War On Corruption: Making a Fetish of the Malabu Deal, By Majeed Dahiru
The war on corruption has been more of name calling, media circus trials and pronouncements of guilt, even before people involved are charged to court. The unfortunate characterisation of individuals as corrupt, even before their formal conviction is in itself a form of corruption. This betrays the selectively vindictive nature of the current administration’s war on corruption.
In a dramatic twist of events in the trial of the former attorney general and minister of justice, Mohammed Bello Adoke, over his role in the Malabu oil deal, the chief prosecuting officer and current attorney general and minister of justice, Abubakar Malami has evidently corroborated the claim of innocence of the chief defendant. At the resumed hearing of a civil suit filed against the federal government by Bello Adoke before a federal high court sitting in Abuja on January 24, documentary evidence that was placed before the presiding Judge Binta Murtala Nyako, gives a clearer picture of the truth behind the facts of the Malabu oil affair. The piece of evidence, which emanated from the current attorney general and minister of justice, not only answered the prayers sort by the plaintiff in this civil suit as the chief defendant, but also called to question the sustainability of the concurrent criminal proceedings instituted against Messers Bello Adoke, Dan Etete and others fingered in a deal that is now being challenged as an act of fraud by the EFCC, which is the chief prosecutor.
This piece of evidence is in the form of a letter written by the attorney general and minister of justice, Abubakar Malami to the acting chairman of the EFCC, dated September 20, 2017; referenced as: DPPA/FMPR/198/17 and titled: “RE: FORWARDING OF CASE FILE IN RESPECT OF CHARGE NO. FHC/ABJ/CR/268 MALABU OIL AND GAS LTD.” In what appears to be a validation of the claim of innocence by Bello Adoke, AGF Malami states in clear terms in this communication that, “having fully examined the entire case file, I am inclined to request you to reconsider the charge in relation to the composition of the parties, the offences, the proof of evidence and the case summary in view of the fact that nothing in the proof of evidence appears to have directly linked the parties to the offences as charged.” AGF Malami states further that, “A curious observation of the entire file clearly indicates that the proof of evidence is unlikely to support the counts which border on fraud, conspiracy and money laundering.”
Fundamental to the civil suit filed against the federal government by Bello Adoke, praying the court to determine, among other things, whether a public officer is liable to face criminal prosecution as a consequence of carrying out a lawfully delegated responsibility by the president of the federal republic, is the aspect contained in paragraph 6 of the letter. This goes: “Furthermore, I am of the view that the Public Officers Protection Act CAP P14, Laws of the federation of Nigeria 2004 limits liability of Public Officers to a period of 3 months following acts which are complained of, unless if the acts were not within the mandate of the functions of the Public Officer, and your investigation needs to have covered that eventually in view of the claim that the acts were authorised by 3 Presidents before the current administration.”
Further investigation also revealed that AGF Malami had also written to President Muhammadu Buhari on issues surrounding the Malabu oil deal. In a correspondence dated September 15, 2017; referenced as: DPPA/FMPR/198/17 and titled: “RE: FORWARDING OF CASE FILE IN RESPECT OF CHARGE NO. FHC/ABJ/CR/268/17 AND FCT/HC/CR/124/2017 MALABU OIL AND GAS LTD, while reiterating the foregoing observations to the president, the AGF went on to state thus, “the idea of revisiting the settlement agreement which resulted in the sale of the oil field to SNUD, SNEPCO and ENI is not workable. It is important in this regard for His Excellency to note the following:
a. The agreement was executed by the highest authority in the Nigeria and must be defended unless it is eventually set aside by the decision of a competent court of law. The agreement has its mechanisms for compensation in the event any of the rights conferred to ENI or SHELL (is) challenged or violated. For the FG to revisit the agreement, the consent of SHELL and ENI will be required.
…Malabu’s OPL 245 was sold 100 percent to SHELL/ENI for $1.1 billion, but in this case the federal government got paid the highest signature bonus ever of $210 million, as against Sapetro’s $20 million. Yet, no one is being prosecuted for the Sapetro/CNOOC transaction. In essence, the legal advice of AGF Malami certifies the Malabu deal as being in order under the circumstances that it was brokered.
b. It is very unlikely that the consent will easily be obtained but rather they would rely on the protection afforded in the contract and any unilateral effort by FGN to vary the terms of the Agreement would probably open up a new bout of litigation, defer further investment, give rise to a claim to damages and payment of huge legal fees.”
AGF Malami, also advised the president on the implication of violating any of the terms of the settlement agreements: “FGN confirms that the terms of this FGN resolution agreement have been agreed to by all the appropriate agencies of the FGN, including ministry of finance and the Federal Inland Revenue Service”, hence “all commitments are binding on the FGN. ENI/SHELL legitimately expects that the FGN would respect the commitments. Failure by the FGN to respect them would cast Nigeria in a very bad light internationally and negatively impact the FGN’s quest for foreign investments.”
Distillable from the legal opinion of the attorney general and minister of justice, is that the Malabu oil deal was authorised by three former presidents and was essentially a normal private business transaction between a group of oil mineral development companies, with the federal government only acting in the capacity of a neutral arbiter in a conflict it created originally in the way and manner that OPL 245 was first awarded, revoked and re-awarded. Such transactions are not without precedence. Theophilus Danjuma’s South Atlantic Petroleum Limited (Sapetro), which was coincidentally awarded OPL 246 in the same year (1998), by the Sani Abacha regime, under the similar condition of paying a discounted signature bonus rate of $20 million, like Dan Etete’s Malabu OPL 245, divested 45 percent of its stake to CNOOC of China and walked away with $1.7 billion in pocket. By contrast Malabu’s OPL 245 was sold 100 percent to SHELL/ENI for $1.1 billion, but in this case the federal government got paid the highest signature bonus ever of $210 million, as against Sapetro’s $20 million. Yet, no one is being prosecuted for the Sapetro/CNOOC transaction. In essence, the legal advice of AGF Malami certifies the Malabu deal as being in order under the circumstances that it was brokered. It also acknowledges that all relevant agencies of government were fully involved in the settlement agreement, hence making it ridiculous to single out the former AGF Bello Adoke, who was only carrying a delegated lawful order from the highest authority at the time, for criminal prosecution by the EFCC, acting on a petition that was essentially a shareholder’s dispute, having nothing to do whatsoever with government.
The truth behind the facts that have shrouded the Malabu oil deal in mystery, which have been made fetish of by a vindictive war on corruption has further exposed the lack of due investigative diligence on the part of the EFCC. By making an obsession of the Malabu oil deal, the anti-corruption agencies of government have only succeeded in entertaining the impressed mob of down trodden Nigerians baying for the blood of the rich and successful, which the political managers of Buhari’s war on corruption portray as enemies of the common people. Otherwise, why institute a criminal prosecution against a set of people without any substance of evidence directly or indirectly linking these people to the purported crime, other than for the purposes of political persection? The war on corruption has been more of name calling, media circus trials and pronouncements of guilt, even before people involved are charged to court. The unfortunate characterisation of individuals as corrupt, even before their formal conviction is in itself a form of corruption. This betrays the selectively vindictive nature of the current administration’s war on corruption.