A black American lawyer Mr. Gerry Spence who wrote a beautiful book titled: “Police State: how America’s Cops get away with murder”, made a very interesting point that will guide us as we navigate through the various ramifications of arguments and counter arguments on the controversy around the issue of Malabu oil and Shell Nigeria.
The brilliant defence lawyer had written thus: “when a tragedy of errors gets rolling, its momentum is hard to stop”.
The obvious implication of the above is that if we take a cursory look at the way political power is wielded in Nigeria with specific reference to how those considered as outsiders from the seat of power are treated, you would not be wrong to quote what Barbara Tuchman wrote that: “if power corrupts, weakness in the seat of power, with its constant necessity of deals and bribes and compromising arrangements, corrupts even more.”
The corrupting influences of government in Nigeria are wielded by officials or heads of extra-ministerial or ministerial departments of the federation. In the current dispensation two layers of power influencers have been identified namely- members of the appointed and un-appointed cabinet of President Muhammadu Buhari and certain so-called law enforcement or anti-graft agencies.
Two of such power influencers are the Department of State Services headed by a kinsman of President Muhammadu Buhari Alhaji Lawal Musa Daura and the Economic and Financial Crimes Commission (EFCC) headed by the Adamawa State born Assistant commissioner of Police Alhaji Ibrahim Magu. These two agencies have since the advent of the Buhari’s presidency operated in such a manner that most Nigerians have accused them of being lawlessly tyrannical.
It is obvious to state that the hierarchy of the Economic and Financial Crimes Commission (EFCC) particularly has come under intense scrutiny for waging the war against corruption through some means that are considered deeply partisan, unconstitutional and selective.
Two major planks of these allegations against the high-handed operational mode (modus operandi) of the Ibrahim Magu-led Economic and Financial Crimes Commission (EFCC) are that only members of the immediate past Peoples Democratic Party are targeted for persecution.
It got to a ridiculous stage that critical thinkers believe that all that a politician requires gaining immunity or some form of protection from the Federal System is to cross over from the People’s Democratic Party to the ruling national party of All Progressives Congress which produced President Muhammadu Buhari who picked up Ibrahim Magu as acting Chairman EFCC.
Those who alleged selectivity in the way EFCC goes on with the fight against corruption used the example of why the EFCC has all the while gone after members of the People’s Democratic Party’s 2015 Presidential campaign council and have labeled them in the media as rogues whereas no single member of the All Progressives Congress Presidential campaign council is under EFCC probe even when both campaigns spent humongous quantum of cash and made use of monumental logistics during that year 2015 Presidential poll which ranks as the most expensive campaign in Nigeria’s history. Empirical evidence abound to show how so well-funded both the PDP and APC Presidential campaigns ran. At the last count each of these parties spent at least N2 billion by easy of media campaigns prior to the 2015 Presidential poll.
Also, accusations against key figures within the AOC Presidential campaign council have continued to roll out. For instance the Rivers State government under Governor Nyesom Wike, a senior lawyer had inaugurated a judicial commission to investigate the financial administration of his predecessor who was pivotal to the year 2015 campaign of the All Progressives Congress which railroaded the current helmsman at the center Muhammadu Buhari to become the President in 2015.
The findings of that investigative panel are far -reaching and damaging allegations were circulated in the media but the EFCC conveniently looks the other way as if nothing of such exists.
The current EFCC leadership has become adept at violating the constitutional provisions on fair trials by uploading all the cases it has built against accused persons on the pages of the Nigerian newspapers thereby prejudicing the minds of the people and the court against accused persons.
We will shortly return to the vexed issue of media trial but first let us look at the ongoing public conversations around the issue of the role the immediate past Attorney General and Minister of Justice played in the settlement reached between the parties in the Malabu oil deal.
The EFCC has repeatedly accused the immediate past minister of Justice Mohammed Bello Adoke of misdemeanor regarding that transaction and the media severally had reported that multimillion dollar alleged bribes exchanged hands thereby challenging the ethical standing of the former Justice Minister Mr. Mohammed Bello Adoke (SAN) on this deal.
The Economic and Financial Crimes Commission (EFCC) had also prior to instituting any matter against Mr. Adoke in court of competent jurisdiction, had variously used the media to humiliate the former Justice minister in the eyes of the public and made him look like someone who basically worked to enrich his pockets with proceeds from the settlements of the Malabu oil matter.
But the former minister who is said to be pursuing a post graduate course in a Western European Country has accused the EFCC of working for the interest of the family members of the late military dictator General Sani Abacha.
Some persons in government especially within the EFCC circle had questioned why Mr. Mohammed Adoke has not returned to Nigeria to present his own side of the story.
But whilst not holding intellectual brief for him, I think the EFCC’s style of demonizing Nigerians on their investigative radar is unfortunate. Also some accused person has allegedly died whilst been detained inside the EFCC detention facilities.
A case in point is that of Mr. Desmond Nunugwo who was arrested by EFCC over alleged fraud and was reportedly physically tortured after which this gentleman who had worked as the protocol chief to the minister of state, in the Ministry of Defence died inside the EFCC’s detention center in Abuja leaving behind his distraught wife and his four year old baby boy. Nobody within EFCC has been charged for this extralegal killing even as the remains of the detainee didn’t undergo post mortem forensic examination. There is the feeling in the political power environment that those who work for this administration can do whatever they liked and wouldn’t be prosecuted for crimes against humanity. Before our eyes unarmed demonstrators are mauled down to their untimely deaths by armed security forces but the federal government had publicly provided cover for these heinous crimes against humanity.
The current government has also demonstrated grave disregard to binding orders of court on several matters especially on the matter involving the Director of the Indigenous People of Biafra (IPOB), Mr. Nnamdi Kanu and the immediate past National Security Adviser Colonel Sambo Dasuki (rtd). Sheikh El-Zaczakky had also secured bails from Federal High courts but the Federal Government failed to comply.
It is the thinking of most persons who are not in the good books of the current government that it would be suicidal to present yourself before such hurricane that EFCC has become particularly if such persons being sought after are enemies of the top government officials or of the surrogates.
Mr. Adoke has accused the Sani Abacha’s family of dictating to EFCC how to proceed with the issue of Malabu oil deal gone awry and it is a notorious knowledge that President Buhari is very close to the Abacha Family.
So I think the international community should monitor this case closely to ensure that personal vendetta is not elevated into a major government agenda.
Let the allegation of external control of the EFCC be thoroughly investigated.
There has to be assurances that law enforcement agencies such as EFCC and the Department of State Services (DSS) are not allowed to operate as if they are above the laws of the land and to keep disrespecting the courts of competent jurisdiction which according to Section 6 of the constitution has the ultimate Judicial powers of the Federation.
Specifically, Section 6 of the Constitution says: “(1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation; (2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State; (3) The courts to which this section relates, established by this Constitution for the Federation and for the States, specified in subsection (5) (a) to (1) of this section, shall be the only superior courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each court shall have all the powers of a superior court of record; (4) Nothing in the foregoing provisions of this section shall be construed as precluding:-(a) the National Assembly or any House of Assembly from establishing courts, other than those to which this section relates, with subordinate jurisdiction to that of a High Court; (b) the National Assembly or any House of Assembly, which does not require it, from abolishing any court which it has power to establish or which it has brought into being; (5) This section relates to:-(a) the Supreme Court of Nigeria; (b) the Court of Appeal; (c) the Federal High Court;(d) the High Court of the Federal Capital Territory, Abuja; (e) a High Court of a State (f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja;(g) a Sharia Court of Appeal of a State; (h) the Customary Court of Appeal of the Federal Capital Territory, Abuja; (i) a Customary Court of Appeal of a State;(j) such other courts as may be authorized by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and (k) such other court as may be authorized by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws;(6) The judicial powers vested in accordance with the foregoing provisions of this section – (a) shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law; (b) shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person; (c) shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution; (d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.”
The range of accusations of bias against EFCC as tabled by the former minister of Justice are so weighty that the current Federal Attorney General and Minister of Justice Alhaji Abubakar Malami (SAN) must as a matter of constitutional obligation investigate with an open mind. I’m sure the current minister has a conscience so let him follow his conscience.
He, the current Minister of Justice must bear in mind that government is like “soldier go, soldier come, but barrack remains.”
The Justice Minister who is a member and indeed a kitchen cabinet member of the All Progressives Congress federal government must know that “Power is transient” since “the only thing permanent in life is change.”
Mr. Mohammed Adoke (SAN) may truly have genuine fears for his life because crude oil matter in a third world country like Nigeria is a very dangerous terrain whereby different mafia lords are in constant struggles for control.
A British journalist Mr. Duncan Clarke who spent forty years studying crude oil deals in Africa has also documented facts to demonstrate the life and death issues surrounding crude oil businesses.
Mr. Clarke wrote a big book which he aptly titled: “Crude continent: the struggle for Africa’s oil prize”.
This great writer captured the danger called crude oil businesses in Africa in the following words: “if you find that life has made you president of an oil-rich micro-state and you worry about inheritance, limited options may exist. One might to be hope for initial family succession, then a smooth and continuous dynastic follow-on akin to monarchial acceptance. History in African suggests low probabilities of success for this expectation. Another design might be to create a state edifice that itself corporatizes the oil game, co-opts antagonists, spread wealth and benefits, and lead over time to more social and ethnic inclusiveness. So far both the first phases of each of these stratagems appear to be in play. (Crude Continent: The Struggle for Africa’s Oil Prize by Duncan Clarke) ”
A critical perusal of that book by Mr. Clarke amongst other far reaching research findings on how crude oil deals in Africa threatens lives of competing actors, will therefore remind us that the letter the immediate past Federal Attorney General and Minister of Justice Mr. Mohammed Bello Adoke (SAN) sent to his successor Alhaji Abubakar Malami (SAN) must be forensically attended to so Nigerians are allowed to know the real truth behind this brouhaha over Malabu oil.
Yours faithfully has had the intellectual fortune of possessing since year 2013 the copy of ”comprehensive position paper by Federal Attorney General and Minister of Justice in respect of the settlement of the dispute between Shell Nigeria ultra-Deep limited (SNUD) and Malabu oil and gas limited (Malabu) over the ownership and right to operate OPL 245 which was facilitated by the federal government of Nigeria through the office of the Attorney General of the federation and minister of justice ” dated 23rd July 2013. I have read through it and digested the facts contained therein.
Anyway, Alhaji Mohammed Bello Adoke (SAN), in the letter he just sent to his successor has faulted the decision of the Economic and Financial Crimes Commission (EFCC) to prosecute him and others for resolving the ownership disputes of the Oil Prospecting Licence 245 between the federal government, Shell Nigeria Ultra Deep and Malabu Oil and Gas Limited.
In a letter he wrote to the incumbent AGF and Minister for Justice, Abubakar Malami (SAN), Adoke said three past presidents namely: Olusegun Obasanjo, Umaru Yar’Adua and Goodluck Jonathan, approved the settlement arrangement that culminated in the final settlement of the protracted dispute.
The former minister also expressed regret that the EFCC had allowed itself to be used by the late Sani Abacha’s family to pursue personal interest instead of national interest for which the commission was established.
He wondered why the Abacha’s family had refused to go to court if truly the family’s interest was adversely affected by the settlement agreement.
The former AGF described as spurious and malicious, the charges filed against him and other individuals and companies, demanding that Alhaji Malami who is a confidant of the current President should speak out on the issue since his office has all the facts.
Adoke said: “Recent actions of the EFCC to impugn the settlement which was done in the national interest, particularly their penchant to suppress facts relating to the transaction and the filing of criminal charges against me for conspiracy and aiding the commission of money laundering offence and the latest allegations of bribe taking, have revealed very clearly that either your office and that of the EFCC are not working in harmony or that something sinister is going on.
“Having given you the benefit of the doubt that you would not sponsor deliberate falsehood against me, my suspicion is that there is an orchestrated plot by the EFCC to deliberately impugn a transaction that has been scrutinised and approved by at least three past presidents and three AGFs; drag my name in the mud and paint me with the tar of corruption in order to attract public odium.”
“As the Chief Law Officer of the Federation, you have a public duty to speak on this matter so that Nigerians would know whether I acted mala fide or abused my office in the entire transaction leading to the final implementation of the settlement. Nigerians need to know whether your predecessors in office from 2006 to May 2015 acted in the national interest when they brokered and implemented the settlement”.
Adoke also affirmed thus: “It will also be instructive for Nigerians to know whether your predecessors were carrying out their personal agenda or that their respective actions were carried out with the knowledge and approval of their respective principals.”
The former minister then stated that he believes that it is the current justice minister’s responsibility to explain to the public who are being sold a fiction.
Adoke asked that Nigerians be told that the transaction started from President Obasanjo, under whose administration the Terms of Settlement were brokered with Chief Bayo Ojo (SAN), as the then AGF who executed the Terms of Settlement before the tenure of President Jonathan, who approved the final implementation of the Terms of Settlement and my humble self who executed the resolution agreements.
“This is more so as the settlement and its implementation were situated in the Federal Ministry of Justice” he wrote.
Writing further he stated that: “Honorable Attorney General of the Federation, your response is crucial because it has become glaring that the actions of the EFCC in respect of the transaction are not in the national interest, but rather in furtherance of a plot to serve the interests of some powerful families and individuals who are aggrieved by my refusal to accede to their requests to compel Malabu to pay them certain amount from the proceeds of its divestment in OPL 245, and the subsequent re-allocation of the oil block to Shell/Eni.”
Accusing EFCC of compromise and criminal collusion Mr. Adoke asserted he is surprised that a national institution is being used to further the interest of individuals whose claim or shareholding in Malabu remains shady, and prefer to engage proxies to fight their battles.
“The pertinent questions that must be asked are: Why are these powerful families and individuals reluctant to litigate their dispute in the law courts if they are confident about their legal claims to the Shares of Malabu? Why are they intent on using state actors and institutions for their private benefits? Where were they when Malabu was negotiating with the federal government from 2006 to 2011 when the settlement was finally implemented?
In these crude oil conversations i think Nigerians must know theWHOLE TRUTH AND NOTHING BUT THE TRUTH.
*Emmanuel Onwubiko is Head of HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) and blogs @firstname.lastname@example.org; www.emmanuelonwubiko.com