As Nigeria grapples with the arduous task of overturning the adverse arbitration Award rendered by a London-seated arbitral tribunal in favour of a British-virgin Island company, Process and Industrial Development Limited (P&ID), a number of constitutional, legal, political and national security questions have continued to arise. One of them is the question of the legality or otherwise of retired public officers, providing expert evidence against Nigeria in foreign proceedings. In what follows, this piece makes a case for the impropriety of the practice by drawing parallels with the recently launched impeachment inquiry against US President Donald Trump. In final analysis, the National Assembly will be called upon to remove any lingering doubts surrounding the illegality of the practice.
It is no longer news that an arbitral tribunal was constituted to determine the dispute arising from a 20-year Gas Supply & Processing Agreement ( GSPA) signed by P&ID and the Nigerian Ministry of Petroleum Resources in 2010. And that at the end of the proceedings, the Tribunal on 17th July 2015, found Nigeria liable for the repudiation of the GSPA, and in January 2017 awarded $6.6 billion in damages against Nigeria, with interest at 7 until the Award sum is fully liquidated. The interest amounts to approximately $1.2 million a day, and brings the current total liability of Nigeria to P&ID to a little under $10 billion, over 25% of Nigeria’s disclosed foreign reserves.
Countless reactions have continued to trail both the Award and the entire saga including my intervention here in May 2019, where I expressed incredulity after first becoming aware of the fuller facts and circumstances of the dispute and the proceedings. Incredibly, the case did not elicit adequate public reaction until 16th August 2019, when a Commercial Court in London presided over by Mr Justice Butcher, discountenanced Nigeria’s objections and granted permission to P&ID to enforce the Award in the same manner as a judgment of the English High Court.
With Nigeria suddenly facing the imminent and realistic prospects of the seizure of its commercial assets in the United Kingdom and the indeed the rest of the European Union (at least until Brexit) by reason of the Regulation (EC) 1215/2012 (recast Judgment Regulations), the Nigerian authorities roared into life. First, they commenced investigations into the circumstances surrounding the award of the GSPA to P&ID and then secured the conviction, in record time, of two directors of P&ID, to demonstrate that the contract and the Award were tainted with fraud. P&ID would later contend that the actions of the Nigerian authorities amounted to the harassment and coercion of its officials.
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The Nigerian authorities also interrogated and allegedly detained a former Chief Justice Nigeria (CJN), Salihu Modibbo Alfa Belgore, GCON on the allegation of providing services to a foreign entity. In this piece, Nicholas Ibekwe lays out what is ostensibly the argument of the Nigerian authorities to the effect that Justice Belgore acted as a consultant for P&ID and provided a key legal argument that resulted in the humongous Award against Nigeria by painstakingly analysing Nigeria’s laws, exploiting its shortcomings and citing case laws for the benefit of P&ID, and thereby contravened paragraph 5 of the Fifth Schedule to the 1999 Constitution which prohibits certain past officials from service or employment in foreign enterprises.
Admittedly I joined those who expressed outrage at the development, because I was, and remain, unconvinced that the actions of Justice Belgore in providing expert evidence on Nigerian law to assist the Tribunal, as is customary in international arbitration, amount to a breach of the Code of Conduct or a criminal offence for that matter. However, in the course of an illuminating telephone conversation with a senior member of Nigerian bar, in which we appraised Nigeria’s prospects in the P&ID case, we drew parallels between the rationale behind the prohibition of the named retired public officers from service or employment in foreign companies and the latest crisis brewing across the Atlantic. This phone call prompted a reconsideration of my views, and this intervention.
The ongoing crisis in the US stems from a July 25 phone call between US President Donald Trump and Ukraine President Volodymyr Zelensky where the former allegedly pressured his Ukrainian counterpart to investigate former US Vice President and leading democratic candidate, Joe Biden and his son Hunter for certain alleged corrupt practices. The crisis, which resulted in the launch of formal impeachment inquiry against President Trump by the Nancy Pelosi led House of Representatives, escalated after the subsequent release of a rough transcript of the call by the White House in the wake of the controversy and the whistle-blower report. The crisis has already claimed its first scalp with the resignation of the US Special Envoy to Ukraine, Kurt Volker. While it is beyond the remit of this piece to express an opinion on the credibility or otherwise of the allegation and indeed the outcome of the impeachment proceedings, it is pertinent for our present purposes to consider the basis of the allegation against President Trump.
In the now infamous phone call, President Trump repeatedly reminded President Zelensky of how much the US has done, and can do, for Ukraine; asked for a favour from Zelensky to investigate the allegations of corruption against then Bidens in Ukraine; and promised to put his personal lawyer Rudi Giuliani and the US Attorney General, William Barr in touch with Zelensky and his Federal Prosecutor to discuss and take action on the Biden probe. Additionally, it has been alleged that, the Trump administration carried out a series of actions orchestrated at pressuring the Ukrainian government to dig up dirt on President Trump’s political rivals including delaying congressionally approved foreign aid to Ukraine for no ostensible reason; and that the Ukrainian President was only accorded access to President Trump after eliciting the former’s commitment to “play ball”. The contention therefore is that President Trump used the power of his office to further his own personal, political interest and thereby abused his office for personal gain.
In the words of the first whistleblower, “[ i] n the course of my official duties, I have received information from multiple U.S. Government officials that the President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election… This interference includes, among other things, pressuring a foreign country to investigate one of the President’s main domestic political rivals… I am also concerned that these actions pose risks to U.S. national security and undermine the U.S. Government’s efforts to deter and counter foreign interference in U.S. elections.” Echoing those sentiments, the House Intelligence Committee Chairman, Adam Schiff, concluded that the US President betrayed his oath of office, betrayed his oath to defend our national security, and betrayed his oath to defend the constitution.
While some might be unable in certain climes, to appreciate the allegation against President Trump on the basis that the conversation was typical, or as his supporters have argued, there was no quid pro quo, it is however easy to understand the basis of the outcry by neutrals, the democratic party and the liberal media. As Michael Fuchs writes, the possibilities for
President Trump to undermine US interests for his personal gain are endless, with far- reaching repercussions for US counterintelligence and foreign policy, and this is deeply troubling.
To address such situations, Article 1 Section 9 of the US Constitution provides that holders of public office cannot, “without the consent of Congress, accept any present, emolument, office, or title of any kind whatsoever from any king, prince or foreign state.” Similarly, the US electoral campaign finance laws provide that it is illegal for any person to solicit, accept or receive anything of value from a foreign national in connection with a US election. There is also the 1799 Logan Act which provides that any US citizen, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined or imprisoned for not more than three years, or both. The legislative intent behind these provisions is to prevent a situation where a public officer is in a position to take benefit from a foreign national or government by virtue of certain information which he acquired by virtue of the office he occupies or occupied; and ultimately to avoid a situation where the United States may afford leverage to a foreign country or national and thereby become susceptible to blackmail or manipulation by such foreign country or national. And therein lies the lesson for Nigeria.
It therefore becomes pertinent to interrogate whether there are similar provisions in our laws that prevent public officers from benefitting from their offices in a manner that results in the appropriation of such offices to the detriment of the country’s national security and other interests. Specifically, it is worth asking whether the provisions of Fifth Schedule to the Constitution, particularly paragraph 5 thereof, are sufficient for purpose.
READ CONCLUDING PART NEXT WEEK.
Orjia.ukaisa Nigerian legal practitioner and recently completed his studies for a masters’ Degree in international business Lawfromking’scollegelondon.
Up to 10 seed-stage startups in Nigeria will have a chance to compete in representing the country at the Global Seedstars Summit in Switzerland, where the winner stands to win up to $500,000 in equity investments and other prizes.
This pitch session will be part of an event marking the opening day of Seedspace Growthlab, a new facility that is expected to be an exclusive growth hub for entrepreneurs and executives in Africa to access a global network.
Seedstars, a leading emerging market startup
and investor has partnered with Growthlab, formerly known as Starta, a membership platform for educating entrepreneurs in Africa on how to build high growth business, to launch Seedspace Growthlab on November 8, 2019. The new hub, located on the second floor of the Business Center in Circle Mall, becomes the second Seedspace location in Lagos.
It was noted in a statement, that being part of the largest network of campuses for entrepreneurs in emerging markets, Seedspace Growthlab is one of the 16 hubs by Seedstars in more than 10 cities around the world including: Abidjan, Cairo, Cape Town,
Casablanca, Dar es Salaam, Geneva, Lima, Mexico City, Nur-sultan, and Yangon.
Alessia Balducci, general manager of Seedstars Nigeria, said in the statement, “Seedstars is here to stay, and this new hub in partnership with Growthlab is a testament to our willingness to continue our work to support and invest to build the next success stories.” This she said, to stress the company’s long-term commitments to Nigeria, building on the Ikoyi hub, which was the first Seedspace ever opened in its network.
The launch day will be an opportunity to host Seedstars World Lagos event for the 7th time in the city. The Seedstars dynamic pitch event will be held in the premises from 4:00PM.
Furthermore, Seedstars joined forces with ABAN through LAN to connect with local business angels and organize the Investor Forum, which will also be part of the event and as part of efforts to nurture the local Lagos ecosystem. The 4-hour morning session will be a unique opportunity for investors to network, gain key insights and knowledge and access deal flow during closed-door pitches and 1:1 speed dating with selected startups.
The companies invited to the training session and to pitch at the Seedstars Lagos event must have raised less than $500k in funding and built a minimum viable product, ideally with existing traction. The Seedstars team is searching for one additional criterion: potential for regional and global scalability.
The winner will get a chance to represent Nigeria in Johannesburg, South Africa during the Seedstars Summit Africa ( December 5-7, 2019), and join an all-inclusive trip to Switzerland, to compete at the Seedstars Summit for the title of Seedstars Global Winner and up to $500,000 in equity investments and other prizes.
“We are committed to supporting entrepreneurs who are building high growth businesses in Africa with the relevant content, community and connection to capital that will help them succeed,” said Dotun Olowoporoku, co-founder and non-executive director at Growthlab.
Startups are invited to apply for the Seedstars World Lagos competition at seedstarsworld.com.
The application is open until 28th October, 2019. After careful screening, the Seedstars team will shortlist around ten of the best seed-stage startups to participate in the bootcamp and pitching event on 8th of November, 2019.
Those interested in participating as attendees can register at eventbrite.com/e/seedstars-lagos-2019.
