ABUBAKAR MALAMI; P&ID Saga Exposed Our Age-long Impunity

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Attorney General of the Federation and Minister for Justice, Abubakar Malami (SAN), has said by placing the national interest above any other, the Muhammadu Buhari administration has abolished the practice by unscrupulous Nigerians to collude with foreigners to milk the country. He spoke on Arise News Television. Tobi Soniyi brings you the excerpts:

How much of a victory is the judgment of the UK Commercial Court granting Nigeria’s application for extension of time to apply to set aside the judgment P&ID obtained against Nigeria?
Talking from the perspective of victory, I maintain that it is a victory calling for celebration. But for the purpose of putting the victory into perspectives for proper appreciation by Nigerians, I think you have to look at it from the implication of what could have happened if such victory was not achieved.
First, looking at the volume and size of the arbitrary award, which amounts to $10billion, and then looking at it from the angle of its implication, and the fact that such victory and other victories, which predate that of September 4, were not recorded, it could have amounted to perhaps, an attack on the national assets of the Nigerian State both locally and otherwise.

Looking at it further from the implication of such attachment on our national budget, its volume and size, an amount that could have been enough to address our national budget as it relates to health and education combined together. Looking further, the victory is an implication that could translate into an attachment of commercial assets and maybe inclusive of the national reserve.
The total implication of this is an outright negative effect on our financial standing, locally and internationally. It would certainly affect our economy that is fragile, taking into consideration the prevailing financial situation internationally.

So from these perspectives, you can imagine the implication, taking into consideration the volume which translates into one-third of our national budget, and its effect on our educational and health sectors to the extent that we cannot have anything left to address our educational and health sectors respectively at a time – an implication that will have an unimaginable negative impact on our economy’s financial standing internationally.

Recall in your reaction to the development, you had said heads would roll. When is that starting?
I think heads have started rolling already taking into consideration extensive investigation as to the genesis and circumstance of the procedural and associated compromises along the way. Heads have started rolling against the background that certain elements were charged to court.
Heads have started rolling taking into consideration that certain convictions have been recorded, arising from misgivings associated with the P&ID contractual saga. Indeed, heads will continue to roll taking into consideration that investigations are still ongoing and not in anyway averted.

How solid is the evidential threshold considering these are criminal allegations about persons. How confident are you?
I think the strength of the associated allegation can best be seen from the dual pronouncement. A conviction recorded from the cases that were initiated at its best reserves to the Nigeria component of the criminal cases that were initiated and exceeding pronouncement to the effect that it is indeed apparent that the commercial court in the UK agreed with our presentation that there are reasonable grounds for suspicions, and commission of offences relating to corruption and fraud.

I think the combined effect of the two: the comprehensive investigation that led to the arraignment and charge and conviction in the Nigeria component of the case and the civil component by which we succeeded, in an unprecedented manner, in establishing a case before criminal court, a case that earns us victory as a nation.
A victory in the sense that we were accorded the opportunity for extension of time on the strength and weight of the evidence presented, relating to fraud and corruption. So, the combined effect of this goes to establish a point that are not only reasonable grounds, but strong grounds that have already established a criminal case of corruption, fraud and associated infraction.

Indeed that has been further consolidated by a civil pronouncement of a UK commercial court to the effect that there are reasonable grounds for not only suspicions, but in effect, a case of fraud and corruption could be established.

Let’s touch back on the background and lessons learnt if any. This was a case inherited by the Buhari administration, but we do understand there was a consideration for settlement. Tell us why that was a consideration, when you look at the case? It was not subjected to procedural rigours, requisite organs of government were not signing off in this contract, so why was the government willing to settle initially?
Well, within the context of the possibilities that were considered for settlement, as you rightly know, government operates in continuity. Settlement aspect was something that was inherited by the government of Buhari. The time we came on board, we found an existing position. Government had indeed offered to P&ID an amount within the region of over $800 million, which was turned down by P&ID, which was claiming around N6 billion through arbitral proceedings.

Notwithstanding the continuity principles on the basis of which the government is expected to operate, we found that elements of the offer as being excessive, unreasonable and baseless against the background of limited appreciation of the prevailing fact and circumstance. Even, if we are indeed submitting to the principles of continuity of government, there is need perhaps as well to unravel the existing undertones, which left in our minds much to be desired, within the context of our transparency and accountability and this is how in the end, our mission to save the country of perhaps advancing the sum of $800 million that was rejected by P&ID.

We felt it could have an extra-ordinary negative effect on our economy, putting into consideration the prima facie of possible compromises. There was need for us to have a second look on the entire process. Unfortunately, looking through the entire processes, it came to light that there were a lot of misgivings, a lot of compromises, a lot of apparent collusions, criminal conspiracies that could be inputted arising from the conduct of the principal characters involved therein.
I think our conclusion was not out of place, taking into consideration the procedural and process breaches associated with the conduct of the parties. For instance, a ministry that is saddled with the development of policy, now coming in to sign a contract and committing the federal government to an agreement that runs into billions of dollars in volume without allowing the necessary procedural steps to be taken.

P&ID offered to put in place gas plants in Calabar for the purpose of receiving gas from Exxon Mobil and Addax, processing line gas for the purpose of energising the power project in the country.
So, that’s logical and by implication places you on the assumption that the starting point for P&ID is to acquire a land on which the project is expected to be constructed, so the question is whether there was such land and if it was acquired by P&ID, my answer is that there wasn’t any land.

There was no evidence of land acquisition on the basis of which the facility sought would have been placed. Now, if it was a project that was to be executed or perhaps or the parties had a clean mind to establish, it is equally logical that those agencies of government that are responsible for the grant of associated permits, for instance, talking about department of petroleum resources, there ought to have been presented before the department, a feasibility study, geological survey, and associated seismic data establishing the possibility of having that facility on the ground.

It may interest you to know that no such feasibilities were presented before the DPR. There were no approvals and permits associated with the generated geological survey that were presented, considered and approved, and permits granted. Then, as one you are talking of a third party company that was expected to provide line gas.

In this circumstance, you are talking of Addax and Exxon Mobil. So, by implication, the contract required the accommodation of Exxon Mobil and Addax as being parties to a contractual agreement, which requires having a tripartite agreement involving the federal Ministry of Petroleum Resources, Addax and Exxon Mobil on the other hand and indeed P &ID.

The point of interest here is that this contract was executed between P&ID and Ministry of Petroleum Resources, the third party that was expected to provide the gas taking into consideration that Ministry of Petroleum Resources did not have one, was never factored into consideration, either by way of sideline negotiation or much less of being a party to the contract.

So, in essence, you cannot have gas right from the outset, those contractual agreements that would see to the provision of the gas by Addax and Exxon Mobil were not taken into consideration, so if you’re now signing a contract in respective of an item, subject or commodity that you don’t have, how then can you provide what you don’t have?

The Federal Ministry of Petroleum doesn’t have the gas, it is Addax and Exxon Mobil that should naturally have the gas and be the ones to supply. Yet the Ministry of Petroleum Resources has negotiated, consummated and concluded an agreement for the provision of gas by a third party and the third party was never factored into consideration.

The third party never factored into negotiation, and made a party to the contract and then you expect the execution of that contract. The agreement is such an agreement that should be vetted by the office of the Attorney General of the Federation. The office is saddled with the responsibility of professionalism, skills and expertise to look into this agreement.

What are the steps taken thus far? Shasore issued a statement saying he treated the case as it ought to be treated. What lessons do we have to learn since we have people that were in that case prior to that time? Apart from P&ID, there are other cases that are on ground as regards arbitration. You talked about one that is also brewing – the Eurafric Power Limited/Sapele deal, will Nigeria keep going for arbitration, knowing that these things are not cheap?
The greatest lesson we have to learn from the P&ID saga is that we need to understand clearly that a culture of impunity and compromises, breaches in process and procedure has long been established and been rooted in Nigeria governance structure before the coming onboard of this government under the leadership of President Buhari.

Another lesson that needs to be learnt is the fact that under the leadership of President Muhammadu Buhari, a new culture has already evolved and the greatest lesson arising from that culture is that there is no room for impunity, compromises and breaches in processes and procedure.
But the major lesson I think needs to be learnt from the culture of impunity that has prevailed before coming of the government of President Muhammadu Buhari, was the fact that collaboration necessary and required for governance was in most cases deliberately sidestepped out of desire to achieve compromises. It was prevalent in the system.

For instance, the Ministry of Petroleum is involved in a contract it doesn’t have the required skill to handle that will ensure that the interest of the government is adequately protected. Then the ministry is signing an agreement without allowing the necessary collaboration to prevail in their conduct and execution of the agreement. It is a clear lesson of impunity.

It is a clear lesson of compromise that is intended to shortchange the nation and in essence not allow other components of government to do the needful in terms of providing the necessary support to ensure that the interest of the government is adequately protected. In essence, the greater lesson is the fact that there was impunity, and that the era of impunity has substantially been displaced by the administration of President Buhari. A system that allows the little resources of the nation to be compromised, taken away for the purpose of addressing a sham contract that was rooted in corruption, compromises and procedures is no longer the case.

The further lesson is that government has resolved to ensure that at the end of the day, there are consequences for wrongdoing and that, in effect, is what translated to the extensive investigation of the undertone and compromises, criminal conspiracies undertone and corruption and fraud that sailed into the whole P&ID saga, and ensure that in the end, people are charged and prosecuted.

The lesson for us to understand that there were a lot of such other contracts that have been tried by previous administration that was no way intended to be executed from the outset and today, that culture of impunity has been effectively checkmated by the administration of President Buhari by ensuring that first, the interest of the country as it relates to the commercial and economic aspect of it, is adequately protected.

Secondly, the public interest will reign supreme as against the greedy interest of the few and the government is set to do what it needs to do to ensure the public interest and that there are consequences for wrongdoing.

Is there still the possibility of an out of court settlement with the P&ID, because some people talk about the proposal of the Nigeria government to settle out of court? Is that possibility still on the table? We have been talking about other cases, which you alluded to and I’m sure many people listening to you will like to know what the update is with regards to other cases of arbitration involving contracts and disagreements, the global steel holding (Ajaokuta steel Company); where are we with the Mambilla hydro project involving Sunrise, there were issues regarding settlement out of court – where are we with those two cases?

Generally speaking, when it comes to judicial or arbitration proceedings, one cannot rule out wholeheartedly, and with clear finality conclude that there should not be the possibility of settlement. Settlement is an attribute of judicial and arbitral proceedings, so you cannot rule out the possibility.

But then, where fraud, corruption, material misrepresentation, compromises on processes and procedures are the issue, I wonder at what point you can submit to the settlement arrangement taking into consideration what responsibility we have as a nation of sustaining, upholding the public interest.

As such, I cannot rule out the possibility of settlement/out of court being a natural attribute of judicial proceeding, but the fact remains that where fraud, corruption, criminality, conspiracies and material misrepresentation are concerned, it is indeed a tall order.

Regarding the other two cases, my answer is general, we have not indeed closed the door as it will allow the possibilities of settlement. For instance, in respect to these two you’re talking about, there have been some levels of engagement that are intensive and ongoing out of the desire of the Nigeria state to promote its public interest.

The public interest relating to Ajaokuta is the interest of having some levels of self-sufficiency in steel production. The interest relating to the smelter company as well has some level of public interest. Within the context of the public interest, juxtaposing with some other considerations, you have to weigh your gains and form an opinion as to which option is the best. Is the option of perhaps, settlement or if indeed the public interest supports the settlement arrangement, then you go for it.

So, in essence, the Nigeria government with particular reference to the Ajaokuta Steel and smelter company has proposed the possibility of settlement and inclusion of Mambila. The settlement considerations are indeed on the table, but the fact remains that as a government, it is the public and indeed national interest that is at the heart of negotiations and settlement.
There is nothing that can make us compromise the public and national interest. So, our major consideration is not the settlement in its own right, but upholding the public and national interest and nothing will make us shift from that policy that is indeed established – a policy that upholds the administration of President Buhari.

A lot has been said about those who played critical roles in the success achieved. However, we like to move attention to what has been playing out with the Economic and Financial Crimes Commission (EFCC). A lot has been said about yourself and your office, and the roles you are playing in that. What are your general thoughts before we move on to the specifics? What do you have to say to critics that you are scheming for more powers to control the EFCC, for instance, the allegation made by the former Acting Chairman of the EFCC, Ibrahim Magu, that you as well should be investigated?

Well, I think the function of investigation is a function of factual situations with facts on the ground. I think that none in the system is above investigation provided that you don’t enjoy constitutional immunity. But the fact remains that the P&ID matter is indeed a collective responsibility.
The successes associated with it is a function of collaboration among the agencies of government and then within the context of collaboration those misgivings that are identified, if there are individuals or perhaps institutions that are found wanting, the government will do the needful in line with investigation and prosecution and from the point of taking the necessary steps arising from the lessons learnt.

So, if the office of the Attorney General or personality of the Attorney General, Abubakar Malami, is called to question, it is only natural to investigate and I think that neither the office of the Attorney General nor Abubakar Malami enjoys immunity, and if by any stretch of imagination along the line, certain breaches and compromises both in terms of processes and procedures, have now perhaps manifested, arising from the conduct of Abubakar Malami or the Office of the Attorney General as it relates to arbitral proceedings, it is only natural that there should be an investigation.

Neither the office of the Attorney General nor Abubakar Malami claims exclusivity as far as investigation is concerned. So, if there are reasonable grounds, if there are serious grounds for suspicion of an offence, compromises, criminal conspiracy, associated with P&ID, I think it is only natural against the background of the provision of the government of President Buhari to ensure that at the end of the day, no stone is left unturned as far compromises that injure the national interest are concerned. I think it is not out of place to consider the investigation if there are reasonable grounds for so doing.

There have been calls that you should testify before the Justice Ayo Salami panel. Is it something you will go for when you are called upon? Second, what is your view on the state of rule of law in Nigeria?

Within the context of the rule of law as you clearly stated, as the chief law officer, Attorney General of the federation and Minister of Justice, it is my duty to assist whatever investigation that is ongoing locally and internationally. I have signed and executed eight witness statements before the commercial court in the UK, which witness statements translated into the victory we are seeing today.

So, the idea of testimony, interference of the Office of the Attorney General of the Federation and with particular reference to Abubakar Malami before any panel or tribunal local and international, for the purpose of supporting an investigation that will now see to the establishment and unraveling of the truth that is associated with an issue under consideration is not new and I will in no way exercise any restraint as to honouring an invitation for the purpose of supporting, any inquiry or investigation.

If indeed the Ayo Salami panel invites Abubakar Malami as an individual or the Office of the Attorney-General of the federation, for any testimony, clarification, examination or cross examination for that matter, Abubakar Malami will gladly, with the spirit and context of the rule of law, be there to testify, be cross-examined, and examined.

Our position as a government is to be submissive to the rule of law and the component of it requires that when we are called often to clarify issues, to be examined and cross-examined, Abubakar Malami will wholeheartedly be there and cooperate with the inquiry institution, and that, indeed, was an attribute of this government that translated into the victory we are seeing today arising from P& ID.

Abubakar Malami has along the line, and within the chain of the arbitral process submitted to uncountable invitations, responded to uncountable requests for clarification of issues and indeed executed uncountable witness statements for the purpose of putting the record straight. The case before Justice Salami will certainly not be an exception. If Abubakar Malami is invited in person or Abubakar Malami as the Attorney General is invited, Abubakar Malami will gladly be there to support the existing inquiry.

Let’s rephrase the question on the rule of law. You are the chief law officer of the federation and as the only minister of the federation that is expressly mentioned in the constitution of Nigeria, many people will like to know, what does the rule of law mean to you, because one of the criticisms is that under your watch, Nigeria has not been respecting court orders? It was also under your watch that we had the controversy about national interest being more important than the rule of law, the interpretation of which is quite varied. My question is, what does the rule of law mean to you as the Chief Law Officer of the federation and will you say that under your watch, you have done enough to defend the rule of law? The other part about the suspended chairman of the EFCC’s counsel, Wahab Shittu, says that rather than your allegations on corruption, and insubordination, that the victory in the P&ID case is a confirmation that Ibrahim Magu did very well and he was the one in the driver’s seat to bring Nigeria to this point. What is your response to that?

Let me start by addressing the first question, which is, what the rule of law means to me. I want to give a general response to it regarding what constitutes the rule of law. A rule of law is operated within the context of the law, taking into consideration the prevailing rights within the law and enforcing them. Taking into consideration the prevailing rights available to individuals and personalities as enshrined in the constitution over legislation.

So, in essence, a rule of law is about compliance. A rule of law is about upholding the tenets of constitutional requirements, the constitutionally established rights, upholding them and ensuring that they prevail. For you to put the rule of law into proper context, you need to understand what the rule of law means and how it operates, then you will have to situate it, access it, and x-ray it within the context of the constitution and prevailing legislations.

So, now, what are the constitutional provisions, what are the legislative provisions, as far as compliance with court orders and judgments are concerned. First, if you are talking of a judgment of a court of law, a judgment is passed against the interest of the government, and what are the remedies available to the government. For instance, in a simple case of bail application, someone is charged with treason before a court of law, he files an application for bail, and the court of law granted an application for bail.

So what is the rule of law element associated with application, both on the part of the government and the accused? On the part of the accused, the rule of law component is that the accused has been granted bail and he is entitled to bail.
On the part of the government, the rule of law component is that if the government is aggrieved and not happy with order granted, it may want to consider the possibility of appealing the order, to consider the possibility of filing an application to set aside the bail that has been granted, if it is indeed within the context of law. There are grounds that justify the application for setting aside the order. Thirdly, to consider the possibility of staying the execution of the order, if indeed an appeal has been launched by the government.

So, within the context of the rule of law, if the government decides to appeal and file an application for stay of execution, if the government decides to file an application for setting aside, both the government and the accuser are operating within the context of the rule of law, and the way the judicial processes and system operate, is not for the government to follow it hook, line and sinker, and unconditionally comply with the court order, where it has a legislative power to appeal and file an application for stay of execution.

So, when the government decides not to release the accused, on the grounds that it has filed an application for stay of execution, and the application for stay of execution is being considered and determined by court, you are still operating within the context of the rule of law, because the rule of law gives an opportunity for the accuser to apply for bail. It is the same rule of law that gives the government the opportunity to challenge the order by way of an appeal, stay of execution or by section aside.

So, it is the act of submission to court and not resulting to self-help that constitutes the rule of law and the components in general situation. The rule of law is not a one-way traffic arrangement. While you have to consider the interest of the accused in criminal cases and the interest of the government, what are the interests that are provided? Are the two operating within the context and spirit of law or they are resulting to self-help? Provided you don’t result to self-help and if you applied for an exercise of the right of privilege, you’re indeed operating within the context of the rule of law.

It is never a one-way traffic affair, whereby you look at it from the perspective of complying with an order or judgment hook, line and sinker without factoring the associated counter rights and privileges available at the expense of the other. So, that is the rule of law and that is the constitutional context of it.
I think the proper perspectives if you want to look at the victory arriving from the P&ID, are the perspective of institutions. I wonder how one personality can claim a victory associated with an institution, the office of the Attorney General, perhaps, developed about six witness statements in support of a case that led to the victory.

Abubakar Malami can never in law and logic claim or personalise the victory simply, because he has deposed to multiple statements that led to it. If for example, the Nigeria Police Force, played a part as well, and the Inspector General of Police (IGP), in his personality as individual, has not come out to claim exclusive victory over it, even though the office of the IGP played a key role.
Again, the Minister for Information and Culture, Hon. Lai Mohammed played an extraordinary role in perhaps putting across the Nigeria case in local and international public space. Hon. Lai Mohammed has not claimed exclusivity of the victory. The Minister of Foreign Affairs as well provided the secretariat services, coordinated the necessary processes, in the UK that supported us and assisted us in putting our case across comprehensively and effectively.
The Minister of foreign affairs, Geoffrey Onyeoma, is not claiming exclusive victory. So, I wonder where a personalised claim to victory can fit into the circumstances of a collaborative support and approach. The Ministry of Finance was equally there and the Governor of the Central Bank of Nigeria (CBN) played a key role out of a burning desire to ensure that foreign reserves and commercial assets locally and internationally were not touched.
The CBN Governor, Emefiele is not claiming exclusive victory arising from P&ID. So, I wonder where an individual’s personal interest can fit into the process that was institutional and inter-governmental and a result of which was a collaborative effort. My answer is clear – that there is no room for institutional or personalised claim, but then the room that exists is the institutionalised room for collaboration. The victory was indeed a collaborative and not individual effort.

What is the future of the EFCC, because all of the past chairmen of the agency have had to leave unceremoniously, and that is what is playing out at the moment? What will be the right reforms for the EFCC in your own opinion? Also, just recently, the ministerial retreat was concluded and the President charged cabinet members including yours sincerely, to be alive to responsibilities and this is around the issue of the rule of law in Nigeria and the international picture it paints of the country. Is it going to be business as usual, because you have tried to describe the rule of law and what it means to you? But other people feel otherwise that the country is not being put in good light under this administration, when it comes to rule of law, will it be business as usual or should we expect reforms?

Our understanding of the rule of law as I have stated earlier, is a function of the constitution and function of the law, and not taking into consideration what remedies, redress and options are available for you in law provided your actions are rooted in law, and they are never arbitrary.

I think the clear position is that you are operating within the context of the rule of law, more so, when a public interest and individual are in issue, the responsibility and office of the Attorney General is to ensure the public interest.
So, I think that makes the record clear as far the function of rule of law is concerned and we shall continue as a government to operate within the context of taking advantage of what options and remedies that are available to us as a government within the context of the constitution and existing legislations and I think the rule of law, is about law and if the law provides that you have certain options, and you take advantage of those options, you can never be charged for operating arbitrarily.

I think the function of the rule of law is the function of the law. Is there a law in existence that supports what you are doing? If the answer is yes, certainly, you’re operating within the context of the rule of law. The issue is when you decide to go over the prevailing legislative options, redresses, and remedies available to you, if your remedies are rooted in law, and you’re pursuing a remedy within the context of the law and you’re operating within the context of the rule of law, and not otherwise.

Institutions, generally, are functions of law. EFCC was established by law and within the context of the law, EFCC is supposed to operate. So with that in mind I think, there is no room for the Attorney General to unilaterally and exclusively without recourse to the legislation and amendment to the prevailing rule of law to take a decisive position. It is a function of law and legislation.

The office of the Attorney General does not have the function of lawmaking. Lawmaking is indeed an act and exclusive preserve of the National Assembly. I’m not in a position to state outright or perhaps answer yes or no, taking into consideration that the function of amendment, and reforms associated with the EFCC are indeed functions of law and with that in mind, I feel strongly that you pass that question to the National Assembly for answers.
The office of the Attorney General and Abubakar Malami don’t have a ready-made answer for it, because whatever answer I put across will be preempting the functions of the National Assembly.