In a dramatic twist of events in the trial of the former attorney-general of the federation (AGF) and minister of justice, Mohammed Bello Adoke, over his role in the Malabu Oil deal, the chief prosecuting officer and current AGF, Abubakar Malami, have evidently corroborated the claim of innocence by the chief defendant. At the resumed hearing of a civil suit filed against the federal government by Adoke, on January 24, before a federal high court sitting in Abuja, documentary evidence that was placed before the presiding judge, Binta Murtala Nyako, has given a clearer picture of the truth behind the facts of the Malabu Oil affair. This piece of evidence, which emanated from the current AGF, not only answers the prayers sought by the plaintiffs in the civil suit as the chief defendant, but also calls to question the sustainability of the concurrent criminal proceedings instituted against Messrs Adoke, Dan Etete and others fingered in a deal that is now being challenged as a fraud by the EFCC, as the chief prosecutor.
This piece of evidence was in the form of a letter written by the AGF, Malami, to the acting chairman of the EFCC, dated September 20, 2017, referenced 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 confirmation of the claim of innocence by 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.”
Malami stated further thus: “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 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 contained in paragraph 6: “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 three 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 three Presidents before the current administration.”
Further investigation also reveals Malami had also written to President Muhammadu Buhari on issues surrounding the Malabu deal. In a correspondence dated 15th September, referenced 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 above observations to the President, the AGF went further 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:
• The agreement was executed by the highest authority in 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.
• 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.”
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 AGF 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 OPL 245 was first awarded, revoked and re-awarded. Such transactions are not without precedence. Theophilus Danjuma’s Sapetro, which was coincidentally awarded OPL 246 in the same year (1998), by the Gen. Sani Abacha regime under similar conditions of paying a discounted rate of $20 million signature bonus like Dan Etete’s Malabu OPL 245, divested 45 per cent of stake to CNOOC of China and walked away with $1.7 billion in his pocket. By contrast, Malabu’s OPL 245 was sold 100 per cent 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, nobody is being prosecuted for the Sapetro/CNOOC transaction. In essence, the legal advice of AGF Malami, certifies the Malabu deal as 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, Adoke, who was only carrying out 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 that has nothing to do whatsoever with government.
The truth behind the facts that have shrouded the Malabu Oil deal in mystery, which has been made fetish by a vindictive war on corruption have further exposed the lack of due investigative diligence on the part of the EFCC.
By making a fetish out of the Malabu deal, the anti-corruption agencies of government have only succeeded in entertaining the impressionable 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 the accused 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 trial and pronouncement of guilt even before subhects are charged to court.
The unfortunate characterisation of individuals as corrupt even before formal conviction is in itself a form of corruption. This betrays the selectively vindictive nature of the current administration’s war on corruption.