The Nigerian judiciary’s commitment to upholding the rule of law faces a decisive test this Monday, February 7. Nigerian prosecutors will present evidence to Federal High Court Justice Binta Nyakothat that anticorruption activist Olanrewaju Suraju should stand trial for violating section 24 of the Cybercrime Act 2015, the cyberstalking provision.
As explained below, the evidence in support of the charges is extraordinarily flimsy. More importantly, section 24 is no longer enforceable in Nigeria. The Community Court of Justice for the Economic Community of West African States, whose decisions bind all Nigerian courts, ruled in 2020 that the cyberstalking section was so vague and open-ended that it violated the freedom of expression provisions of the African Peoples and Human Rights Charter and hence was invalid (here). Justice Nyakothat should therefore immediately dismiss the charges against Suraju.
The only conceivable reason she might not is if she is under “extra-legal” pressure from those who stand to gain from the case being continued.
Filed at the insistence of former Nigerian Attorney General Mohammed Bellow Adoke, the case alleges that Suraju circulated information about Adoke that Suraju “knew to be false for the purpose of causing insult to Adoke” (charge sheet). That information pertains to Adoke’s role in the OPL-245 scandal, where Royal Dutch Shell and ENI paid $1.1 billion for rights to the offshore oil property knowing the money would go to Nigerian President Goodluck Jonathan and other senior officials rather than to the Nigerian government (here).
Adoke and accomplice’s goal in getting charges filed against Suraju is to make him suffer as much as possible, both to discredit him and to deter others from continuing to dig up information about perhaps the grossest corruption crime ever committed in Nigeria. If rather than dismissing the case outright, Justice Nyakothat continues to assess the strengths of the prosecution’s evidence, and even worse orders Suraju jailed while she does, it will send an unmistakeable signal to other anticorruption activists: That they challenge corruption in Nigeria at their peril.
Nigerian civil society, the media, and Abuja’s diplomatic community should show up in force at Monday’s hearing. Not in support of Suraju per se but in support of the rule of law and the fight against corruption. By their presence, they will show Justice Nyakothat that she is not alone. They will also signal to those that would corrupt Nigeria’s justice system that their day is over.
Should Justice Nyakothat erroneously and unfortunately decide she needs to examine the prosecution’s evidence against Suraju, she should be able to see it through it in a matter of hours. Prosecutors have not offered a shred of evidence to substantiate their claim. The summary below is thanks to a group of civil society activists who have monitored the OPL-245 matter closely.
1. No evidence is provided to substantiate any of the three elements of the charge: namely
a) that Suraju “circulated on his social media handles an email and audio interview;”
b) that Suraju “knew [the circulated material] to be false after the same was rejected in evidence in a criminal court in Italy”; and
c) that Suraju’s aim was “to insult and dent the image of Mohammed Bello Adoke SAN”.
i) There is no evidence of any posts by Suraju on Facebook or Twitter or anywhere else circulating the audio or the email at issue. Suraju has admitted circulating press reports about an RAI audio interview and the JP Morgan email – but that is not evidence of circulating the actual raw materials.
ii) Contrary to the prosecution’s assertions, the RAI audio and the JP Morgan email were NOT rejected as evidence in Italy. Rather, both were accepted into the court record, and both were commented on in the court judgments:
- The RAI tape
The tape was accepted as evidence in the fast-track trial of Obi and Dinardo. At page 249 of the December 2018 judgment by the investigating judge, (Case: No. 54772/13 General Criminal Records Registry/ No. 17804/17 Investigating Judge Registry/ No.2232/18 Judgment), the judge specifically confirms that the tape was part of the record and gives the court file number: audio file in Folder 1 – CD/call Report M. A. Bello: see folder 1, pp. 662-666 for transcripts (Italian translation in folder 20, pp.014347-014385).
Furthermore, the tape is cited (at footnote 629) in support of the court’s finding that “in Nigeria USD 500 million out of the money paid by ENI to acquire OPL 245 is missing, after Aliyu Abubakar or his agents withdrew it in cash, or exchanged it at the Bureaux de Change”. The footnote states: “This is the same amount stated by the so-called Mohammed Bello Adoke during a telephone conversation with a journalist from the television show Report, which was put on record in these proceedings: during the call, the interviewee – who claimed to be the former Nigerian Minister of Justice Adoke – stated ‘about 500 million dollars were used for many different things, not just the 200 million reported by Etete as being reserved for the Italians”.
The judgment is a public document.
- The JP Morgan email
The email was accepted as evidence on 3rd February 2021 in the full trial of Shell and Eni and other defendants. The email had been obtained pursuant to a European Investigation Order, which forms part of the public court record and is available online at https://aleph.occrp.org/entities/63100032.8ac41da24e52345e186a782f5dfff920bba4a6e3.
The Inspector General of Police was informed of this in a letter by civil society of 27 April 2021. However, the letter is not included in the evidence file.
The Milan Court of First Instance specifically refers to the email in its judgment, which is available online in English translation at https://www.eni.com/assets/documents/documents-en/opl-245-full-decision.pdf.
At p.294, the judges write: “We have already had the opportunity to discuss these events that involved the bank account of the Minister Adoke Bello, events that were reconstructed both by the Public Prosecutor and by Eni’s defense counsel in the “financial flows” brief. The divergences between the reconstructions relate to issues that do not affect the evidentiary value deriving from the ascertained payment of over $2 million in cash in the period close to the monetization of the proceeds of the sale of OPL 245. Regardless of the formalization of the purchase of the property, the relations between Minister Adoke and the companies of Alhaj Abubakar Aliyu, further confirmed by the exhibits produced by the Public Prosecutor during the rebuttals, prove a mix of economic interests that is seriously probative from the point of view of the receipt of benefits deriving from the payments to Malabu”.
At p.238, the judges rule that Adoke received monies from the OPL 245 deal: “Adoke Bello is the only one of the three public officials named in the indictment as necessary parties of the corrupt arrangement to have received a benefit deriving directly from the funds coming from the OPL 245 transaction”.
2. Adoke’s complaint and witness statement do not constitute evidence
Neither Adoke’s complaint nor his witness statement provide evidence of cyberstalking. The complaint makes allegations of forgery not cyberstalking. The witness statement is in the same vein. It beggars belief that either should have been included in the so-called evidence file: the allegations in them are not backed by evidence – they simply assert forgery – and, in any event, forgery is not included in the charges.
3. Abubakar’s witness statement is procedurally flawed, irrelevant to cyberstalking charge and conflicts with previous statements to EFCC as recorded in Milan court files
i) Abubakar is illiterate. Yet the statement contains no indication that it was written not by him but taken down by a police officer. Is it even admissible?
ii) The statement provides no evidence as to cyberstalking and therefore irrelevant to the prosecution case.
iii) Abubakar states that “in all my relationship with [Adoke] there was never a time I had any business transactions or relationship with except one when I attempted to sale a property him which did not materialise”.
This is contradicted by statements that Abubakar made to the EFCC on 30 November 2015 and 16 January 2016 that were accepted as evidence in the Obi trial in Milan (the files are referenced by the judge as “Folder 20, pages 014330-0124332” – see page 172 of December 2018 Judgment of Investigating Judge). The judgment quotes at length from the interview of 16 January 2016.
Abubakar confirmed a) that he was part of the OPL 245 negotiations; b) that Adoke was part of the negotiations; and c) that Abubakar received a financial benefit (some $400 million in ‘consultancy’ fees’). This is strongly suggestive of a business transaction, in which Adoke was involved.
Abubakar stated (spelling and grammar as in original):
“. . . Sometime in 2011, I and Chief Dan Etete met and had a meeting in his house in maitama Abuja (over) in respect to Malabu Oil and Gas. The meeting [with Etete] was about how to solve the issue surrounding (M) Block 245 which we sat down and agreed that I should take this matter and discuss with the then President Dr Goodluck Ebele Jonathan and I would act as a consultant. This we all agreed then I went to the President and I had a meeting with him which he would see how he would resolve this matter for the interest of Nigeria and the interest of everybody, then it was agreed I would be paid a consultancy fee, the amount was not stated, the amount was not established because we did not know how much the oil well would be. That necessitated furthermore, the then Attorney General Bello Adoke was called upon by the president that he set up a meeting in the Attorney General office which he did.
“After several hours meeting between Shell, Eni, Attorney General’s office, myself the meeting was postponed to the next day . . .
“Then the second day, we came to the meeting, when we came, Malabu started their case, Shell and ENI went outside the door to have a private meeting and gave a counter offer of $1.092.040.000 United States Dllars as against $3bn Dollars proposed by Malanu. Then Attorney General came in as an arbiter and ask Malabu and myself to go out and hold a private meeting which we did, we came back to agree the offer of $1.092.040.000 it was agreed that $210M would be deducted to pay signature Bonus to the Federal Government from payment to Malabu. The balance was paid to Malabu. I need to add that Dan Etete was consulted regarding the offer before we (concurred) agreed. Then $400M Four Hundred Million United State Dollars was paid to me as my consultancy fee and payment for properties as follows: (1) One three property in Miatama and (2) two in central area Abuja, (3) Three properties in Lagos in Ikoyi, Lekki and Victoria Garden City VGC (4) A commercial Property Shopping Mall in Dubai, UAE and residential property also in Dubai UAE. . .
“The people in the meeting I can remember there were eleven – 11- White people in Shell, while ENI was represented by about five – 5 – white men. The Attorney General and Permanent Secretary/ Solicitor General by name of Abba Yola. . . ”
4. The Police Report
The Police report cannot be taken seriously.
Just a few examples of its risible claims:
i) “Para 4.20: All the press statements issued by Suraju Olaranwaju are calculated to falsify a relationship between Adoke and Abubakar as he kept emphasizing in the press statements that Adoke and Abubakar ‘worked together’ on the deal which is tantamount to media trial and criminal defamatory in nature.”
On Abubakar’s own admission (see above), he and Adoke were part of the negotiations over OPL 245. They therefore can legitimately be said to have worked together on the deal.
ii) “Para 4.22: That a review of the amended particulars filed by the Federal Republic of Nigeria (Claimant) in the High Court of Justice, Admiralty and Commercial Court against JP Morgan Chase (Defendant) paragraph (62) stated that “the email emanated from Ismail Aliyu, describing himself as representing the Federal Ministry of Finance of the FGN and was addressed to Bayo Osolake an employee of the defendant giving instruction for the transfer of funds”, this is completely contradictory to what Suraju Olarenwaju has been claiming in some of his press statement”.
The email referenced at paragraph 62 was dated 15 July and was an entirely different email to the one at issue, which was sent on 21 June 2021. Para 54D of the Re-Re-ammended particulars states: “On 21st June 2011 Bayo Osolake (as a representative of the Defendant) received an email sent by Attorney General Adoke from the email address ‘email@example.com’, attaching copies of each of the Resolution Agreements referenced at para 30 above. Osolake forwarded that email to Tosin Adewuyi (and other representative of the Defendant) on the same date.”
Very informative summary, Rick, with interesting, helpful links. The Italian criminal court’s judgment is remarkable. Thanks.
Thanks. OPL-245 is a big, complicated case. The stakes are enormous and defendants thus willing to fight and fight dirty. The only hope is to continue presenting the very damning facts clearly and succinctly.
This is a fascinating case. I would be very interested to read more about the Nigerian judiciary’s past treatment of (ostensibly) binding precedent from the ECOWAS Court. Will Justice Nyakothat be compelled to reckon with the ruling that declared Section 24 void for vagueness, or will she be able to side-step the issue and decide the case some other way?
Great questions. I don’t see how she can avoid the section 24 issue. Someone have any thought on how she might?