By Haruna Aliyu, Birnin Kebbi
Former Attorney-General of the Federation and Minister of Justice, Abubakar Malami, has welcomed Nigeria’s victory in the arbitration dispute with Sunrise Power and Transmission Company Limited over the Mambilla Hydroelectric Power Project, while calling for honesty and transparency in interpreting the tribunal’s findings
An International Chamber of Commerce (ICC) arbitration tribunal in Paris recently rejected Sunrise Power’s claims against Nigeria, including a demand for hundreds of millions of dollars arising from a 2020 settlement agreement linked to the Mambilla project
However, the tribunal’s 616-page final award reportedly contained serious findings concerning Malami’s handling of the settlement negotiations, including an alleged corrupt arrangement involving him and Sunrise promoter, Leno Adesanya
In a statement signed by his media aide, Bello Doka, Malami said the protection of Nigeria from substantial financial exposure was an outcome every patriotic Nigerian should welcome, irrespective of political affiliation
He, however, urged the public to distinguish between the outcome of an international commercial arbitration, findings made by an arbitral tribunal in determining contractual claims and a criminal adjudication against an individual
According to him, the proceedings were commercial arbitration and not a criminal prosecution of him
“The award does not constitute a criminal conviction of him,” Doka said
He acknowledged reports of serious findings in the award concerning the settlement and its addendum, presidential approval, communications between Malami and Adesanya, as well as an alleged corrupt arrangement
He said the issues should neither be ignored nor trivialised, adding that they should be considered against the complete evidentiary and documentary record rather than selected passages circulating in the media
Doka said Malami’s office would issue a comprehensive response after carefully examining the complete award and underlying records
The former AGF’s office also maintained that the Mambilla contractual controversy did not originate during Malami’s tenure
According to Doka, the dispute dates back to 2003, when Sunrise became involved in the proposed hydroelectric project, with litigation and competing contractual claims predating Malami’s appointment as Attorney-General
He said Malami inherited a longstanding dispute that had passed through successive administrations, Attorneys-General, ministries and contractual arrangements
Doka also cited a 2012 General Project Execution Agreement involving Sunrise and Sinohydro, saying efforts to resolve the dispute and advance the project predated Malami’s tenure
He said the documentary record indicated that, in April 2016, the Chief of Staff to then-President Muhammadu Buhari communicated a presidential directive concerning the resolution of outstanding disputes and competing interests surrounding the project
“As Attorney-General and chief legal officer of the Federation, Malami was required to advise the government concerning the legal exposure created by those disputes and possible means of resolving them,” he said
Doka said the public debate should distinguish between whether the settlement terms were acceptable and why a settlement was being considered in the first place
He said Sunrise had asserted claims running into billions of dollars and that during negotiations in London in November 2019, the company initially proposed $500 million as a full and final settlement
According to him, Federal Government representatives countered with $100 million before a $200 million figure subsequently emerged from negotiations
He said the consideration at the time was whether a potentially multibillion-dollar exposure, continuing litigation, financing difficulties and delays to the Mambilla project could be resolved through a substantially smaller negotiated settlement
Doka acknowledged that former President Buhari ultimately declined to approve the proposed $200 million payment to Sunrise
He said Buhari indicated on April 20, 2020, that the Federal Government did not have the money to pay Sunrise, a position Malami communicated to the company two days later
He also referred to a January 2021 request for presidential approval, which, according to reports on the tribunal award, Buhari rejected with the words: “Not approved”
Doka said that after the President rejected the payment, Malami instructed counsel representing the Federal Government to resist Sunrise’s attempt to enforce the settlement terms against Nigeria
He argued that the subsequent conduct should be considered alongside the earlier negotiations when assessing Malami’s role in the matter
On the tribunal’s reported finding of a corrupt arrangement between Malami and Adesanya, Doka said the former minister rejected any suggestion that his official actions were undertaken in exchange for personal financial benefit
He said the allegation should be tested against the complete evidentiary record
Doka also raised questions over reports that Adesanya claimed to possess audio and video recordings relevant to the allegations but that the recordings were not produced before the tribunal
He said the existence, non-production, authenticity and contents of any such recordings were matters of evidentiary importance
The tribunal, however, reportedly found evidence of an unlawful arrangement involving Malami and Adesanya, while rejecting Sunrise’s claims against Nigeria It also held that the settlement agreement and addendum were not binding on Nigeria because they lacked the required presidential approval and were unenforceable on public-policy grounds.
Doka stressed that the arbitration award should not be described as a criminal conviction of Malami, noting that the proceedings concerned contractual claims
He added that any allegation of criminal wrongdoing should be addressed through appropriate lawful processes
The former AGF’s office also said Nigeria’s successful defence prevented potentially substantial financial exposure, with the tribunal ordering Sunrise and Adesanya to reimburse Nigeria for legal costs Reports put the amount at about $11.8 million.
Doka said Malami remained gratified whenever Nigeria’s legal interests and public finances were protected, irrespective of the administration under which such outcomes were achieved
He urged the public to consider the full history and documentary record of the Mambilla dispute, rather than attributing the controversy in its entirety to one public officer