A group of anti-corruption organisations has asked the Attorney General of the Federation, Abubakar Malami, to explain the inconsistencies between his letter to President Muhammadu Buahri asking him to call off the prosecution of the main suspects in the Malabu oil deal, and the federal government’s application to a United Kingdom court that led to the repatriation of $85 million from the proceeds of OPL245 frozen by the court.
The group, which includes, UK-based Global Witness, The Corner House, Italy-based Re:Common and Nigeria’s Human and Environmental Development Agenda (HEDA), in a letter dated February 22, 2018 but made available to PREMIUM TIMES on Friday, gave Mr Malami until March 1 to clear the inconsistencies in his position and that of the federal government.
Last October, during a meeting on assets recovery in Abuja, Mr. Malami announced that the Nigerian government had successfully repatriated $85 million from the Malabu funds from the UK.
However, surprisingly, in a letter to Mr Buhari, Mr. Malami advocated for the government to drop the charges against the chief suspects, including his predecessor, Bello Adoke, former petroleum ministers, Diezani Alison-Madueke and Dan Etete, in the alleged bribery scandal.
In the letter, Mr. Malami had argued that his examination of the case file showed that there was no significant evidence to prove sharp practices by the accused persons.
He further argued that going ahead with the prosecution of the suspects will portray Nigeria in bad light before the international community and foreign investors, who could see Nigeria as a country that could not be trusted to respect its obligations to international partners.
Similarly, in another memo petroleum minister, Ibe Kachikwu, also advised Buhari to cede controversial OPL 245 oil bloc to oil firms, Royal Dutch Shell and Eni.
In the leaked memo, Mr. Kachikwu told Mr Buhari that he aligned with the advice of Mr Malami that the federal government should respect the resolution of the Settlement Agreement as it was consistent with “the consistent role of three (3) predecessor presidents in the matter, and the potential negative view of Nigeria that may follow should international arbitration ensue from this matter.”
Mr. Kachikwu added that if Mr. Buhari decided to go against the Settlement Agreement or “take steps that will undermine its integrity” it may turn out costly for the country.
The oil minister then explained that instead of abrogating the agreement, the Nigeria government should use it as a means of acquiring a stake in OPL 245 by converting it to a Production Sharing Contract (PSC) with Shell and Eni.
But following a counter-memo by the acting chairman of the Economic and Financial Crimes Commission (EFCC), Ibrahim Magu, the president overruled the AGF and directed the EFCC to proceed with prosecution of the accused.
Quoting from the statement of claim presented by the Nigerian government to the UK court towards the repatriation of the Malabu fund, the group highlighted two main claims made by the Nigerian government that are inconsistent with Mr. Malami’s latter-day decision that there was insufficient evidence to prove that the accused acted wrongly.
“At paragraph 4, the FRN’s Statement of Claim states: “Malabu received funds as a direct result of corrupt acts performed by the mind, management and controlling will of the Defendant Chief Dan Etete [‘Etete’], the former Minister of Petroleum Resources, who by entering into a corrupt arrangement with an oil consortium was able to obtain in excess of USD$1billion . . .”
“At paragraphs 44-55, the FRN sets out in considerable detail the “unlawful and criminal offences” committed by Mr Etete in relation to OPL 245. The FRN is explicit that: “estate’s conduct in the use of Malabu as a front for his activities breached the Code of Conduct for Public Officials”
“UNLAWFUL AND CORRUPT AGREEMENT”
The group also reminded Mr Malami that the Nigerian government had described the Resolutions Agreements, which he advised the president to take advantage of, as “a corrupt agreement”
“At paragraph 29, the FRN states: “. . . the April 29th Agreement reflected a conspiracy to injure the Claimant [the FRN] by unlawful means by depriving the Claimant of monies for the grant of OPL 245 to which it was lawfully and exclusively entitled”.
“At paragraph 30, the FRN states: “The 29 April Agreement was an arrangement which served to camouflage the diversion from the Claimant of the purchase price for the OPL 245 . . . paid for by the joint purchasers Eni Spa and Royal Dutch Shell Plc to the Defendant [Malabu].”
“At paragraphs 40 (under a heading “Unconstitutional and Corrupt Agreement”), the Statement of Claim states: “The mechanisms by which the payments were made was unlawful as being contrary to the Claimant’s constitution”.
“At paragraph 59, the FRN quoted an extensive passage from the judgment of Edis J. in respect of Malabu vs The Director of Public Prosecutions, in which Mr Edis describes the Resolution Agreements as having “an aura of corruption”.
The group then said it was worried by the “glaring inconsistencies” between the federal government’s claim in the UK court and Mr. Malami’s letter to the president.
“We simply fail to understand how there could be no case for Mr Etete and others to answer in Nigeria when the FRN has sought redress in a court in the UK on the explicit basis that Mr Etete’s actions were “corrupt”, “unlawful” and “criminal”. We also note that Mr Etete, Shell, Eni, senior Shell and Eni executives and others are being prosecuted in Milan.
“We are similarly dumfounded that you should have argued to the President that the Resolution Agreement with Shell and Eni is “sacrosanct” when the FRN’s lawyers (acting on your behalf) have described the said agreement as “unconstitutional”, “corrupt” and “a conspiracy” to defraud Nigeria.
“Mr Attorney-General, we are bound to conclude that we have either misunderstood your letter or (and it pains us to even suggest this) that the UK courts were misinformed.”
The group then took time to lecture Mr Malami over his argument that going ahead with the prosecution of the accused will tarnish Nigeria’s image in the international community. According to group, real investors will be horrified by Mr Malami’s position instead.
“On the face of it, your letter (when taken together with the FRN’s pleadings in the UK court) suggests that Nigeria’s Chief Law Office is willing to renegotiate tainted contracts provided the price is right.
“This will certainly be of comfort to some investors: but, we would submit, they are not investors whose activities are likely to be compatible with President Buhari’s commendable fight against corruption.”