The war on corruption has been intriguing, but it has been more when the apex corruption fighter creates its own drama of self-indictment. One, it was argued that the quality of prosecution sometimes undermines the integrity and fortitude of its battles. Hence former president, who also set it up, Chief Olusegun Obasanjo, invoked a Yoruba word to demonstrate its weakness. He asked the organisation to employ ‘ogbologbo’ lawyers; that is lawyers of high stature and great acumen.
It appears that nearly 26 years after the award of Oil Prospecting Licence (OPL) 245 to Malabu Oil Ltd, the recent ruling of Justice Abubakar Idris Kutigi of the FCT High Court has put an end to the crises, controversies and legal tussles surrounding it. Justice Kutigi ruled that the Economic and Financial Crimes Commission (EFCC) did not provide evidence to prove its charges of corruption, fraud and conspiracy against the defendants. Similar cases suffered defeats in Italian and British courts where the judges ruled that they could not see any conclusive proof of fraud and corruption in the OPL 245 agreements signed by Nigeria, Malabu, Shell and NAE in 2011. The United States Department of Justice (DoJ), the US Securities and Exchange Commission (SEC) and Dutch authorities all brought the matter to a close after investigating petitions filed by Nigerian, Italian and British anti-corruption campaigners who had alleged corruption and fraud in the deal.
The controversy started in 2001 when the Olusegun Obasanjo Administration revoked the oil block from Malabu without explanation. Malabu immediately instituted legal proceedings against the Federal Government. In 2006, the Obasanjo Administration decided to settle out of court with Malabu by agreeing to restore OPL 245 to them, a decision that also irked Shell, the new allottee, which then filed arbitration claims against Nigeria. The crises appeared to have ended with the settlement agreements signed by all parties in 2011 under then President Goodluck Jonathan. But when former President Muhammadu Buhari came to office in 2015, he decided to revive the corruption allegations.
With the controversies now seemingly over, there are a number of issues that should not be swept under the carpet. One, the Obasanjo Administration plunged Nigeria into a prolonged legal tussle when it revoked the oil block without justification. This sparked off the crises and controversies that stalled the development of the highly endowed oil block. Sadly, the Nigerian government is notorious for taking unilateral actions on contracts. This unsavoury reputation affects the country’s ability to attract serious investments. Investors are always sceptical about the sanctity of contracts and rule of law in Nigeria. It is hoped that government will henceforth take its contractual responsibilities more seriously.
Two, it should be considered worrisome that EFCC’s key witness was Mohammed Abacha, son of General Sani Abacha, Nigeria’s former Head of State. He claimed he owned Malabu Oil and that his name was illegally expunged from the company’s Form C.02 at the Corporate Affairs Commission (CAC) while he was in detention in 2001. As a result, he missed out on the $1.1bn paid to Malabu by Shell and NAE. Although the EFCC charged seven defendants to court, most of the counts bordered on the alleged forgery which would suggest that the EFCC was indeed fighting for the Abacha family. By Decree No. 53 of 1999 (now an Act of Parliament), the Abachas are to forfeit all public assets traced to them. Was the EFCC not aware of this?
Three, on the N300 million allegedly paid to Adoke as a bribe for his role in the settlement agreements, Justice Kutigi noted that the same sum was presented to another court by the EFCC as evidence of a mortgage the former minister collected from a bank. The contradiction was fatal to EFCC’s case. This raises questions about the way the EFCC builds its cases. The commission is regularly accused of being used as a political tool. Failings of this nature do not help its case. Adoke repeatedly said he was being persecuted because he did not help the Abachas get a cut from the Malabu windfall. EFCC’s conduct tends to support his claim.
Four, it should not have taken 23 years to resolve legal tussles around this rich oil block. The Nigerian economy has lost billions of dollars in revenue as a result, plus the thousands of jobs that could have been created and the forex that could have accrued to the country from oil exports, among several other benefits. In the final analysis, the OPL 245 case may have ended, but the issues that the entire saga raised need to be addressed. Lessons have to be learned to improve public policies and litigation.
It is amazing that the president who called for ‘ogbologbo’ lawyers set the stage for the drama that would expose his own shenanigan in office and the EFCC could not get a lawyer worth his salt to prosecute. Rather, the EFCC put up a slipshod job and turned an innocent man and a slew of oil companies into an international rigmarole of fruitless legal jousts.