SERAP asks ICC to investigate alleged missing N11tr electricity fund

(Nigeria) Socio-Economic Rights and Accountability Project, SERAP,  has asked Mrs. Fatou Bensouda Prosecutor International Criminal Court, ICC,  to use her “good offices and leadership position to investigate whether the allegations of widespread, systematic and large-scale corruption in the electricity sector since the return of democracy in 1999 and under the governments of former presidents Olusegun Obasanjo, Umaru Musa Yar'Adua and Goodluck Jonathan in Nigeria amount to crimes against humanity within the jurisdiction of the International Criminal Court, and to prevail on the Nigerian government to surrender all suspected perpetrators for trial by the ICC.”

Nigeria is a state party to the Rome Statute and deposited its instrument of ratification on 27 September 2001.

 In the petition August 16, 2017 and signed by SERAP deputy director, Mr Timothy Adewale,  the organisation said that, “Allegations of corruption in the electricity sector in Nigeria have had catastrophic effects on the lives of millions of Nigerians, akin to crimes against humanity as contemplated under the Rome Statue and within the jurisdiction of the Court.”

According to SERAP, “The Rome Statute in article 7 defines ‘crime against humanity’ to include ‘inhumane acts causing great suffering or injury,’ committed in a widespread or systematic manner against a civilian population. The common denominator of crimes against humanity is that they are grave affronts to human security and dignity.  Therefore, the staggering amounts of public funds alleged to have been stolen over the years in the electricity sector create just these consequences. Crimes against humanity are not only physical violence; allegations of corruption in the electricity sector hold a comparable gravity, which the Prosecutor should examine and thoroughly investigate.”

The petition reads in part: “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; and that the perpetrator knew of that link.

“The consequences of allegations of corruption in the electricity sector are similar to those of the offences in article 7(1). Corrupt officials and corrupt contractors in the electricity sector know well that their conduct is criminal and injurious, and the denial of human dignity coupled with a radical breach of solemn trust, aggravate their alleged crime.

“SERAP considers these allegations of widespread and systematic corruption in the electricity sector as amounting to crimes against humanity and therefore clear violations of the provisions of the Rome Statute of International Criminal Court. SERAP believes that these allegations have given rise to individual criminal responsibility of those suspected of perpetrating corruption in the electricity sector, as entrenched in the Rome Statute of the International Criminal Court.

“SERAP considers the apparent failure of successive governments and high-ranking government officials to prevent widespread and systematic corruption in the electricity sector as amounting to complicity under the Rome Statute. SERAP therefore believes that the widespread and systemic nature of large scale corruption in the electricity sector fits the legal requirements of a crime against humanity.

“The 2006 Commonwealth working group on asset repatriation specifically refers to corruption including in the electricity sector being defined as an international crime. SERAP believes an international investigation by the ICC would complement the anticorruption initiatives by the current government and contribute to ending a culture of impunity of perpetrators.

“SERAP believes that substantial grounds exist to warrant the intervention of the Prosecutor in this case. Pursuant to the Rome Statute, the Prosecutor has power to intervene in a situation under the jurisdiction of the Court if the Security Council or states parties refer a situation or if information is provided from other sources such as the information SERAP is providing in this case.

“SERAP is seriously concerned that the instances of corruption highlighted above and details of which are contained in the enclosed From Darkness to Darkness report are not isolated events, but illustrate the widespread and systematic nature of large scale corruption in the electricity sector under the governments of former presidents Olusegun Obasanjo, Umaru Musa Yar'Adua and Goodluck Jonathan. This level of corruption has limited access to and affordability of electricity in Nigeria.

“Widespread, systemic and large-scale corruption in the electricity sector and the lack of transparency and accountability in the use of public funds to support the operations of Discos have resulted in regular blackouts and disproportionately affected the most disadvantaged and vulnerable sectors of the population who cannot readily afford expensive generators in order to have a reliable power supply. The situation is not likely to improve considering that the production of electricity is not proportionate with the rapidly growing population.

“The African Commission on Human and People’s Rights has adjudged the failure of the States “to provide basic services such as (...) electricity” as violating the right to health.” SERAP argues that Nigeria is bound to make full use of the resources available to ensure regular and uninterrupted supply of electricity, even in times of resource constraints. Under international law, vulnerable members of the society must be protected by the adoption of relatively low-cost targeted programmes even in times of severe resources constraints.

“SERAP also notes that allegations of corruption in the energy sector have resulted in the epileptic and interrupted supply of electricity and corresponding deprivation and denial of the citizens’ access to quality healthcare, adequate food, shelter, clothing, water, sanitation, medical care, schooling, and access to information.

“SERAP notes that lack of access to uninterrupted energy/electricity services has forced many citizens to use and collect frequently contaminated surface water for drinking and household uses; and denied the citizens the ability and services for boiling, purifying, disinfecting, and storing water, as well as for irrigation to increase the productivity of lands, thereby decreasing the availability of food supplies and undermining employment opportunities.

“Under Chapter 2 of the 1999 Constitution of Nigeria (as amended) dealing with Fundamental Objectives and Directive Principles of State Policy, high-level public officials have a clear obligation to “eradicate all corrupt practices and abuse of power. Furthermore, the constitution also prohibits the exploitation of Nigeria’s human and natural resources for any reasons other than for the good of the community. This position is well supported by the provisions of the UN Convention against Corruption to which Nigeria is a state party.

“In the Preamble to the Rome Statute, states parties affirm that ‘the most serious crimes of concern to the international community must not go unpunished; and commit themselves ‘to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.’ The preamble to the UN Convention against Corruption provides that corruption “is no longer a local matter but a transnational phenomenon that affects all societies and economies”.

SERAP therefore asked Ms Bensouda to:

*Urgently commence an investigation proprio motu on the allegations of widespread and systematic corruption in the electricity sector since the return of democracy in 1999, 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 since 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;

*Bring to justice those suspected to be responsible for widespread and systematic corruption in the electricity sector in Nigeria;

*Urge the Nigerian government to fulfil its obligations under the Rome Statute to cooperate with the ICC; including complying with your requests to arrest and surrender suspected perpetrators of widespread and systematic corruption, testimony, and provide other support to the ICC.

It will be recalled that last week SERAP launched its report titled, From Darkness to Darkness: How Nigerians are Paying the Price for Corruption in the Electricity Sector alleging that “the much-publicised power sector reforms in Nigeria under the Electric Power Sector Reform Act of 2005 is yet to yield desired and/or anticipated fruits largely due to corruption, regulatory lapses and policy inconsistencies. The country has lost more megawatts in the post-privatisation era due largely to widespread, systemic and large-scale corruption.”

The report also said that, “The total estimated financial loss to Nigeria from corruption in the electricity sector starting from the return to democracy in 1999 to date is over N11tr.

This represents public funds, private equity and social investment (or divestments) in the power sector. It is estimated that may reach over N20tr in the next decade given the rate of government investment and funding in the power sector amidst dwindling fortune and recurrent revenue shortfalls.”