BY PREMIUM TIMES: FEB 08, 2016
On Thursday, January 28, Ibrahim Magu, the acting chairman of Nigeria’s anti-corruption agency, the Economic and Financial Crimes Commission (EFCC), received a letter.
The two-paragraph letter from the office of the Attorney General of the Federation and Minister of Justice made only one request from the anti-graft chief. Signed by Muhammad Diri, the Director of Public Prosecutions of the Federation, the letter asked Mr. Magu to forward “the case diary in respect of an investigation into” the OPL 245 Malabu scandal.
The letter, which should normally be a routine one, caused a dilemma to the EFCC chief. It put him directly in the middle of a conflict, a senior government official called “cold war” between the Attorney General Abubakar Malami, and Vice President Yemi Osinbajo.
The crux of the disagreement between the vice president and the attorney general concerns what decision the administration should take as it tries to resolve the fraud and controversy surrounding the allocation of immensely rich OPL 245 to Malabu and its subsequent assignment to oil majors, Shell and Eni.
PREMIUM TIMES had exclusively reported the recommendations made by the justice ministry to the presidency regarding the resolution of a long-drawn scandal which has given Nigeria a bad name, and is being investigated by authorities in Italy, UK, Nigeria, and the U.S.
One of the recommendations which has since been accepted by the Attorney General was for the nullification of the tripartite agreements that ceded the oil bloc to Shell and Eni. The committee described the agreements as “null and void”, saying it “should not be given any legal effect by the FGN (Federal Government of Nigeria) as doing so would amount to the FGN condoning and perpetuating illegality.”
The two oil firms had in 2011 agreed to pay to Malabu, through the Nigerian government, the sum of $1.3 billion dollars for the bloc. While the oil firms claimed at different times that they paid the money into the Nigerian government account not knowing who the final recipient would be, the former attorney general, Mohammed Adoke, who co-signed the agreements on behalf of the federal government, said the government only served as a mediator between two willing parties.
Over $800 million of the money has since been paid into accounts controlled by ex- petroleum minister, Dan Etete, with most of it believed to have been distributed through phoney companies to top Nigerian government officials, including Mr. Adoke.
Apart from calling for the cancellation of the agreements and the retrieval of the bloc, estimated to contain about nine billion barrels of crude, the justice ministry also called for the prosecution of both Nigerian and foreign officials involved in the scam.
It also recommended that Shell and Eni be fined at least $6.5 billion (five times the $1.3 billion Shell and Eni originally paid in 2011 the block) for their roles. This, it stated, should be done “in accordance with the relevant provisions of our laws in conformity with international best practices via the appropriate courts (at) home or abroad as the case may be.”
Although Mr. Malami is yet to formally advice the presidency on these recommendations, multiple sources close to the Vice President said he was already aware of them and agrees with all but one.
One of the major recommendations of the justice ministry was that the oil bloc return to Malabu.
“Properly speaking, in the eyes of the law, OPL 245 still belongs to Malabu and was never fully transferred to Shell/Agip/Eni,” the ministry’s committee that reviewed the case said in its report.
A lawyer who was involved in drafting the ministry’s recommendations told PREMIUM TIMES that that conclusion was based on some considerations: Malabu was the only one legally allocated the oil bloc by Nigerian government; Mr. Etete who represented Malabu during the 2011 agreement was not a shareholder of the company and had no legal right to do so, an information to which all the other parties including Shell, Eni, and the Nigerian government were privy of; and past presidents, including Olusegun Obasanjo and Goodluck Jonathan, had all agreed Malabu was the owner of the bloc.
“In fact, after a thorough independent investigation, the House of Reps concluded that the oil bloc revert to Malabu, and wrote the federal government on that,” the source, who asked not to be named as he was not authorised to speak on the matter, said.
However, that recommendation has been rejected by both the Vice President and the Presidential Advisory Committee on corruption, headed by eminent law professor, Itse Sagay.
“That recommendation cannot stand,” a source close to the Vice President said. “Malabu itself was registered falsely and it deceived the government into getting the bloc. The bloc should return to the government.”
PREMIUM TIMES had reported how Mr. Etete, as petroleum minister, awarded the oil bloc to Malabu in 1998. He also created a fictional character, Kwekwu Amafegha, to own 30 per cent shares of Malabu; the other owners being Mohammed Abacha, son of late dictator Sani Abacha, and Hassan Adamu, a former Nigerian Ambassador to the U.S. Mr. Etete created the fictional director because he did not want to be seen awarding an oil bloc to himself.
In explaining the Vice President’s stance on the OPL 245 saga, an official close to him, who asked not to be named because of the sensitive nature of the matter, said it was Mr. Sagay’s committee that was directly assigned by President Muhammadu Buhari to look into the case and report to the presidency on the matter.
He described the vice president office’s involvement as “informal”.
However, PREMIUM TIMES learnt that while the Malabu issue signposts the conflict between the VP’s office and the justice ministry, there is indeed a deeper turf fight between the two entities.
Sources at both the Justice Ministry and the VP’s office told this newspaper that part of the recommendations of the presidential committee was that a special prosecution team made up of private credible lawyers be set up.
The team would report directly to the vice president, who himself is a professor of law and former Attorney General of Lagos State. The team, if approved by Mr. Buhari, would prosecute major corruption cases like Malabu, and review pending ones like the Halliburton and Siemens corruption cases.
“What is then the function of the Justice Ministry and all the government lawyers being paid by the government,” an official of the ministry close to the Attorney General said. “If the government thinks they are not competent, why continue to pay them.”
Mr. Malami would not comment on the friction between his office and that of the VP. He did not answer or return calls. Neither did he respond to a text message sent to him. He was also not present in his office when PREMIUM TIMES visited his ministry.
While the “cold war” persists, the EFCC chairman, Mr. Magu, is yet to provide the case file requested by the Attorney General.
His dilemma, insiders at the anti-graft agency say, is complicated by the fact that about a week before the AGF’s letter, he received a similar one from the Vice President’s office to which he already replied.
The EFCC spokesperson, Wilson Uwujaren, denied knowledge of any of the letters and would not comment on the status of the investigation into OPL 245.
Mr. Diri, however, confirmed that the EFCC chief was yet to respond to the letter from his ministry.
And until Mr. Malami gets the case file, he as Attorney General and Justice Minister cannot write President Buhari on his recommendations on how to resolve the OPL 245 fraud.