The Office of the former Attorney-General of the Federation and Minister of Justice, Abubakar Malami, SAN, welcomes the successful defence of the Federal Republic of Nigeria in the arbitration proceedings instituted by Sunrise Power and Transmission Company Limited in relation to the Mambilla Hydroelectric Power Project.
The protection of Nigeria from substantial financial exposure is an outcome every patriotic Nigerian should welcome, irrespective of political affiliation.
We nevertheless consider it necessary, in view of the extensive reports and interpretations presently circulating in the media, to distinguish carefully 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.
We are conscious that serious findings have been reported from the 616-page award, including findings concerning the settlement and Addendum, presidential approval, communications between Malami and the promoter of Sunrise, Mr. Leno Adesanya, and an alleged corrupt arrangement.
Those matters should not be ignored, trivialised or answered by speculation.
Equally, findings of that gravity should be considered against the complete evidentiary and documentary record, rather than through selected passages circulating in the media, particularly where the extracts were neither the findings nor reason for the decision of the tribunal.
A comprehensive response to every finding attributed to the tribunal will therefore follow a careful examination of the complete award and the underlying records.
In the meantime, there are important matters already contained in the historical and documentary record that deserve to be placed before the Nigerian public.
A DISPUTE THAT PRE-DATED MALAMI BY MORE THAN A DECADE
The Mambilla contractual controversy did not originate during Malami’s tenure as Attorney-General.
Its history stretches back to 2003, when Sunrise Power and Transmission Company Limited became involved in the proposed hydroelectric project. Subsequent decisions concerning the project resulted in litigation and competing contractual claims long before Malami assumed office.
Years before Malami became Attorney-General, 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. An amicable resolution was consequently recommended as being in Nigeria’s interest.
Similarly, 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 and advance the project.
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.
MALAMI’S INVOLVEMENT FOLLOWED GOVERNMENTAL AND PRESIDENTIAL PROCESSES
Upon assuming office as Attorney-General, Malami did not independently originate the government’s intervention in the Mambilla dispute.
The documentary record relied upon by the former Attorney-General’s office shows that in April 2016, the Chief of Staff to then President Muhammadu Buhari communicated a presidential directive concerning the resolution of the outstanding disputes and contending interests associated with the Mambilla 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.
The Federal Ministry of Justice was neither the executing agency for the Mambilla project nor the ministry that originally awarded the underlying contracts. Its role was principally legal: to advise the Federal Government concerning its exposure and the available means of managing that exposure.
By 2019, the unresolved Sunrise dispute had also become relevant to efforts to finance and implement the Mambilla project.
The records available to the former Attorney-General’s office indicate that the unresolved arbitration was regarded as an impediment to financing discussions involving China Exim Bank. The documentary record further refers to discussions on 5 September 2019 involving President Muhammadu Buhari and Yang Jiechi, Special Representative of President Xi Jinping, concerning resolution of the arbitration.
Settlement discussions therefore did not arise in a vacuum. They formed part of a broader governmental effort to resolve a longstanding dispute and remove what was regarded at the time as a legal obstacle to financing and implementation of a major national power project.
*WHY A US$200 MILLION SETTLEMENT WAS CONSIDERED*
The public discussion must also distinguish between the question whether particular settlement terms were ultimately acceptable and the separate question why settlement itself was being considered.
Sunrise was asserting claims running into billions of dollars.
During negotiations in London in November 2019, Sunrise initially proposed US$500 million as full and final settlement. Federal Government representatives countered with US$100 million. A figure of US$200 million subsequently emerged 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.
Whether every term ultimately negotiated advanced that objective is a separate question and must be examined on its own evidence.
*PRESIDENT BUHARI’S NON-APPROVAL MUST BE STATED PLAINLY*
There is equally no reason to obscure the issue of presidential approval.
President Buhari ultimately did not approve payment of the US$200 million settlement.
On 20 April 2020, the President indicated that the Federal Government did not have US$200 million to pay Sunrise. That position was communicated to Sunrise by Malami on 22 April 2020.
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.”
Any complete account must acknowledge those facts.
But another part of the sequence is equally material.
Following the President’s refusal to approve payment, Malami 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.
Sunrise’s attempt to crystallise the asserted US$400 million liability was therefore opposed on behalf of Nigeria.
That subsequent conduct forms part of the same evidentiary record and should be considered alongside the earlier negotiations.
*THE ALLEGATION OF A CORRUPT ARRANGEMENT*
Media reports state that the tribunal reached the serious conclusion, on the civil standard applicable to the proceedings, that there was a corrupt arrangement between Malami and Mr. Adesanya under which Malami was allegedly promised a share of money that Sunrise would receive.
That is an exceptionally serious allegation and deserves a direct response.
Malami rejects any suggestion that his official actions were undertaken pursuant to a corrupt agreement or in exchange for personal financial benefit.
The allegation must ultimately be tested against the complete evidentiary record.
One obvious factual question is whether any money or other financial benefit from Sunrise, Adesanya or any connected entity was ever received by Malami pursuant to the alleged arrangement.
The settlement money itself was never paid by the Federal Government to Sunrise.
Reports further indicate that 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.
*MALAMI’S INSTRUCTION TO RESIST SUNRISE’S ENFORCEMENT CLAIM IS MATERIAL*
One aspect of the chronology deserves particular emphasis because it bears directly upon the overall account of Malami’s conduct.
President Buhari declined the proposed payment.
Malami communicated that position to Sunrise.
Sunrise subsequently asserted that the Federal Government was in default and sought to rely upon the enhanced financial consequences arising from the settlement arrangements.
Malami then instructed the Federal Government’s lawyers to resist Sunrise’s attempt to enforce those terms against Nigeria and to protect the government’s position.
That sequence is significant.
Any comprehensive assessment of Malami’s conduct should examine not only the terms he participated in negotiating, but also what he did when Sunrise subsequently attempted to invoke those terms against the Federal Government.
The latter conduct cannot simply be removed from the chronology.
*AN ARBITRAL FINDING MUST NOT BE MISREPRESENTED AS A CRIMINAL CONVICTION*
None of the foregoing is intended to diminish the seriousness of the findings reportedly made by the tribunal.
They require a serious documentary response.
But accuracy also requires recognition of what proceedings actually occurred.
An international commercial arbitral tribunal determined contractual claims and associated issues submitted to it. Malami was not standing trial before a Nigerian criminal court, and the arbitral award is not a criminal conviction of him.Moreso, considering that he 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.
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.
*NIGERIA’S VICTORY SHOULD REMAIN AN IMPORTANT OUTCOME*
The Federal Republic of Nigeria ultimately succeeded in defeating Sunrise’s enormous financial claims. The defence lawyers were engaged by Malami and the investigations conducted by the EFCC to strengthen Nigeria’s case were conducted on his instructions.
The Presidency has publicly confirmed that the tribunal rejected Sunrise’s claims and awarded substantial costs in Nigeria’s favour.
Malami welcomes that outcome.
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 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.
Nigeria’s victory should be welcomed, and findings concerning the conduct of former public officials should be carefully examined and answered on the evidence.
The Office therefore calls 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 the public understanding of these events.
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.
Mohammed Bello Doka
Special Assistant on Media to Abubakar Malami, SAN
ADC Governorship Candidate, Kebbi State, 2027
