Energy - News - Oil & Gas - March 28, 2021

OPL 245: Global coalition writes Buhari, wants Nigeria to press corruption charges against Shell, other accused

Group says Italian court's decision on March 17 clearing the 13 accused was an attempt to bully Nigeria into making concessions that would undermine the rule of domestic law.

A global coalition of anti-corruption and rights groups has written President Muhammadu Buhari asking him to ensure Nigeria goes ahead to press corruption charges against oil giant, Shell, its partner, ENI, and their top officials accused of involvement in the OPL 245 corruption scandal despite the ruling of an Italian court a fortnight ago clearing them.
On March 17, an Italian court in Milan ruled that some former executives of the oil companies accused of involvement in the controversial about $1.1 billion Malabu deal in Nigeria were not guilty.
They were alleged to have helped Nigerian government officials, led by the former Minister of Petroleum Resources, Dan Etete, to deposit the money in an escrow account for use in settling bribes over the allocation of the oil concession.
However, the court said the former top executives of Shell, including Malcolm Brinded and Paolo Scaroni, as well as ENI’s Claudio Descalzi and other top managers had no case to answer and discharged and acquitted.
But, in the letter to President Buhari, the coalition described the Italian court’s decision as “partial freedom granted the oil giants”, saying that would not stop Nigerian government from prosecuting the accused in Nigeria.
“Nigeria should press on with the corruption charges and should not be cowed by any bully tactics of the oil giants who may see the Italy ruling as a shield,” the coalition said in the letter.
The coalition’s petition was signed by Luca Manes of Re: Common; Nicholas Hildyard of The Corner House; Olanrewaju Suraju of Human and Environmental Development Agenda, (HEDA Resource Centre), and Simon Taylor, Global of Witness.
The coalition said that despite the Milan Tribunal ruling that the 13 defendants had no case to answer, there are prospects of an appeal in Italy, as they are aware of plans by the Milan Public Prosecutor’s Office to appeal the verdict.
Unlike in Nigeria and other common law jurisdictions, the coalition said Italian law does not permit judges to convict on the basis of circumstantial evidence.
The group recalled that the recent Supreme Court rulings have set the bar for international corruption so high that a conviction would be difficult unless there was naked evidence of a bribe being paid, captured on camera or on tape.
“We fear that the OPL 245 case may have fallen at this hurdle, despite the voluminous evidence submitted by the Prosecutor as to the knowledge of Shell and ENI that bribes would be paid; that the Resolution Agreements were designed by the two companies to use the Federal Government of Nigeria as a shield to protect themselves from making direct payments to Etete; and the meticulous tracing of where the payments ended up,” the coalition said.
The coalition said because of the differences between legal systems in Italy and Nigeria, no “double jeopardy” agreement exists between the two countries, hence, ENI, Shell, Etete, Abubakar and several others who were charged in Milan are also being prosecuted in Nigeria.
“We are aware of mischievous, self-serving calls in the press from allies of those being charged that the Nigerian prosecutions should be dropped on the basis that Milan has found no case to answer.
“These calls must be rejected. Italy is not in charge of Nigeria’s justice system. The judges in Nigeria must be allowed to hear the cases and to judge them on the basis of Nigerian law. Indeed, the world is now watching the Nigerian prosecutions,” the coalition said.
The group said the judgment of the international community, already alarmed by the dismal Italian ruling, is likely to be harsh were Nigeria to drop the cases, given the strength of the evidence amassed by the Economic and Financial Crimes Commission (EFCC).
“The need to put the Milan judgment into perspective is all the more urgent given allegations that the trial may have been polluted. The Milan Prosecutor sought to admit a statement by Piero Amara, a former outside counsel for ENI, that ENI had conducted surveillance of the prosecutors, key witnesses and the judges in order to discredit witnesses or gain an advantage in the trial”
The anti-corruption group said the full transcript of Amara’s statement was not made public, that large parts were blacked out and the judges refused to admit the evidence.
It noted that an Italian newspaper has now reported on the blacked-out parts of the statement, which reportedly alleged that ENI’s lawyer had “preferential” access to OPL 245 judges.
“The allegations were investigated by the Italian authorities but were dismissed after Eni denied them. If true, Amara’s allegations would constitute strong grounds for a retrial. We therefore urge Nigeria, as the victim in the case, to demand that the full text of Amara’s evidence is made public so that the Nigerian public – and the wider international community – can be satisfied that there was nothing untoward in the conduct of the trial.”
The anti-corruption group applauded Buhari administration’s stance in his letter to ENI of 14 June 2018, in which he stated that there should be no decision on whether or not to award an OML to the companies until extant prosecutions were complete.
“We urge you to hold the line and to resist siren calls for negotiations with Eni and Shell in the wake of the Milan trial. We believe that the companies should respect the prosecutorial process in Nigeria and should not use a judgment in Italy to bully Nigeria into making concessions that undermine the rule of domestic law.
The coalition said recent arbitration cases filed with ICSID by both companies claiming unsubstantiated and exaggerated damages are a confirmation of their bullying and not the respectful attitude towards the Nigerian government and people.
“We as civil society organisations and partners in the promotion of accountability in the extractive sector are in solidarity with the Nigerian Government and Italian Prosecutors in ensuring justice is delivered in this and other relevant cases” the group said.

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