Mambilla dispute: $200m settlement was in Nigeria’s interest, says Malami

Former Attorney-General of the Federation (AGF), Abubakar Malami, has said he acted in the interest of Nigeria during the dispute between Sunrise Power and the Federal Government over the Mambilla hydropower project.

Malami was reacting to findings by an International Chamber of Commerce (ICC) tribunal concerning a $200 million settlement reached between Sunrise Power and the Federal Government in 2020.

The tribunal reportedly held that the settlement was linked to corruption and alleged that Malami was to benefit from the deal.

In January 2020, Malami and the then Minister of Power, Saleh Mamman, signed an agreement under which the Federal Government was to pay Sunrise Power $200 million.

Malami, however, maintained that his actions in the matter were taken in the interest of the country.

The addendum signed in March divided the sum into two $100 million instalments and exposed Nigeria to an additional $200 million default payment, apart from interest.

Leno Adesanya, Sunrise Power promoter, testified that Malami and Mamman demanded that he pay 50 percent of the settlement as bribes. He said they told him Nigeria would pay the first half and release the second after he had done “what is needed”.

Adesanya told the tribunal that he rejected the demand. He also claimed to possess audio and video recordings of the conversations.

Despite an order from the tribunal, he refused to produce the recordings, citing concerns for his safety and that of his family.

The tribunal found it implausible that Adesanya would withhold recordings that cleared him of wrongdoing. It also observed that the payment structure subsequently inserted into the addendum mirrored Adesanya’s own description of the alleged bribe demand: Nigeria would first pay $100 million, after which the remaining $100 million would be released.

The tribunal concluded that a corrupt deal was reached between Adesanya and Malami.

It identified the promised benefit as a share of the settlement money payable to Sunrise.

Although the precise agreed amount could not be confirmed, Adesanya’s own evidence suggested a demand of as much as $100 million — half of the original settlement.

The tribunal found that Malami cooperated in committing Nigeria to the addendum, signed terms that could expose the country to a $400 million liability and coordinated procedural steps with Adesanya.

The tribunal also found that the settlement agreement and addendum were products of corruption and therefore unenforceable. It did not make a corresponding finding against Mamman because the withheld recordings were the only potential direct evidence of his role.

No settlement money was ultimately paid because then President Muhammadu Buhari refused to approve the arrangement. The tribunal said that did not remove the corrupt character of the promise.

‘MY ACTION NOT MOTIVATED BY FINANCIAL BENEFIT’

In a statement issued on Tuesday by Mohammed Bello Doka, his special assistant on media, Malami said he rejects any suggestion that his actions as AGF were motivated by a promise of personal financial benefit.

“Malami rejects any suggestion that his official actions were undertaken pursuant to a corrupt agreement or in exchange for personal financial benefit,” the statement reads.

“The allegation must ultimately be tested against the complete evidentiary record.”

The tribunal, in its 616-page award, had found that Malami and Adesanya had a common intention to secure a settlement favourable to Sunrise and at Nigeria’s expense.

It also examined communications between the both men, Malami’s role in the negotiation of the settlement and subsequent efforts to obtain presidential approval for the payment.

Malami said there was no evidence presented before the tribunal linking him to any financial benefit in the dispute.

“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,” Malami said.

“The settlement money itself was never paid by the federal government to Sunrise.”

Malami said the “existence, non-production, authenticity and contents” of Adesanya’s recordings were matters of “obvious evidentiary importance”.

‘DISPUTE PREDATES MY TENURE’

The former AGF also rejected any suggestion that he originated the Sunrise dispute or independently introduced the settlement.

The statement noted that the controversy dated back to 2003, years before Malami became attorney-general, and had passed through several administrations, attorneys-general and ministries.

It said the federal government had been dealing with Sunrise’s claims running into billions of dollars, while the unresolved dispute had become an obstacle to financing discussions for the Mambilla project.

“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,” Malami said.

“Whether every term ultimately negotiated advanced that objective is a separate question and must be examined on its own evidence.”

Malami acknowledged that Buhari did not approve the payment.

“Following the President’s refusal to approve payment, Malami did not simply direct that Sunrise be paid regardless of the President’s position,” the statement added.

Malami said he 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”.

In his statement, Malami said a comprehensive response to the tribunal’s individual findings would follow after a review of the complete award and the underlying records.

‘AWARD NOT CRIMINAL CONVICTION’

The statement also cautioned against presenting the tribunal’s findings as a criminal conviction.

“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,” it said.

It added that Malami “was neither a party to the proceedings, nor accorded any opportunity of stating his own side of the story”.

The tribunal had criticised Malami for not appearing for oral examination during the proceedings after submitting a witness statement.

Malami said the seriousness of the findings should not be ignored but argued that they should be considered alongside the complete documentary and evidentiary record.

“Findings of that gravity should be considered against the complete evidentiary and documentary record, rather than through selected passages circulating in the media,” he said.

Malami also welcomed Nigeria’s victory in the arbitration, saying the protection of the country from substantial financial exposure was an outcome every Nigerian should welcome.

The tribunal, in its judgment, ordered Sunrise and Adesanya to reimburse Nigeria $11.82 million in legal fees and $414,125 in arbitration costs. They are also to bear their own legal expenses.

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