Mambilla: Malami speaks on $200m settlement, ICC corruption finding

Former Attorney-General of the Federation and Minister of Justice, Abubakar Malami, has rejected an International Chamber of Commerce arbitration tribunal’s finding that a corrupt deal was reached between him and the promoter of Sunrise Power and Transmission Company Limited, Leno Adesanya, over a proposed $200 million settlement linked to the Mambilla Hydroelectric Power Project.

Malami, in a statement issued on Tuesday by his Special Assistant on Media, Mohammed Bello Doka, said the tribunal’s findings should be viewed within the context of the full evidentiary record and should not be interpreted as a criminal conviction against him.

He, however, welcomed the tribunal’s rejection of Sunrise Power’s claims against the Federal Government, noting that Nigeria was ordered to be reimbursed for legal costs incurred during the arbitration.

Malami said the outcome protected Nigeria from substantial financial exposure.

The ICC tribunal, in its final award delivered in Paris on September 16, found that a “corrupt deal” had been reached between Malami and Adesanya in relation to a settlement agreement and an addendum that could have exposed Nigeria to as much as $400 million.

The dispute centred on a settlement agreement signed on January 2, 2020, under which the Federal Government was to pay Sunrise $200 million. An addendum signed on March 25, 2020, subsequently introduced an additional $200 million default sanction.

The tribunal ultimately held that the agreements were not binding on the Federal Government because they lacked the required presidential approval.

It also concluded that the agreements were products of corruption and therefore unenforceable under Nigerian public policy.

Malami disputes corruption finding

Responding to the findings, Malami said the Mambilla dispute had existed for more than a decade before he became Attorney-General and had passed through several administrations and government officials.

He said the dispute originated in 2003 and that previous Attorneys-General, including Michael Aondoakaa, had been involved in attempts to resolve it.

According to him, the Federal Government had also entered into a General Project Execution Agreement involving Sunrise Power and Sinohydro in November 2012, years before he assumed office.

Malami said his involvement followed a presidential directive issued in April 2016 concerning the resolution of disputes surrounding the project.

He explained that, as the country’s chief law officer, his responsibility was to advise the Federal Government on its legal exposure and possible options for resolving the dispute.

The former AGF also said the unresolved arbitration had become an obstacle to financing discussions for the Mambilla project, including negotiations involving China Exim Bank.

He cited a September 2019 meeting involving former President Muhammadu Buhari and Yang Jiechi, then Special Representative of Chinese President Xi Jinping, as part of discussions concerning the resolution of the arbitration.

Malami said the proposed $200 million settlement emerged from negotiations aimed at resolving claims that could have exposed Nigeria to billions of dollars in liability while removing what the government regarded as a legal obstacle to the power project.

He said Sunrise had initially demanded $500 million as a full and final settlement during negotiations in London in November 2019, while Federal Government representatives proposed $100 million before the figure of $200 million was reached.

Buhari rejected settlement

Malami acknowledged that former President Buhari eventually refused to approve the $200 million settlement.

The tribunal noted that, in a handwritten note dated April 20, 2020, Buhari stated that the Federal Government did not have $200 million to pay Sunrise.

Malami also acknowledged that a subsequent request for approval made in January 2021 was rejected by Buhari, who wrote, “Not approved.”

The former AGF said he did not instruct that Sunrise be paid after the president rejected the settlement.

Instead, he said he directed lawyers representing the Federal Government to oppose Sunrise’s attempt to enforce the settlement and protect Nigeria’s legal position.

However, the tribunal reached a different conclusion concerning Malami’s conduct after Buhari’s refusal.

It examined communications between Malami and Adesanya, including WhatsApp exchanges relating to the $200 million, and concluded that their interactions were inconsistent with the official positions they were expected to represent.

The tribunal found, on the balance of probabilities, that a corrupt agreement had been reached under which Malami was allegedly promised a share of the money Sunrise would receive.

Malami, however, rejected the allegation and said there was no evidence that he received money or any financial benefit from Sunrise, Adesanya or any connected entity as a result of the alleged arrangement.

He also noted that Adesanya had claimed to possess audio and video recordings of conversations involving the alleged solicitation but that the recordings were not produced before the tribunal.

The tribunal acknowledged that the recordings could have been significant evidence but said it reached its conclusion based on the other evidence before it.

Malami further stressed that the arbitration was a commercial proceeding and not a criminal trial.

He said any allegation of criminal wrongdoing should be determined through the appropriate legal processes.

The Mambilla project dates back to 2003, when a build-operate-transfer contract was awarded to Sunrise Power for the development of a 3,050-megawatt hydropower plant.

Sunrise later commenced ICC arbitration against Nigeria in 2017, seeking about $2.354 billion over an alleged breach of the agreement.

The latest tribunal ruling rejected Sunrise’s related claims and ordered the company and Adesanya to reimburse Nigeria about $11.8 million in legal fees and arbitration costs.