NIGERIA AND THE ENEMY WITH THE SEAL

The verdict on the Mambilla dispute has once again shown the extent public officials undermine their country, writes JOSHUA J. OMOJUWA

What chance does a country have when its Attorney General is dancing with those who would undermine its interests at the highest level?

That is not a rhetorical flourish. It is the question left standing after a three-member tribunal of the International Chamber of Commerce delivered a 616-page final award in Paris on 16 September, and Nigeria won a case that never should have been.

Sunrise Power and Transmission Company Limited commenced arbitration against Nigeria on 10 October 2017, claiming roughly 2.35 billion dollars over a 2003 agreement for the Mambilla hydroelectric project in Taraba State. The tribunal, chaired by Melaine van Leeuwen with Stavros Brekoulakis and Simon Nesbitt as co-arbitrators, dismissed the claims entirely. It rejected Sunrise’s demand for 400 million dollars, being a 200 million dollar settlement sum and a 200 million dollar default sum. It assessed Nigeria’s legal costs at 11,819,506 dollars and ordered Sunrise and its promoter Leno Adesanya to reimburse 9,319,506 dollars of that, with interest at ten per cent compounded annually until paid.

The tribunal found that the 2020 settlement agreement and its addendum were products of corruption and therefore unenforceable. It found that Abubakar Malami, then Attorney General of the Federation and Minister of Justice, and Adesanya had reached a corrupt arrangement, though it could not establish the precise sum allegedly promised. It found that Malami acted against Nigeria’s interest.

Adesanya’s own evidence was that Malami and the then Minister of Power, Sale Mamman, demanded half of the settlement as a bribe.

Malami rejects all of it. Through his media aide Mohammed Bello Doka, he has made a set of points that deserve to be stated properly. The proceedings were a commercial arbitration, not a criminal prosecution, and the award is not a conviction. He was not a party to them and was given no opportunity to state his own case. The 200 million dollars was never paid. No evidence was placed before the tribunal showing that he received money or any benefit from Sunrise or Adesanya. Adesanya claimed to hold audio and video recordings of the alleged solicitation and never produced them. Buhari declined to approve the settlement on 20 April 2020. And the negotiation itself, he says, was an attempt to close a dispute that had become an obstacle to China Exim Bank financing, with Sunrise opening at 500 million dollars and Nigeria countering at 100 million.

Some of that is fair. A man found against in proceedings he was not party to has a real complaint, and anyone who cares about due process should say so. That’s where it ends for him.

It still does not answer the question.

Even on Malami’s own telling, here is what the Federal Government of Nigeria was doing simultaneously in 2020. Its Attorney General was negotiating a nine-figure payment to Sunrise. Its own case, ultimately vindicated in Paris, was that no valid contract ever existed, and two former presidents, credit to them, would testify to that. Olusegun Obasanjo and Muhammadu Buhari both told the tribunal that the 2003 award was invalid, and that the letter relied upon was issued about twenty four hours after the Federal Executive Council had rejected the contract. Meanwhile the EFCC was prosecuting Olu Agunloye, the minister who signed that letter, and had at various points sought to have Adesanya himself arrested.

So one arm of the Nigerian state was trying to jail the people behind the claim while another arm, headed by the country’s chief law officer, was preparing to pay them. Even absent a single naira changing hands, that is not statecraft. Whatever was being cooked was never going to serve Nigeria’s interest.

The counterfactual is what should keep us awake. Had that settlement been approved and paid, Nigeria would have transferred 200 million dollars in respect of a claim that a tribunal has now valued at nothing, and would today be owed a refund by nobody. The margin between that outcome and this one was a presidential refusal, not an institution. As with most issues of this nature.

That is the real indictment, and it is structural rather than personal. Nigeria’s entire defence against billion-dollar claims runs through one political appointee who serves at the pleasure of a president, holds the roles of chief law officer and cabinet minister at once, and can open settlement talks without ratification by anybody. We built a single point of failure and then acted surprised when it failed.

We have been here before, and recently. In the P&ID matter, an award that reached 11 billion dollars was set aside by the English Commercial Court in 2023 after Justice Robin Knowles found the underlying contract had been procured by bribery, and that Nigeria’s own lawyer had received payments. We escaped by the width of a judge’s willingness to look. In Paris, we escaped again.

Two escapes are not a system. We got lucky, twice.

Credit where it belongs. Nigeria was represented by a team led by Elizabeth Oger-Gross and Tolu Obamuroh, now of Paul Hastings LLP, who took a case contaminated by Nigeria’s own paper trail and turned it into a costs award against the claimants. They defended this country partly against documents signed by this country’s former chief law officer. Read this statement again and consider what it says about the brief they were handed.

What should follow is three changes. Not another committee. Every settlement of a claim against the Federation above a stated threshold should require Federal Executive Council ratification and publication. The Attorney General should be unable to initiate settlement negotiations in a matter where any Nigerian official is under investigation on the same facts. And the defence of international claims should sit with a professional unit with tenure, not with whoever holds a political office this year.

Otherwise another Attorney General inherits the same seal, the same discretion and the same absence of anyone in the room to say no.

We keep describing this country as a victim of foreign claimants. Paris suggests something less comfortable. The claimants only ever had a case because the enemy within had the agency to sell us out.

 Omojuwa is chief strategist, Alpha Reach/BGX Publishing