The Human and Environmental Development Agency (HEDA) as part of ongoing investigation into the controversial $1.1bn OPL 245 deal popularly known as Malabu scandal, has written the Netherlands Minister of Justice, expressing concerns over the moves to settle the matter out of court with Shell.
In a letter to HE Ferdinand Grapperhaus signed by Olanrewaju Suraj, Chairman, HEDA Resource Centre, Nicholas Hildyard (The Corner House) Luca Manes (Re:Common) and Simon Taylor of Global Witness, the organizations informed the Minister about the ongoing trial being faced by Royal Dutch Shell Plc (“RDS”) in relation to the OPL 245 deal.
The prosecution, they said, was the outcome of an investigation by the Milan Prosecutor’s Office, which was initiated as a result of a complaint submitted by three of their organisations.
According to the letter, HEDA and its partners said it was not opposed to out-of-court settlements in cases where the defendant is ineligible for a custodial sentence.
The letter added, “However, any settlement that does not produce a remedy proportionate to the alleged crime could not be seen as just. In this case, RDS and Eni are accused of paying over a billion dollars into a vast bribery scheme to pay off Nigerian officials in exchange for extremely favourable access to one of Nigeria’s most promising oil blocks. The cost to Nigerians of this “smash and-grab raid” on the Nigerian Government (to use the phrase of the UK Crown Prosecution Service) is vast”.
The groups insisted that Shell had not done anything to warrant such out-of-court settlement, adding that a settlement with Shell would “establish an undesirable precedent by signalling that the Dutch justice system is prepared to tolerate corporate recidivism”.
They added that any settlement without a full and clear statement of facts and admission of guilt would be contrary to the interests of open justice.
“An admission of criminality by RDS and Shell Petroleum in this case would be an admission to participation in one of the most egregious bribery schemes in history, a scheme that defrauded Nigeria of billions of dollars,” the letter read.
They however gave conditions for any amicable settlement to take place including admission of guilt and that executives of Shell must be prosecuted.
The letter read further: “It is axiomatic that crime should not pay. Any settlement with RDS and Shell Petroleum must therefore remove any advantage gained by Shell through offenses for which the Prosecutors have sufficient evidence to prosecute.
“What advantage did Shell and Eni gain? Most obviously, they obtained an investment oil and gas field that Shell, in its internal documents at the time of the deal, valued at $3.2 billion (excluding the value of the gas) at an oil price of $80 a barrel, a valuation that would need to be independently assessed.
“But the companies also obtained fiscal terms governing the block that were hugely beneficial. A study which we recently commissioned from oil experts at Resources for Development found that pursuant to these fiscal terms agreed over 2011/2012, the block would only generate $9.8 in government revenue over the lifespan of the project. In comparison, according to the report by Resources for Development, previous fiscal terms agreed in 2003 and 2005 would generate $14.3 billion and $15.6 billion respectively.”
