Italian Judiciary Punishes Prosecutor for Wrongdoing in Nigeria’s OPL 245 Case

* Ranking US lawmakers want case revisited, finger ex-president Jonathan

Emmanuel Addeh in Abuja

The Italian prosecutor involved in the trial of Shell, Eni and others, in the controversial Oil Prospecting Licence (OPL) 245 case, Fabio De Pasquale, has been demoted by the country’s Superior Council of the Judiciary (CSM) for his role in the proceedings.
An Italian newspaper, Ilgiorno, reported that De Pasquale was demoted for “lack of impartiality and fairness” in the way he handled the prosecution at the Court of Milan.

Recall that in 2021, a former Minister of Justice and Attorney General of the Federation, Mohammed Adoke (SAN), had petitioned Italy’s Minister of Justice over the conduct of De Pasquale.
Adoke, through his lawyers, accused the prosecutors of unlawful acts of intimidation/threat to life, forgery of documents/evidence intended for unlawful interference with the administration and perversion of the course of justice.
The Italian was also said to have hidden critical evidence that would have exonerated the defendants and is facing a separate hearing over the allegation.
Adoke said the prosecutors acted “maliciously and unprofessionally” to his detriment despite the fact that he was not a direct party to the criminal prosecution and was not on trial before the Milanese court.

Eventually, the court discharged all persons and companies accused of fraud and bribery in the transaction.
De Pasquale, who was assistant prosecutor at the Court of Milan with semi-managerial prosecuting functions, was rejected by 23 of the 27 members of the CSM, including its Vice President, Fabio Pinelli, while four members abstained from voting.

 “It is therefore demonstrated that De Pasquale lacks the prerequisites of impartiality and balance, having repeatedly exercised jurisdiction in a manner that was neither objective nor fair with respect to the parties as well as without a sense of proportion and without moderation,” the CSM resolved.
The judges opined that De Pasquale’s style projected “a negative prognostic judgment” on the possession of the prerequisites of impartiality and balance also for the purposes of confirmation in the magistrate in semi-managerial functions.

De Pasquale is on trial in Brescia for omission of official documents while disciplinary proceedings and an official transfer procedure due to “environmental incompatibility” have been opened against him at the CSM. Both proceedings against him are still ongoing.
By implication, the failure to confirm De Pasquale by the CSM means he will lose his role as deputy prosecutor and will return to being a simple substitute and will not be able to apply for further management positions in the future.
The judges of the Milan court said it was “incomprehensible” that the public prosecutor chose “not to file among the proceedings a document which contains extraordinary elements in favour of the defendants”.

De Pasquale who prides himself as an anti-corruption hunter had been looking to get Eni convicted over allegations of corporate fraud. The OPL 245 case provided him an opportunity to prosecute what transparency campaigners described as “the biggest corporate fraud in history”.
Adoke was not in trial in Italy, but the Economic and Financial Crimes Commission (EFCC), filed several cases against him in Nigeria and his name was constantly mentioned in the Milan court, although the court did not make any adverse pronouncement against him in its verdict.
One of the cases filed against Adoke was that he collected a $2 million bribe from the $1.1 billion paid to Malabu and bought a property in Abuja, an allegation he denied and for hich he has been cleared.
But Adoke alleged that the prosecutor deliberately concealed his failed N300 million mortgage transaction with Unity Bank from the Milan court just to create the impression that it was a bribe.

He also alleged that an email purportedly sent by him from the account of a property company mentioned in the OPL 245 payments was forged, stressing that a phone conversation was stage-managed to implicate him.

Meanwhile, about two years after the accused were discharged and acquitted, two ranking US congresswomen yesterday petitioned the Department of Justice (DOJ), on the need to reopen the investigation of Shell and Eni, for their alleged roles in the case they said violated America’s Foreign Corrupt Practices Act.

According to the US Committee on Financial Services, Congresswoman Maxine Waters (D-CA), the top Democrat on the House Financial Services Committee and Congresswoman Joyce Beatty (D-OH), the Ranking Member of the Subcommittee on National Security, Illicit Finance, and International Financial Institutions are now calling for the reopening the probe.

Waters and Beatty said the alleged bribery pose serious disadvantage to the Nigerian people and its economy, while the companies involved continue to profit.

In the letter sighted by THISDAY, the petitioners urged the DOJ to step in immediately to further demonstrate its commitment to combatting corruption and corporate crime across the globe.

“We write to urge the DOJ to reopen a Foreign Corrupt Practices Act (FCPA) investigation into Shell and Eni regarding their 2011 purchase of the rights to Oil Prospecting License (OPL) 245, one of Nigeria’s most lucrative oilfields.

“Available evidence implicates both companies in a scheme that resulted in the payment of $1.1 billion in bribes to Nigerian government officials, including then President Goodluck Jonathan. Shell and Eni, both registered with the US Securities and Exchange Commission (SEC), continue to profit from the deal in violation of the FCPA.

“Allegations of corruption surrounding OPL 245 began in 1998, when Dan Etete, a convicted money launderer and Nigeria’s former oil minister during the military dictatorship of General Sani Abacha, awarded the OPL 245 license to Malabu Oil & Gas, a company whose principal shareholders were revealed to be Etete himself and the son of General Abacha.

“The rights to OPL 245 continued to be marred with corruption, and in 2000, Malabu’s share registry was changed to reflect a 50 per cent shareholding by Pecos Energy, a company secretly controlled by then-President Obasanjo and his Vice President. Malabu’s license was revoked in 2001 but restored in 2006, with evidence suggesting that bribes paid to then-Attorney General, Bayo Ojo played a key role in that decision.

“Shell and Eni then purchased the license from Malabu in 2011 for $1.3 billion with knowledge that a portion of the proceeds would be used to bribe numerous Nigerian officials, including then President Goodluck Jonathan. Hundreds of millions of dollars passed through various Nigerian shell companies linked to Aliyu Abubakar, a businessman known in his country as “Mr. Corruption.

“Then President Goodluck Jonathan was said to have pocketed some $200 million from the sale, and the former Attorney General involved in the 2006 reinstatement of Malabu’s license also purportedly received a sizeable payout. Other funds would later be traced to the purchase of real estate in the US, Dubai, Brazil, and Switzerland, as well as luxury vehicles and gems,” the letter stated.

It added that in 2013, there was sufficient evidence for the Federal Bureau of Investigation (FBI) and the DOJ to open a money laundering investigation into the deal, which was followed by an FCPA investigation.

In 2019, the DOJit said,notified Eni that the US had closed the inquiries in light of Italy’s own prosecution of the case, yet it noted that the file could be reopened if circumstances changed.

“In a decision that has since been widely scrutinized due to concerns of impropriety and political interference, an Italian court subsequently acquitted Shell and Eni in 2021 and 2022, respectively.

“Soon after, a review conducted by US and German representatives to the Organisation for Economic Co-operation and Development (OECD) Working Group on Bribery found Italy to be noncompliant with the legal obligations of the Convention. The Working Group cited this case, in particular, in its judgment, expressing ‘extreme concern’ over the court’s ‘systematic rejection’ of evidence.

“Shell and Eni continue to profit from their exploitation of the OPL 245 deal, and Eni has contested the Nigerian government’s decision to delay the conversion of their Oil Prospecting License to an Oil Mining License for OPL 245.

“Eni’s legal challenge, filed at the International Centre for Settlement of Investor Disputes (ICSID) and based upon the corruptly acquired prospecting license and related Resolution Agreement, as well as the use of the original contract in arbitration proceedings, constitutes further violation of the FCPA.

“The ICSID proceedings are currently suspended until May 23, 2024, with the agreement of the parties, suggesting that a settlement is being negotiated. Allegations have been made in the Nigerian press of further corruption relating to a settlement.

“The United States has consistently demonstrated global leadership in the fight against foreign bribery, with the FCPA serving as model legislation for countries around the world.

“The reopening of this case would further illustrate the US’ commitment to ‘aggressively pursue foreign bribery cases,’ as stated in the US strategy on countering corruption and reaffirm its pledge to fully implement the OECD Anti-Bribery Convention.

“We urge you to leverage this potent anti-corruption law to address the issues in this case and to send a powerful message that the United States stands vigilant in its pursuit of corporate crime around the globe,” the letter to DOJ stated.