Malabu: Activists tackle Malami over letter to Buhari

Four anti-corruption activists have accused Abubakar Malami, attorney-general of the federation, of contradicting himself in the OPL 245.

Malami had written to President Muhammadu Buhari stating that the case against accused persons in the sale of OPL 245 to Shell/Eni by Malabu Oil & Gas Ltd in 2011 could not be sustained.

But in a letter addressed to Malami and shared with TheCable, the activists said the AGF contradicted the argument he is making in a UK court case.

The activists are Nicholas Hildyard of The Corner House, Luca Manes of Re:Common, Olanrewaju Suraju of HEDA and Simon Taylor of Global Witness.

THE LETTER IN FULL

Dear Attorney-General,

RE: OPL 245 – Your Letter of 27 September 2017 to President Buhari

We write in respect of your letter of 27 September 2017 to President Buhari (“RE: FORWARDING OF CASE FILE IN RESPECT OF CHARGE NO. FHC/ABJ/CR/268 MALABU OIL AND GAS LTD.”) to seek your urgent clarification.

In your letter you argued that there is insufficient evidence to support charges brought by the EFCC against Messrs Adoke, Etete and others for corruption-related offences related to the acquisition of the OPL 245 by Shell and Eni. You also described the Block 245 Resolution Agreement, one of three interlocked agreements that enabled the deal, as “sacrosanct” and argue that its clauses preclude prosecution of Shell or Eni officials.

We find it impossible to reconcile the above positions with recent documents submitted by the Federal Republic of Nigeria (FRN) to the UK Commercial Court in support of the FRN’s successful application to repatriate the OPL 245 funds that were frozen, at the request of the Milan magistrate, in London.

Mr. Attorney General, we refer you to the following statements made by the FRN (on your instructions) with respect to (a) Mr Etete and (b) the Resolution Agreements in court documents used in the UK proceedings:

A: Mr Etete

1. 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 . . .”
2. 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:“Etete’s conduct in the use of Malabu as a front for his activities breached the Code of Conduct for Public Officials”.

B: The Resolution Agreements

1. At paragraph 4, the FRN describes the Resolutions Agreements (signed on 29 April 2011) as “a corrupt arrangement”
2. 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”.
3. 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].”
4. 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”.
5. At paragraph 59, the FRN quoted an extensive passage from the judgment of Edis in respect of Malabu vs The Director of Public Prosecutions, in which Mr Edis describes the Resolution Agreements as having “an aura of corruption”.

It was on the strength of these claims that the FRN was successful in the persuading the UK courts of its case, which led to eventual repatriation of USD$73 million (approximately 2 billion naira) for the benefit of the Nigerian people.

Mr. Attorney-General, we have the greatest respect for your office but, in the light of the above, we would be wholly remiss if we did not convey our dismay at the glaring inconsistencies between the case argued by the FRN in the UK Courts and your September 2017 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.

We would therefore request that, as a matter of urgency, you clarify your position. We would ask that you confirm that the statement made by the FRN in its UK claim remains a true statement of the position of the FRN and that there is nothing in your letter to the President that should be read as to the contrary.

We would ask that you respond by 1st March 2018.

Finally, as friends of Nigeria, we feel obliged to report that your letter to the President is causing considerable alarm within anti-corruption circles internationally.

We understand the need to reassure investors that contracts will be respected. But we know of no jurisdiction where corrupt contracts (the FRN’s own description of the Resolution Agreements) are valid. Indeed, far from being reassured by the stance you have apparently taken, many investors will be appalled. 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.

We regret being this candid but would ask you to accept that we have only the interests of Nigeria and its peoples at heart. We would therefore ask that you clarify your position as a matter of urgency.