ABUBAKAR MALAMI AND THE INFAMY OF MAMBILLA HYDROPOWER ARBITRATION

By Chidi Anselm Odinkalu

When he announced the military coup in Nigeria on 15 January 1966, Chukwuma Kaduna Nzeogwu denounced a confederacy of “political profiteers, the swindlers, the men in high and low places that seek bribes and demand 10 percent.” At the time, Nigeria was mostly funded by agriculture and solid minerals.

Seven years later, that changed. Following the onset of the Arab-Israeli War in October 1973, the Organisation of Petroleum Exporting Countries (OPEC) weaponized the price of oil. In the year that followed, oil prices rose over ten times. For oil producing countries, it was a windfall.

Nigeria was one of the beneficiaries of what became known as the “oil boom”. In the words of then military ruler, Yakubu Gowon, our problem was no longer money but how to spend it.Nigeria’s rulers lost their marbles.

Inebriated with new-found liquidity, the country became – to borrow the memorable title of a book on these events – the destination “where vultures feast”. Ten percent was no longer enough. Since then, high office became an opportunity to bleed the country rather than serve its best interests.

Proof of concept on this pattern occurred in a case decided by the Court of Appeal in England in January 1977. As the country grew exponentially richer by 1974, it embarked on an ambitious institutional and infrastructure upgrade. For this purpose, it needed lots of cement. The capacity of the main port in Lagos at the time was less than two million metric tonnes per year.

By mid-1975, the port in Lagos was overwhelmed with over 20 million tonnes of cement, more than 10 times the capacity. The description by the Court of Appeal in London was graphic: “All the berths were occupied. There were 300 to 400 ships outside waiting. More ships were arriving daily. Most of them were carrying cement. All of those waiting were on demurrage.” The court was convinced that “there must have been some mismanagement somewhere to lead to this pile-up of vessels off Lagos.”

Rather than find those responsible and sanction them, the military regime repudiated the underlying financing contracts. What ensued was a stampede of litigation against Nigeria in foreign courts all over the world.

The country unsuccessfully sought to avoid liability by claiming sovereign immunity, a legal doctrine that government could not be sued in a foreign jurisdiction for its acts as sovereign. The debts and damages piled up. The country has been bleeding since then even as some of its senior-most officials smiled to the banks.

Back home in Nigeria, this case established a profitable business model of official insider-dealing under cover of legal process. The latest of these gambits recently came to a conclusion in far-away Paris in a commercial arbitration over the interminable saga of the Mambilla Hydropower Project.

Columnists, Simon Kolawole and Olusegun Adeniyi separately described the case as a “scam” but that is an injustice to scams. The final text of the arbitration decision (award) runs into 619 pages of grisly reading. What follows is very abridged, drawn from its text.

The interminable saga of the Mambilla Hydropower project has lasted 55 years of neverland. When the military regime initially conceived it in 1972, it was ambitious, designed to deliver nearly 4,000 megawatts of energy. One decade later, the concept took baby steps towards realization. Shehu Shagari was the president. By the time it transitioned to feasibility three years later, Muhammadu Buhari had overthrown Shagari in another military coup.

In 1999, Olusegun Obasanjo returned to the presidencyto find that the matter of the Mambilla Hydropower project had not made much headway in the 20 years since he was last there. At the last cabinet meeting of his first presidential term on 21 May 2003, energy minister, Olu Agunloye submitted a memorandum seeking consent to contract Sunrise Power and Transmission Company Limited (SPTCL) to deliver Mambilla Hydropower. The president thought the memorandum inadequate and asked for it to be withdrawn. The following day, however, in total disregard of the cabinet decision, the same Minister wrote to award the contract to SPTCL.

SPTCL was incorporated only two years earlier in 2001. Its share capital was a mere one million. The arbitration tribunal in France found that it had a “complete lack of hydroelectric expertise and experience.”

The promoter of the company was former playboy, Leno Adesanya, described by former Attorney-General, Abubakar Malami, a Senior Advocate of Nigeria (SAN), in a note to then Chief of Staff to the president, Abba Kyari in 2018 as “a criminal of the highest order conspiring with previous administrations to be filing frivolous arbitration claims and be siphoning money from governments for sharing.” The arbitration tribunal in France called him “a repeat player” with a lucrative habit of “frivolous legal proceedings against Nigeria.”

Two years later, Malami had joined in a conspiracy with the same man against Nigeria.

The unauthorized contract award by Dr. Agunloye in 2003 was the origin of a spurious claim of liability against Nigeria by SPTCL and Mr. Adesanya that seemed to have no end. The reach of his corrupt claws within successive administrations was breathtaking.

Mr. Adesanya had many senior officials of government on retainer, includingprincipals in the presidency and the office of the National Security Adviser, and their family members. Permanent Secretaries ate out of his hands, and hebehaved with the insouciance of a sole proprietor of the Attorney-General’s Chambers in Abuja.

By January 2020, Mr. Adesanya had bribed his way to a purported settlement of his claim against Nigeria. Abubakar Malami and his counterpart in cabinet in charge of energy, Saleh Mamman, initialled an agreement with him to settle his claims for $200 million. Two months later, this was scaled up to $400 million with interest to compound at a daily rate of 10%. President Muhammadu Buhari refused to pay the bill presented by his son-in-law, Abubakar Malami.

In 2021, Mr. Adesanya took the matter to arbitration at the International Chamber of Commerce in Paris. Why a dispute over a purported contract between a Nigerian, his company registered in Nigeria, and the government of Nigeria should end up being adjudicated in France is another matter.He stood to recover $2.3 billion from Nigeria if he was successful.

To finance this, Mr. Adesanya and SPTCL secured support from Burford Capital Limited, a vulture fund which specializes in gouging developing countries. It enabled him to hire the priciest lawyers in Nigeria and overseas at bewildering cost.The cost of the proceedings would exceed $31 million.

The arbitration concluded that Ministers Malami and Mamman acted without authority in entering into the settlement agreement with Mr. Adesanya. As such, they did not bind Nigeria, and the agreement was “unenforceable because it is a product of corruption and violates Nigerian public policy.”

To secure the impugned agreement, Abubakar Malami allowed himself to be corrupted by Mr. Adesanya. The quid was up to 50% of the disputed payout. It could have exceeded $200 million. He was also offered women. It’s not clear whether he accepted.

In the end, the arbitration tribunal concluded that “Attorney-General Malami deliberately acted against the best interests of Nigeria….” and that his conduct was characterized by “a lack of moral compass.”

While holding the high office of Attorney-General of the Federation, Abubakar Malami had a trusted “business partner”, one Abdulrahman Musa Bashar, who accompanied him everywhere. Their business was bribes. When he needed to discuss this business, Abdul (as Mr. Malami called him) would make the call, and Mr. Malami would speak on Abdul’s phone. Mr. Abdul was Malami’s trusted bagman and corruption circuit-breaker.

It was from proceeds such as this that Mr. Malami acquired the portfolio of properties worth over $154.6 million which the Nigerian courts ordered forfeited two months ago. On the showing of this case, there is more. He will deploy that loot in his pursuit of the governor’s mansion in Birnin-Kebbiin February 2027.

Abubakar Malami visited impunity on the office of Attorney-General of the Federation; indignity upon Nigeria; and infamy upon himself. There is more than enough in the decision of the arbitration tribunal to bring him before the Legal Practitioners Disciplinary Committee and to disbar him from the roll of lawyers in Nigeria. That much is clear.

A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu

The views expressed in this article are entirely those of the author

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