Introduction:
In following the Mambilla Power Project debacle, what is striking are the attendant Melodrama and Manoeuvres, spread over 24 years of delay which has culminated in the on-going criminal trials in Abuja and international arbitration in Paris, France, instead of Power of increased power generation for Nigeria.
The Mambilla Power Project
The MPP drama started under President Obasanjo’s regime in 2003 to 2007 during which the then President re-awarded the Project as a procurement instead of BOT to another company to be paid for from excess crude oil funds of $16.4 billion. The problems which arose from that decision were solved by the Yar’Adua and Jonathan regime (2007 to 2012) with the cancelation of the Obasanjo procurement contract and the re-award of the Mambilla project to Sunrise and the signing of a General Project Execution Agreement (GPEA). The then President Buhari, who inherited the GPEA, wanted to implement this but his Minister of Power instead, caused the project to be re-awarded to yet another company in 2017. This and subsequent actions of FGN between 2017 and 2021 led to Nigeria being dragged to the International Arbitration Panel (IAP) in France.
In spite of the efforts of the governments of Obasanjo, Yar’Adua, Jonathan, and Buhari, the Mambilla Power Project (MPP) remains entangled in arbitration because of lack of commitment and lack of discipline. However, the project remains truly critical to national economic development in the same way as with major critical infrastructures like Ajaokuta Steel Project, Ikot Abasi Aluminium Smelter Project, and other power projects which require genuine commitment and strong discipline.
The inability of previous governments to follow through on their earlier commitments have kept the project in limbo. However, both local experts and international bodies still believe that the current Federal Government would be able to resolve the arbitration matters to enable this giant power project to take-off before the end of this year.
*The Melodrama*
Public attention was caught by the decision of EFCC in declaring former Minister, Dr Olu Agunloye, author of the Build, Operate, Transfer (BOT) contractual agreement, a Wanted Person on the night of 12 December 2023. This move was said to be part of the attempt at criminalising the activities of all government officials including Ministers, Attorneys General, and Civil Servants who worked on the Mambilla project from 2000 to 2023 excepting those who served under the Buhari’s APC administration. This criminalisation is the core of the grand strategy of FGN to absolve the Government of Nigeria from huge liabilities as damages at the Arbitration in France.
The strategy of the FGN is that if Agunloye’s May 2003 BOT contract awarded to Sunrise could be criminalised, then everything that happened between 2003 and 2023 would become null and void and Nigeria would be cleared at the Arbitration. So, in November 2023, FGN pleaded in its Statement of Defence in France that:
Agunloye did not have the power to award the BOT Mambilla contract of 22 May 2003.
The then President Obasanjo verbally directed Agunloye not to award the contract. President Obasanjo was not aware of the BOT contract until over 20 years after.
To corroborate the FGN’s Statement of Defence in France, EFCC swung into action, declared Agunloye wanted, arrested him the following day when he walked into EFCC Office by himself. The EFCC then went on to detain and arraign him in court and asked that he be remanded him in prison. There was public outcry and good spirited lawyers rose in his defence to get his bail and stop his being railroaded to prison.
Part of government strategy to absolve itself of irregularities it was accused of is to plead that all claims of Sunrise are illegal and fraudulently procured. FGN therefore pleaded that all Attorneys General, Ministers, and government officials are corrupt, and they do not obey the sitting presidents of Nigeria. In addition, the Nigerian government submission was the denials by presidents of Nigeria (Obasanjo and Buhari) of any knowledge of the contracts. It was President Obasanjo who first denied and said that he did not approve the BOT contract to Sunrise, and that he did not know of the contract to Sunrise until 20 years after. Then President Buhari denied authorising his Ministers to negotiate with and sign contracts with Sunrise.
*The Manoeuvres*
As part of FGN’s manoeuvres, Ministers and Attorneys General under President Buhari APC Government will not be criminalised and prosecuted even though they are the ones who took actions between 2016 to 2021 under President Buhari that led to the Arbitration in France in 2021.
To make these pleas stick, the Attorney General of the Federation under President Buhari, Alhaji Abubakar Malami pleaded in the Arbitration in France that when he, along with Buhari’s other Ministers (Minister of Finance, Minister of Agriculture and Minister of Power) went to the UK to negotiate with Sunrise in November 2019, they did not get the permission of the then President. Malami also pleaded that they did not get the President’s permission when they made a formal offer of $200 million to Sunrise in early January 2020. President Buhari’s Attorney General, Alhaji Abubakar Malami, also pleaded that he signed two agreements in January and March 2020 in error for the settlement of $200 million and $400 million respectively. He also pleaded that he and the then Minister of Power under Buhari, who signed the Agreement and made written offers to Sunrise, did not take the President’s permission.
Retroactive bribing, that is, bribe in arrears, is part of the manoeuvres of the Federal Government which accused Agunloye of a retroactive bribe taking of N3.6 million in October 2019, over 16 (sixteen) years after he awarded the BOT contract. FGN also accused Alhaji Abubakar Yola, the then Solicitor General of taking a retroactive bribe of N10 million in 2019, 7 (seven) years after he signed the General Project Execution Agreement (GPEA) along with the then Minister of Power while Buhari’s Attorney General, Alhaji Abubakar Malami pleaded that Sunrise offered him “money and women” in November 2021, two years after he signed the agreements of $200 million and $400 million.
Agunloye, too, was full of manoeuvres. First, it was in June 2023 when EFCC was chasing him about after he voluntarily made a statement to the EFCC in May 2023. Agunloye had then sought a court injunction to restrain the EFCC from harassing him and violating his fundament human rights. However, Agunloye was outmanoeuvred by EFCC, through repeated court adjournment and suddenly declaring him wanted, in December 2023, causing his, arrest detention, arraignment in January 2024 leading to his subsequent remand him in Kuje Prison. It is worthy to note that, as part of the Melodrama, it is this same type of court action denied Agunloye that was granted to former Governor Yahaya Bello to prevent EFCC from arresting him.
Agunloye’s manoeuvre was not limited to the “stop harassing me” suit. Anticipating that his bail may be withdrawn, Dr. Agunloye raised a motion that challenged EFCC for attempting to arm-twist his sureties by inviting and querying them. He also raised a preliminary objection to challenge the competence of EFCC to investigate and prosecute him because he argued that he has not committed any financial crime and that EFCC did not have a valid fiat from the Attorney-General of the Federation to prosecute him. He referred to the EFCC Act and the case of Nwobike versus FGN determined by the Supreme Court in 2021. READ ALSO:
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Agunloye’s manoeuvres did not stop here, he argued that his trial over the Mambilla project BOT contract was of public interest and so sought an Amicus Curiae Motion to bring serving Attorney-General of Federation, President of Nigerian Bar Association, former Attorney-General of the Federation, and other prominent Nigerians to make presentations before the court. But the Court, under Hon Justice Jude Onwuegbuzie, ruled against the Amicus Curiae Motion on the 15 April 2024.
*Conclusion*
The trial has been adjourned till 15 May 2024 for the court to give ruling on the Preliminary Objection raised by Dr. Agunloye. It is hoped that justice will be served. If, however, the judge also dismisses the preliminary objection raised by Agunloye, the melodrama continues.
Oluwafisan BANKALE fnge, former Editor, Daily Sketch and Retired Diplomat
for *Alpha Justice and Advocacy Group*
