Senior Advocate of Nigeria, Femi Falana, in this interview, speaks about the urgency in probing the alleged diversion of the $3.4 billion International Monetary Fund (IMF) COVID 19 loan. The chairman of Alliance on Surviving COVID-19 and Beyond (ASCAB), a coalition of 70 labour and civil society organisations (CSOs), whose body filed for the probe, also speaks of the Cybercrime Act and why the office of the Attorney General of the Federation (AGF) should educate the police to obey the amended portion of the Act. CHIBUIKE CHUKWU brings the excerpts
Many Nigerians are wondering how you came about the fact that the COVID-19 loan from the IMF was diverted; can you lead us into this?
Revealing that the money was diverted wasn’t our idea. We stumbled on the report of the Auditor General released in January last year in respect of the federation account for 2020. And it was the Auditor General that revealed that there were problems with the way the money was disbursed and that documents were not produced by the Central Bank of Nigeria (CBN) and the Federal Minister of Finance to explain the disbursement of this huge fund and our position is that at the material time, things will be known. I think some of us called on the government to investigate the diversion of the fund as usual and there was no response on the part of the government. So if we are now called upon as a nation to celebrate the payment of the loan even though we still have to pay some charges between now and 2029, we have a duty to call on the government to respond to the queries, serious queries raised by the Auditor General of the Federation. I’m not talking about SERAP or any of the NGOs; I’m talking of the queries raised by the Auditor General of the Federation. So that’s how we came about the information. Nobody has challenged our statement that we’re making up any story.
So who should be doing the probing now that the Auditor General has cried foul? Who would you think should do the probing? Is it the Economic and Financial Crimes Commission (EFCC) or is it the police or is it the IMF itself?
By virtue of Section 85 Sub-section 5 of the constitution, the report of the Auditor General shall be submitted to both Houses of the National Assembly and both Houses have a duty to request the Public Accounts Committee to consider the report and bring a resolution to the plenary. Again, both chambers of the National Assembly have abdicated their constitutional responsibility in this regard. We have sent a letter following our statement. We sent a letter to the National Assembly, asking for a report of the consideration of the Auditor General’s report and, beyond this, we must not reduce the office of the Auditor General of the Federation to an NGO. The report of the Auditor General on a yearly basis must be considered by the National Assembly and resolutions will have to be passed to appropriate agencies of the government and if an investigation should take place by the EFCC or the Independent Corrupt Practices and Other Related Offences Commission (ICPC) or the police, it is the duty of the National Assembly to so recommend but we can’t just allow the Auditor General to come up with reports every year, detailing the criminal diversion of our scarce resources and only just to ignore those reports and I’m also appealing to the media. I mean politicians can engage in defection or whatever. Please let us discuss the governance of our country. Let’s discuss the way and manner the resources of the country are managed so that we can promote public accountability. This is what our intervention is all about.
You know it’s also curious that out of all the loans that Nigeria has collected from every source, this particular one, COVID-19 loan, the government said it has fully repaid and now you’re saying some of them have been diverted according to the report of the Auditor General. Also, one would be wondering is it the institution that gives a loan that should bother about how the loans are used?
When a bank gives a loan, even domestically, you also expect some kind of follow-up. In other words, if I apply for a loan to revitalise an ailing company, the bank has a duty in order to ensure payment of its loan and it has to make sure that the money is not diverted towards purchasing vehicles or buying houses in Europe and America. In the same manner, the IMF and the World Bank have a duty particularly when they are giving loans to countries that are considered poor or countries where underdevelopment is the order of the day. The bank, either bank or both institutions, has a duty to monitor the disbursement, the spending of the money. In this case, when the IMF board approved the loan on April 28, 2020, it did announce that they are going to monitor the disbursement of the fund. Consequently, we have also written a letter to the board of the IMF to explain why the fund was not managed properly. This is an agency that is jointly running the economy of Nigeria. The Nigerian economy is known as a neo-colonial peripheral capitalist economy. So, these guys are jointly controlling the economy of Nigeria. Just yesterday, the World Bank was making a spurious claim that the money generated from the removal of fuel subsidy, put it in the federation account. Don’t distribute it to the three tiers of government. So, these guys, these institutions have such an overbearing influence on the way and manner the economy is run. Therefore, you cannot stand aloof. I have been given a huge loan of 3.4 billion dollars. If the money was not spent to address the challenges of the COVID-19 pandemic, the CBN cannot behave like Pontius Pilate. That is the basis of our petition. What happened? Why are you collecting this loan when you are aware that it was not spent in line with the terms of the loan? That’s our position.
Now, would the IMF still be bothered even after the loan has been repaid by the government?
It has a duty to investigate. Oh yes, it’s official that it failed or refused deliberately to monitor the movement of the money, the disbursement of the money. That’s a case to answer.
Well, let’s come back to your statement about how the money was disbursed and I want to quote from it. You wrote in that statement that, and I quote, the audit also revealed in August 2020, the Minister of Finance requested the monetization of 700 million dollars to fund the national budget. The CBN approved a debit of 265.65 billion naira at an inflated exchange rate, distributing 252 billion naira to the COVID-19 public sector account, 13.3 billion naira to the equalisation account, and 350 million naira to the exchange commission account. You also talked about a questionable 2% commission deducted from the transaction. By the end of 2020, a staggering 2.7 billion dollars, the equivalent of 1.02 trillion naira remained unaccounted for. Now, when you’re talking about a $3.4 billion loan now, and then 2.7 billion of it has not been accounted for, where does that put the Nigerian people in all of this? Because if my reading is correct, the COVID-19 funds taken from the IMF were meant to supplement or help the Nigerian people, the government, and the people to navigate the lockdown period when business virtually cramped to a halt around the world?
The COVID-19 loan, I mean the 3.4 billion dollar loan, was given to the government; they applied for it, and it was stipulated what the money was going to be used for. Now, the COVID-19 challenge for the request for the money was based on the fear of the government that oil was not going to be sold internationally in a way that would run the country, fund appropriate agencies of the government, and so on and so forth. So, the Auditor General is alleging that this money was not used to address the challenges of COVID-19. On the contrary, the money was diverted by the Central Bank of Nigeria for other purposes. The exchange rate was manipulated, and the question is, the Commission was scheming for what? You are collecting a loan directly from the IMF for the government. So, were you the one that wrote the proposal to have the loan or what? Because Nigeria is a member of the IMF. So, what was that two percent of 3.4 billion dollars meant for? And the auditor general is saying this and nobody has responded to his question. When he asked for a document to back up the spending of the money, it was not made available. So, I think these are very serious questions that should not be directed to me, because we’re simply commenting on the report of the auditor. You are bringing it back to the public domain. It is your duty and mine to know, as the Central Bank Management, the Minister of Finance, and the National Assembly, most members of the National Assembly, to revisit the report of the Auditor General and give Nigerians an acceptable explanation in line with the demands of public accountability in our country. This is based on the report of the Auditor General of the Federation, not based on the report of an NGO, or some people.
Away from the IMF loan and the alleged diversion; let’s talk about the Cybercrime Act. Many people are wondering why Nigerians seem to be kicking against the Cybercrime Act. Nigerians still feel that the Act is still being used to oppress journalists, sometimes even members of civil society organisations. What do you think about this?
Well, in 2015, the Cybercrime Act was enacted by the government. Some provisions were found fairly objectionable. So, SERAP and other organisations separately approached the ECOWAS Court to review the provisions, particularly Section 24 of the Act, and we see this Article 9 of the African Charter on Human and People’s Rights, which Nigeria has not only ratified, but also enacted into law. Now, that section criminalised freedom of expression by saying if you annoyed your neighbour, if you defame another citizen, and so on and so forth, you will be deemed to have committed an offense, you will be tried before the court, convicted, and sentenced to imprisonment or payment of fines. The ECOWAS Court, in respect of the two separate cases, held that the provision was not in line with the guarantee, constitutionally guaranteed freedom of expression, also guaranteed by the African Charter on Human and People’s Rights, and that therefore, Nigeria should and was directed to review the Act with a view to removing areas that were repulsive or obnoxious, or rather against the provisions or the right of Nigerians to freely express themselves. Now, we mobilised at the National Assembly because some of their members, 40 of our members of the ECOWAS Parliament are at the National Assembly then. So, if the ECOWAS Court has given a decision, and you are members of the ECOWAS Parliament, you have a duty to ensure compliance with the judgment. So, good enough, the National Assembly passed a bill to amend the law by removing those objectionable provisions. So, I think, February last year, 2024, the amendment was passed by the government of Nigeria, and section 24 was then reduced to decriminalisation of sending, using the computer to send pornographic materials or to threaten the life of any person in the country. But in spite of the amendment, they have continued to go that obnoxious way. But in one of the cases which were handled in the court, the Federal High Court did rule that yes this law has been amended, but for now, they are going to have this guy tried under the old law because at the time the offense was allegedly committed, the law was in place. However, we agreed that the law had been amended. In spite of that judgment of the court, which was circulated, which had been published by the media, Nigerians are still arrested, detained and charged for committing cyber-stalking, annoying personalities in the country. So, what we’re saying, therefore, is that we need to realign. I mean, the police should be advised by the Office of the Attorney General of the Federation to comply with the Cyber Crimes Act 2015 as amended in 2024 as a procedure. Just comply, and in other words, if you are lying there, or you are defamed by any journalist or any other citizen, your choice is to file a civil action in court to defend your name, which you allege has been defamed. You cannot use the instrumentality of the state to subject anybody to trial for libeling you, or for defaming you, or for annoying you, or for insulting you. This is the possession of the law today.
Where does one draw the line between freedom of expression and also using some defamatory statements, especially on the social media space, when you want to say anything about or holding the government or anyone in the government to account…
There is no freedom that is absolute. In exercising your freedom of expression, you must also take cognizance of your duty not to injure the reputation of other citizens or to subject them to blackmail. But if you do, and you have a person offended, the injured person is asked by the law to go to a civil court. It is the responsibility of the civil court to ensure that justice is meted out speedily. You know, most of the time people rush to the police or the EFCC because they have lost confidence in the regular court. So you criminalise every complaint in an attempt to get back at your opponent. But if the system works, somebody files a civil case, a lighter case, and the case is speedily heard, the question of rushing to the police to settle the scores will no longer arise. But I saw as far back as 1982, the Court of Appeal had held in the case of the state that the freedom of expression gained from the colonial masters must not be allowed to be toyed with by the government. If anybody feels offended by any publication, you file a civil action where you put your own character in it. The police must realise this and they should encourage those who lodge a complaint, or advise those who come to lodge a complaint of cyber stalking that somebody has insulted me, somebody has annoyed me. No, no, no, no. It is no longer the duty of the state to criminalise freedom of expression in the country. Three states —Lagos, Ekiti and Edo — have already decriminalised that area of freedom of expression, which is where you talk of criminal defamation. Those three states have already expunged the provisions of the criminal code with respect to criminal defamation. It is not only for the media, the human rights community and stakeholders, to draw the attention of other state governments to what the three states have done with the view to decriminalise freedom of expression as it has been done in countries like Ghana, Liberia and Sierra Leone.