Eshioromeh Sebastian
The Office of former Attorney-General of the Federation and Minister of Justice, Abubakar Malami, SAN, has rejected corruption claims reportedly contained in the arbitral award arising from the Mambilla Hydroelectric Power Project dispute, insisting that an international commercial arbitration finding does not amount to a criminal conviction.
In a statement signed by Mohammed Bello Doka, Special Assistant on Media to the former AGF, Malami welcomed Nigeria’s successful defence against the claims brought by Sunrise Power and Transmission Company Limited, describing the protection of the country from substantial financial exposure as an outcome “every patriotic Nigerian should welcome, irrespective of political affiliation.”
The statement, however, drew a sharp distinction between the outcome of an international commercial arbitration, findings and observations made by an arbitral tribunal for the purpose of determining the claims before it, and a criminal adjudication against an individual.
“The proceedings were commercial arbitration proceedings between parties to a dispute. They were not a criminal prosecution of Abubakar Malami, SAN, and the award does not constitute a criminal conviction of him,” the statement said.
Media reports have stated that the tribunal reached the serious conclusion, on the civil standard applicable to the proceedings, that there was a corrupt arrangement between Malami and the promoter of Sunrise, Mr. Leno Adesanya, under which the former AGF was allegedly promised a share of money that Sunrise would receive.
Malami rejected any suggestion that his official actions were undertaken pursuant to a corrupt agreement or in exchange for personal financial benefit.
The statement said the allegation must ultimately be tested against the complete evidentiary record, raising what it described as an obvious factual question: whether any money or other financial benefit from Sunrise, Adesanya or any connected entity was ever received by Malami pursuant to the alleged arrangement.
It noted that the settlement money itself was never paid by the Federal Government to Sunrise, and that reports indicate Adesanya claimed to possess audio or video recordings relevant to his allegations but that those recordings were not produced before the tribunal.
“Where allegations of this gravity are made, the existence, non-production, authenticity and contents of any claimed recordings are matters of obvious evidentiary importance,” the statement said.
Malami’s office insisted that the Mambilla contractual controversy did not originate during his tenure as Attorney-General, tracing its history to 2003 when Sunrise became involved in the proposed hydroelectric project.
According to the statement, subsequent decisions concerning the project resulted in litigation and competing contractual claims long before Malami assumed office, and his predecessor, Michael Aondoakaa, SAN, had reviewed the dispute and expressed the view that Sunrise had not been properly disengaged before another contractor was brought into the project.
It added that in November 2012, years before Malami assumed office, the Federal Government entered into a General Project Execution Agreement involving Sunrise and Sinohydro as part of attempts to resolve the dispute.
“The relevance of this history is straightforward: Malami did not create the Sunrise dispute, introduce Sunrise to the Mambilla project, or originate the Federal Government’s attempts to settle the controversy. He inherited a longstanding dispute that had traversed previous administrations, Attorneys-General, ministries and contractual arrangements,” the statement said.
The former AGF’s office said his involvement followed governmental and presidential processes, stating that in April 2016, the Chief of Staff to then President Muhammadu Buhari communicated a presidential directive concerning the resolution of the outstanding disputes associated with the Mambilla project.
It explained that 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, adding that the Federal Ministry of Justice was neither the executing agency for the project nor the ministry that originally awarded the underlying contracts.
By 2019, the statement said, the unresolved Sunrise dispute had become relevant to efforts to finance and implement the Mambilla project, and was regarded as an impediment to financing discussions involving China Exim Bank.
Why US$200m Settlement Was Considered
On the controversial settlement figure, the statement said public discussion must distinguish between whether particular settlement terms were ultimately acceptable and why settlement itself was being considered.
It disclosed that Sunrise was asserting claims running into billions of dollars, and that during negotiations in London in November 2019, Sunrise initially proposed US$500 million as full and final settlement, while Federal Government representatives countered with US$100 million, with a figure of US$200 million subsequently emerging from the negotiations.
“The rationale being considered at the time was therefore not whether Nigeria should gratuitously pay US$200 million. The governmental calculation was whether an asserted multibillion-dollar exposure, continuing litigation, financing difficulties and delays to the Mambilla project could be brought to an end through a substantially smaller negotiated settlement,” the statement said.
The statement stated plainly that President Buhari ultimately did not approve payment of the US$200 million settlement, indicating on 20 April 2020 that the Federal Government did not have the money to pay Sunrise — a position communicated to Sunrise by Malami on 22 April 2020.
It added that reports of the award further state that subsequent efforts to obtain presidential approval were unsuccessful, including a January 2021 request upon which President Buhari wrote “Not approved.”
Malami’s office, however, emphasised that following the President’s refusal to approve payment, the former AGF did not simply direct that Sunrise be paid regardless of the President’s position.
“When Sunrise asserted that Nigeria was consequently in default and sought to rely upon the enhanced financial consequences of the settlement arrangements, Malami instructed counsel representing the Federal Government to resist Sunrise’s attempt to have the settlement terms adopted or enforced against Nigeria and to preserve the Federal Government’s legal position,” the statement said, adding that Sunrise’s attempt to crystallise the asserted US$400 million liability was opposed on behalf of Nigeria.
“No Opportunity to State His Side”
The statement stressed that Malami was neither a party to the proceedings nor accorded any opportunity of stating his own side of the story.
“That distinction does not erase adverse arbitral findings. It simply describes their legal character accurately,” it said, adding that if allegations of criminal wrongdoing are to be pursued, they must be addressed through the appropriate lawful processes, with the evidentiary and procedural protections applicable to such proceedings.
Malami’s office noted that the Federal Republic of Nigeria ultimately succeeded in defeating Sunrise’s enormous financial claims, and that the defence lawyers were engaged by Malami while the investigations conducted by the EFCC to strengthen Nigeria’s case were conducted on his instructions.
It said the Presidency has publicly confirmed that the tribunal rejected Sunrise’s claims and awarded substantial costs in Nigeria’s favour.
“As a former Attorney-General of the Federation, he remains gratified whenever the legal interests and public finances of Nigeria are successfully protected, irrespective of the administration under which that result is ultimately secured,” the statement said.
The Office called upon journalists, commentators and political actors to distinguish established facts from allegation and interpretation; to distinguish an arbitral finding from a criminal conviction; and, particularly as Nigeria approaches the 2027 electoral cycle, to allow the complete documentary record rather than partisan considerations to determine public understanding of the events.
It said a more comprehensive response addressing the tribunal’s individual findings will be issued after the complete arbitral award and relevant accompanying records have been carefully studied.
“The Mambilla controversy traversed several administrations, Attorneys-General, ministries, international contractors, presidential decisions, contractual arrangements and years of litigation and arbitration. Its history cannot accurately be compressed into a headline or attributed in its entirety to one public officer,” the statement said.
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