipso facto - 

1. "The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression. 2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations."(Emphasis mine). 

Subsequent articles (precisely article 6-9) defined what constitutes genocide, crime against humanity, war crimes and crime of aggression. See  https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf for more. 

Without preempting the case, there is nothing directly in the Statue which could qualify Corruption as international crime. This is because corruption like terrorism is yet to receive a global consensus on whether to be classified as international crime despite their grave and heinous consequences on humanity. 

Perhaps, this is the basis for which the Media Officer of the Minister based his argument. In his words:

" This misadventure shows that the so-called learned lawyer does not have any idea of what the mandate of the ICC is about. “He has resorted to this action because his previous efforts to tarnish her name  – through his discredited NGO, SERAP and petitions to the EFCC – failed because they were lacking in credibility." 

 Be that as it may, we have of the view that the pernicious effect of corruption on Nigerians especially the victims of Boko Haram could as well passed for war crimes as not less than ten thousands lives have been wasted due to inadequate weapons and equipment to prosecute the war.

But the question arise here as to whether Nigeria lack the necessary machinery and political will to prosecute her nationals for the crimes committed within her boarders. Another argument which may arise is whether an official of government can be prosecuted for official acts based on the concept of 'diplomatic immunity' especially if the Minister is to be arrested from oversea. A good case is the case of the erstwhile Minister of Foreign Affairs in DR Congo when Belgium declared him wanted. The learned Judges of the ICJ in their wisdom submitted thus:

"The Court found that the issue and international circulation by Belgium of the arrest warrant of 11 April 2000 against Abdulaye Yerodia Ndombasi failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Congo enjoyed under international law; and that Belgium must cancel the arrest warrant.

In its Judgment, which is final, without appeal and binding for the Parties, the Court found, by 13 votes to 3, "that the issue against Mr. Abdulaye Yerodia Ndombasi of the arrest warrant of 11 April 2000, and its international circulation, constituted violations of a legal obligation of the Kingdom of Belgium towards the Democratic Republic of the Congo, in that they failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo enjoyed under international law"; and, by 10 votes to 6, "that the Kingdom of Belgium must, by means of its own choosing, cancel the arrest warrant of 11 April 2000 and so inform the authorities to whom that warrant was circulated".
The Court reached these findings after having found, by 15 votes to 1, that it had jurisdiction, that the Application of the Democratic Republic of the Congo ("the Congo") was not without object (and the case accordingly not moot) and that the Application was admissible, thus rejecting the objections which the Kingdom of Belgium ("Belgium") had raised on those questions."

If this case is heard in favour of the learned lawyer, then it may be the beginning of good things to come as it will help to checkmate official recklessness and irresponsibility of public officials all over the world but particularly in Africa.