That Corruption Infects the Italian Judiciary Is Now Undeniable

In March 2021, a Milan trial court acquitted Italian oil giant ENI, its partner Royal Dutch Shell, and numerous individuals of bribing Nigerian President Goodluck Jonathan and pals to secure the rights to the lucrative offshore oil field denominated OPL-245. The evidence of bribery was overwhelming, including internal Shell e-mails describing the scheme and the testimony of an ENI official confirming his bosses were fully aware of it. Suspicions that someone had “gotten” to the judges immediately arose stoked by revelations of close ties between the presiding judge and ENI’s senior counsel.

Any doubt that the verdict was tainted was put to rest when the court published its opinion justifying it. As the attached analysis by the British, Italian, and Nigerian NGOs that have pushed the case shows, the court’s “reasoning” was laughable. Two examples of many. The court wrote off the then oil minister’s sale of OPL-245 rights to a company he secretly owned as a trifle because neither he nor the government officials bribed to approve the sale objected. Equally ridiculous, the court found that a Shell briefing note reporting that part of the bribe would be in the form of political contributions simply recounted a rumor then circulating.

Between the strength of the evidence the prosecution presented and the court’s flimsy if not bizarre reasoning dismissing it, the expectation was that the acquittal would easily and quickly be overturned on appeal. That hope is not to be however.  Last week the Italian prosecutors assigned to handle the appeal announced they were withdrawing it. 

Thus ENI, Shell, and the 13 individuals named as accomplices in the payment of a $1.1 billion bribe stand exonerated. And it now clear that the rot in the Italian judiciary reaches into its once revered prosecution service.

Nor is the damage from the rot limited to Italy. Thanks to the doctrine of ne bis in idem (double jeopardy in American law), a Dutch investigation of Shell’s role had to be dropped (here).  

The last hope for justice now lies with the Nigerian judiciary. Ne bid in idem only bars EU countries from pursuing a case. A Nigerian investigation of the companies and their accomplices is underway. It is critical it continue and that the international anticorruption community do all it can to support it given what has happened in Italy.

Moreover, as this blog has urged, it is critical too that the OECD hold Italy to account for its failure to live up to its obligations to sanction Italian companies that bribe foreign officials. The ENI-Shell case must be an outlier not a precedent.

Nigerian Human Rights NGO Denounces Prosecution of Corruption Whistleblower Olanrewaju Suraju

This blog has several times reported on Nigeria’s prosecution of corruption whistleblower Olanrewaju Suraju (here, here, here). His “crime:” Helping expose massive bribery in the nation’s oil sector.

Fortunately, for both Mr. Suarju and the citizens of Nigeria, Nigerian civil society is standing behind him, demanding the farcical prosecution cease. Below is the most recent show of support.

Legal Defence & Assistance Project or LEDAP, a prominent Nigerian human rights NGO denounces the prosecution and calls not only for the government to immediately drop the charges against Mr. Suraju but investigate those behind this perversion of course of justice.

LEDAP condemns the prosecution of anticorruption crusader, Mr. Olanrewaju Suraju, Calls for investigation of Mr. Suraju’s corruption allegations in the Malabu Oil Scam.

LEDAP strongly condemns the prosecution of Mr. Olanrewaju Suraju, the chairman of the Human and Environmental Development Agenda (HEDA) for his allegations of corruption against the former Attorney General of the Federation, Mohammed Adoke, in the Malabu oil block allocation scam. Mr. Suraju has consistently made public massive bribery and abuse of power against Mr. Adoke and other foreign companies, for which some are currently facing criminal charges in Italy.  Rather than investigate the allegations raised in Mr. Suraju’s many petitions, the Attorney General has elected to prosecute him, undermining the so-called anti-corruption agenda of the regime.

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Will the Nigerian Judiciary Stand Up for the Rule of Law and Dismiss the Suraju Case?

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.

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Corruption’s War on the Law

“Corruption’s War on the Law” is the headline on an article Project Syndicate just published. There former French magistrate and corruption fighter Eva Joly recounts the fate of those who have dared to confront powerful networks of corrupt officials and those who corrupt them.  Maltese investigative journalist Daphne Caruana Galizia was murdered by accomplices of those she was investigating. So was Rwandan anti-corruption lawyer Gustave Makonene. So too was Brazilian anticorruption activist Marcelo Miguel D’Elia.

After a second attempt on his life, Nuhu Ribadu, first chair of Nigeria’s Economic and Financial Crimes Commission, the country’s premier anticorruption agency, famously remarked:

“When you fight corruption, it fights back.”

In her article, Mme. Joly, who received numerous threats for investigating and ultimately convicting senior French officials for corruption, explains that violence is just one way corruption “fights back.”  The most recent head of Nigeria’s EFCC was arrested and detained on trumped up charges of corruption. Ibrahim Magu has been suspended from office pending further proceedings, proceedings unlikely to be held this century.

At the same, Nigerian anticorruption activist Lanre Suraju is, as this blog reported last week, being charged with “cyberstalking” for circulating documents from a court case that implicate associates of the current Attorney General in a the massive OPL-245 corruption scandal. This form of intimidation, which Nigerians have dubbed “lawfare,” has now been exported to Europe. Italian prosecutors are being subjected to both criminal charges and administrative action for having the nerve to prosecute one of Italy’s largest companies for foreign bribery (here).

President Biden has declared the global fight against corruption to be a national priority, and he will shortly host a democracy summit where Brazil, Italy, Malta, Nigeria, and Rwanda will be represented at the highest level. Might he remind them which side of the fight they should be on?

Letter to Nigerian Attorney General Malami from Civil Society: Stop Harassing Anticorruption Activist

Civil society organizations are poised to write Nigerian Attorney General Abubakar Malami asking he dismiss criminal charges against long-time Nigerian anticorruption activist Olanrewaju Suraju. His crime? Circulating documents implicating an associate of the Attorney General in the alleged payment of $1 billion by oil giants Royal Dutch Shell and ENI in return for rights OPL-245, Nigeria’s most lucrative offshore oil block.  

Not only is a criminal indictment for Suraju’s conduct absurd on its face, the Community Court of Justice for the Economic Community of West African States, whose decisions are binding on Nigeria, has declared the cyberstalking law under which he is being charged in violation of the African Peoples and Human Rights Charter.  

The text of the letter is below. Concerned NGOs and individuals are invited to add their names. Use the “Contact” function at the top of the page. Alternatively, letters supporting Nigerian activists’ freedom to urge that those responsible for corruption be brought to justice can be sent to Nigerian President Muhammadu Buhari through info@statehouse.gov.ng

Dear Attorney-General Abubakar Malami:

Our attention has been drawn to press reports of an indictment, approved by your office, against Olanrewaju Suraju, chair of the anti-corruption and human right group HEDA, for alleged cyberstalking.[1]

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Is Italy Backtracking on the Fight Against Foreign Bribery?

Press reports, informed commentary, and the recent acquittal of ENI and Royal Dutch Shell despite overwhelming evidence they bribed Nigerian officials provide alarming evidence that Italy’s commitment to curbing foreign bribery is waning.

That commitment was never that strong to begin with. Although bound by the OECD Antibribery Convention to investigate and prosecute foreign bribery cases, in 2011 the OECD Working Group on Bribery found Italy had done little to comply. In the decade since ratifying the convention, only a few dozen cases had been brought, almost all against individuals for small-time bribery, and most had ended in acquittals. This dismal record was not surprising, the Working Group observed, given no one had been trained on how to investigate foreign bribery cases, and no public prosecutor’s office specialized in such cases.

The one bright spot the Working Group found was the Milan office of the public prosecutor.  It had aggressively pursued foreign bribery cases, opening by far the lion’s share of cases, including all those where a corporation was involved. Its future is now in doubt.

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