Yar’Adua and the $9.6 Billion Question The Verdict By Olusegun Adeniyi

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^[1]

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!

The Madness in South Africa

That several black South Africans are frustrated by their
plights in the country they call their own is not in doubt. It is
also understandable given that whoever controls the economy holds
the real lever of power. But they cannot continue to hold Nigerians
and other foreigners responsible for their woes. And, as it is now
becoming increasingly clear, allowing mob to dictate the tone of
engagement in international relations is very dangerous.

Whatever may be their justifications, there is a pattern to the
madness in South Africa. The violence in April 2015, for instance,
followed an incitement by Zulu king, Goodwill Zwelithini who said:
“We are requesting those who come from outside to please go back to
their countries. The fact that there were countries that played a
role in the country’s struggle for liberation should not be used as
an excuse to create a situation where foreigners are allowed to
inconvenience locals” This time, it is the Deputy Minister of
Police, Bongani Mkongi, who is reeling out false and irresponsible
statistics to justify mob actions and why they “cannot surrender
South Africa to foreign nationals.”

The South African authorities are complicit in the violence
against foreign nationals not only by the divisive rhetoric of
their leaders (including unfortunately President Cyril Ramaphosa)
but also because their security agencies have more or less always
looked the other way. A 2007 report of the Africa Peer Review
Mechanism (APRM) of the African Union warned on the danger of not
doing something to curb the rising Xenophopic attacks against
fellow Africans. “Despite the solidarity and comradeship between
black South Africans and the rest of the people of sub-Saharan
Africa during the decades of struggle against apartheid and for
liberation, foreigners, mostly of African descent, are being
subjected to brutality and detention”, the report stated, before
admonishing that efforts be made to address the problem.

Given the disposition of the South African authorities to the
violence against our people, my fear, over the years, has always
been that a day could come when opportunistic mobs in Nigeria would
respond in kind by attacking South African businesses in our
country. Sadly, that day is already here. On Tuesday, a friend
shared with me what he witnessed at the Novare Mall (which houses
Shoprite) in Sangotedo, Lagos on his way home from work. “I was
shocked by the spectacle of hoodlums carting away things from
Novare Mall. Some had the items on their head, some were using
wheelbarrow and others, tricycles. My concern is that the
overwhelming majority of people who work there are Nigerians. They
are going to lose their jobs. Nigerian investors are going to be
seriously affected since the outfit is a franchise. Besides, there
are several shops and businesses there that have nothing to do with
South Africa. They are being ruined.”

Sadly, these are the kinds of collateral damages that come with
mob actions. To worsen matters, similar protests against South
Africa are now spreading across Nigeria. Yesterday, the Novare Mall
along the airport road in Abuja was besieged by hoodlums with
several vehicles stuck in traffic on the expressway for hours.
Policemen drafted in had a hectic time battling the miscreants who
came armed with stones, daggers and cutlasses.

I hope that the authorities in Nigeria and South Africa will
move quickly to restore law and order on the streets before we
begin to think of how to normalize our relations. It is nonetheless
shameful, indeed tragic, that so much damage has been done to
African brotherhood and with it the livelihoods of several of our
peoples, on both sides.

Curbing Book Piracy

Following the piece, two weeks ago, on how pirated copies of my
latest book, ‘From Frying Pan to Fire’ were being sold on Jumia,
the Director General of the Nigerian Copyright Commission (NCC), Mr
John Asein reached out to me. Not only did he share with me what
his commission has been doing on the fight against piracy, he
wanted us to work together to fight the scourge. I assured him of
my support as we seek to protect creativity in our country.

Last Friday, the NCC, in collaboration with Nigerian Publishers
Association (NPA), Association of Nigerian Authors (ANA) and
Nigerian Booksellers Association held a stakeholders’ town hall
meeting in Abuja. I was invited by the DG who ended up co-opting me
as moderator for the interesting session from which I learnt a lot
about piracy in Nigeria. There was a story of when book sellers in
Abuja decided to raid a notorious spot in Suleja where pirated
copies of books are being sold. On the said day, vehicles and
security men were mobilized but when the contingent arrived Suleja,
they decided to first pay a courtesy call on the police command.
While they were with the police, perhaps drinking tea, all the
shops they targeted were evacuated and closed. By the time they got
there, they met empty stalls!

Going by the frank discussions at the session attended by
several stakehiolders, including the current ANA President, Mr
Denja Abdullahi and a former one, Dr Wale Okediran, piracy can be
curbed in our country. But Asein and his team at NCC need all the
support they can get if they are to succeed.

• You can follow me on my Twitter
handle, @Olusegunverdict and
on www.olusegunadeniyi.com^[2]

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Air Peace to Evacuate Nigerians from South
Africa

The Ministry of Foreign Affairs wishes to inform the general
public that following the recent unfortunate xenophobic attacks on
foreign nationals, including Nigerians in South Africa, the
Proprietor of Air Peace Airlines Chief Allen Onyema, has
volunteered to send an aircraft from Friday 6th September 2019 to
evacuate Nigerians who wish to return to Nigeria free of
charge.

The general public is hereby advised to inform their relatives
in South Africa to take advantage of this laudable gesture.
Interested Nigerians are therefore advised to liaise with the High
Commission of Nigeria in Pretoria and the Consulate General of
Nigeria in Johannesburg for further necessary arrangement.

Signed

Ferdinand Nwonye
Spokesperson
Ministry of Foreign Affairs, Abuja
Wednesday, 4 September, 2019