The Verdict By Olusegun Adeniyi, Email: [email protected]
Even before I began receiving inquiries regarding the controversial $9.6 billion judgement that has become a Sword of Damocles over Nigeria, I was digging to find out what happened. Late President Umaru Musa Yar’Adua, under whose administration the said contract was signed, is not around to defend himself so I felt an obligation to know the extent of his involvement, if any. The first person I reached out to was Mr Tanimu Yakubu Kurfi, Yar’Adua’s Chief Economic Adviser and close confidant who also had the gas assignment.
In my 2011 book, ‘Power Politics and Death’ I wrote: “…It was at the margin of the 33rd G8 summit in Germany in June 2007 that the then Russian President, Mr. Vladimir Putin, had a brief chat with Yar’Adua. He bluntly told the president that Nigerian officials were denying a level playing field to Gazprom (the Russian state oil and gas company regarded as the largest extractor of natural gas in the world) which was having difficulties gaining entrance into the nation’s oil and gas industry. Putin told the president he had information that Nigerian government officials, in collaboration with Shell, were deliberately making it impossible for Russian and Chinese IOCs to operate in the country. This was a serious allegation that could not be taken lightly. Upon return from the summit, the president directed Tanimu to monitor and provide him with feedback on NNPC’s proposed partnership with Gazprom until appropriate protocols were signed.”
Following that encounter in Germany, I recall that Tanimu travelled to Moscow to open discussions with Russian gas authorities. That he had no idea about this contract is very telling. The then Attorney General and Justice Minister, Mr Michael Kaase Aondoakaa, SAN, has also put it on record that he knew nothing about it. While I can confirm that it was never at the period discussed at the Federal Executive Council, I went further in my investigation.
Those who served in the administration of the late Yar’Adua knew that when it came to contracts, one man had the last say: Engineer Emeka Ezeh, then Director General of the Bureau of Public Procurement (BPP). Without a Certificate of No Objection from the BPP, no contract would be awarded. Ezeh, one of the few officials in whom the late Yar’Adua had implicit confidence, told me on Tuesday that he only became aware of the contract when the scandal broke. He then proceeded to give me a copy of the BPP law and a relevant document which puts a serious question mark on the judgment.
First, the law. Part 1V of the BPP Act 2007 deals with ‘Fundamental Principles of Procurement’. Section 16, subsection 3 states, “For all cases where the Bureau shall set a prior review threshold, the Bureau shall prescribe by regulation, guidelines and the conditions precedent to the award of Certificate of ‘No Objection’ under this Act”. And then subsection 4: “Subject to the prior review thresholds as may be set by the Bureau, any procurement purported to be awarded without a “Certificate of ‘No Objection’ to Contract Award” duly issued by the Bureau shall be null and void.”
Now, the document. ‘The Approved Threshold’ given to the ‘Tenders Board and Accounting Officers (Permanent Secretaries and Chief Executive Officers) of all Ministries, Departments and Agencies (MDAs)’ were specific on the amounts that could be approved without recourse to BPP. Under ‘Special Works (NNPC)’, it is stated very clearly that any oil and gas contract that is worth $20 million and above must go to the Federal Executive Council (FEC) and secure the BPP Certificate of No Objection before approval.
It is interesting that we still do not know the exact sum of this vexatious deal. Yet P&ID was reported to have spent approximately $40 million in pre-contract expenditures. The $9.6 billion Nigeria is expected to pay is made of a $6.59 billion profit the company claims it would have made over a life project of 20 years and the balance of $3 billion accumulated interest since 2012 when the judgement was given. It is interesting that it would take some ‘Oyinbo’ people to teach Nigerians the real meaning of ‘419’!
According to their statement, “P&ID and the Nigerian Government entered into a 20-year Agreement – known as the Gas Supply and Processing Agreement (GSPA) – to refine natural gas for powering Nigeria’s electricity grid. The GSPA would have been very profitable for both P&ID and Nigeria and have generated an additional 2,000 megawatts of power for the national grid. Such a major increase in low-cost electricity supply brought by the P&ID project would have been transformative for millions of Nigerians.”
Should these extraordinary benefits meant to accrue to the country not have elicited publicity on the day the deal was sealed? Do you sign such a contract in secret with intended beneficiaries, in this case Nigerians, not told of their good fortune? Nor without the Attorney General of the Federation and the BPP Director General in the picture? Even more, Yar’Adua’s Chief Economic Adviser had no clue about the contract purportedly signed at a period the late president was battling for his life in Saudi Arabia and Vice President Goodluck Jonathan was kept in limbo at home without any authority to act. While I hesitate to impute motives of impropriety when I have no proof, it is difficult to fault those who allege that this P&ID contract is one big scam.
In a damning report published yesterday, ‘Is one of the world’s biggest lawsuits built on a sham?’, Bloomberg Businessweek, a globally respected American weekly business magazine, not only exposed the sordid contract for what it is, the writers also provided evidence as to why Nigeria must fight it. The intro sums it up: “A dying Irishman went for one last big score in Nigeria. The project failed, but a London tribunal says his company’s owed $9 billion and counting.” Those who have not read the story should do so, https://www.bloomberg.com/news/features/2019-09-04/is-one-of-the-world-s-biggest-lawsuits-built-on-a-sham
However, the matter has now become complicated. I understand that it was when the claimant, P&ID, appointed their Arbitrator that President Goodluck Jonathan became aware of the Arbitration and the Ministry of Petroleum Resources then appointed Mr Bayo Ojo, SAN, a former Attorney General and Justice Minister as a party nominated arbitrator to constitute the Arbitral Tribunal. By the time the sum of $850 million was finally agreed as the term of settlement in May 2015, the government was on its way out.
Rather than pay what could have been used against him, Jonathan rightly decided to push the matter to President Muhammadu Buhari. Questions for this administration are: Under what circumstances was Mr Supo Shasore, SAN, removed and replaced by Chief Bolaji Ayorinde as the lawyer for the Ministry of Petroleum Resources? Why was the issue of fraud now being raised never canvassed at any of the hearings? By approbating and reprobating, the federal government may have fallen into the hands of the P&ID people, including their Nigerian enablers.
Before I conclude, let me make a quick point. Yar’Adua had a two-prong gas plan. One, compelling the IOCs to make gas available for domestic use, while allowing third parties (Russians, Chinese, Indians et al) access to gas under their Joint Ventures on commercial terms. Two, seizure of LNG gas under power emergency to meet domestic gas requirements. I have it on good authority that the late president never met anybody from P&ID and this can be easily verified by the current administration. All the records of visitors to the villa are kept.
While I concede that some officials might have taken advantage of the president’s illness to breach their fiduciary duties to our country, the insinuation that the fiasco came about because Yar’Adua was in ‘coma’ lacks any substance. Even if he were in Nigeria at the time, presidents don’t sign contracts. That some imaginary Yar’Adua cabal entered into the deal is also false. What is clear to me is that P&ID propagandists as well as government officials who dropped the ball are on overdrive because those who would have disputed their claims are dead.
Meanwhile, I have heard the argument that the P&ID deal was not a contract but an agreement, seen as a project “at no cost to government”. That makes it even worse. There are many things begging for answers here, including the process that led to such ‘agreement’ as well as the terms and conditions. The quantum of the award also raises questions about the integrity of the Arbitral Tribunal.
Do you award anticipatory profit recoverable over 20 years, especially when neither risks nor obligations were put on the partner? It is trite to argue that before committing a country to anything that has financial implications, the Ministry of Finance, the AGF and the office of the president must be involved, not just the supervisory ministry. In this case, none was involved. Even if it is Public Private Partnership (PPP) arrangement, the Infrastructure Concession Regulatory Commission (ICRC) must also be involved. It was not, either.
Now, what is the way forward?
I am all for the federal government fighting this as a case of fraud which I believe it is. But that has also become rather tricky. The authorities must understand that how this matter is resolved could impact Foreign Direct Investment (FDI) to our country. So, to that extent, we cannot afford to turn Nigeria to a rogue country by naturalizing the assets of British and Irish governments, as some hawks may be canvassing. We should avoid a complicated diplomatic impasse that would be counter-productive for us in the end.
Whatever the eventual outcome, we can take certain lessons from the unfortunate saga. One, we must put in place a well-articulated National Arbitration Policy. Two, all pending arbitrations should be reviewed with special attention to the ongoing International Chamber of Commerce (ICC) case in Paris concerning the Mambilla Hydroelectric project. Finally, we must institute measures to ensure that Nigerian public officials who sign contracts on behalf of the rest of us do not sell the country cheap. Tying us to scandalous obligations after trading away the jurisdiction for arbitration in case of legal redress is the kind of action that would normally attract capital punishment for erring public officials in some countries!
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