Adewunmi: EFCC v Babalakin: The travails and triumphs
FOR the discerning minds, the discharge of Bi-Courtney’s Chairman, Dr. Wale Babalakin (SAN) and four others at an Ikeja High Court on February 23 did not come as a surprise going by the apparently political nature of the trial.
The Economic and Financial Crimes Commission (EFCC) went after Babalakin in November 2012, few days after his company’s concession agreement with the Federal Government on the Lagos-Ibadan Expressway reconstruction project was terminated and the concessionaire had threatened to go to court.
It appeared one sure way to stop the businessman was to give him a bad name and hang him. In every David and Goliath situation, one would expect the media to stand by the weak against the strong, but the situation was different in this case. The media appeared to have been swept along on a wave of hysteria orchestrated by Babalakin’s persecutors, to the extent that judges handling the case were constantly under vicious attacks in some section of the media.
The development left most people wondering whatever happened to the Universal Declaration of Human Rights, Article 11, which states: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”
In this case, Babalakin had to be guilty until proven innocent. The EFCC, encouraged by a ‘lynch mob’ did everything to cow the businessman who has been a veteran of many wars of attrition. Even when Babalakin was on admission at the Lagos University Teaching Hospital (LUTH), Idi-Araba, several EFCC operatives kept watch over him on the pretence that he might want to evade prosecution. Not satisfied with that, they declared him wanted on print and electronic media while he was still under their close watch.
During the late General Sani Abacha’s regime, Babalakin was detained for more than 23 months on trumped-up charges instigated by the dictator who allegedly had an eye on some of the properties of the businessman.
In the latest case, after considering whether or not the EFCC can prosecute a defendant in a State High Court without valid fiat, whether former Delta State governor, James Onanefe Ibori, was a public officer, whether two prosecuting authorities can jointly sign a charge, and whether the charge on the surface contains sufficient information to meet the mandatory requirement of Section 36, Sub-Section 6a of the 1999 Constitution as amended, Justice Lateef Lawal-Akapo discharged Babalakin and the other accused persons of an alleged N4.7 billion fraud preferred against them by the anti-graft agency.
The EFCC had slammed a 27-count charge bordering on money laundering on Babalakin and two of his companies – Stabilini Visinoni and Bi-Courtney Limited – as well as the Managing Director, Renix Nigeria Limited, Mr. Alex Okoh. They were accused of allegedly laundering the sum of N4.7 billion for James Ibori.
It is interesting to note, however, that the court indicated in its ruling that there was no basis for the offences for which they were charged.
For those of us who have been following Babalakin’s ordeal closely, the catalyst, which was the failure of the Lagos-Ibadan Expressway project, was not even blamed on the businessman as we have learnt in the 2011 annual report of the Infrastructure Concession Regulatory Commission (ICRC).
In the report delivered to President Goodluck Jonathan by Chief Ernest Shonekan, who was head of ICRC then, possible reasons that led to the failure of the Lagos-Ibadan Expressway Concession were identified in line with Bi-Courtney’s allegations.
Bi-Courtney won the concession to reconstruct, expand and modernise the 34-year-old 105 km expressway under a Build, Operate and Transfer (DBOT) arrangement in 2009. But the concession agreement was abruptly revoked by the Federal Government on November 19, 2012, over claims that the company breached the terms of the agreement with regard to the duration of reconstruction works.
The ICRC, however, noted in its report that the implementation of the project was delayed due to various issues that were not addressed by the government.
While exonerating Bi-Courtney of blames for the project delay, ICRC identified some of the issues as approval for the design of the road, securing the Right of Way, financial model and environmental and social impact assessment.
On approval for the design of the road, the report indicates that Clause 6.1 of the concession agreement identified the concessionaire as responsible for the preparation of the preliminary design for the grantor’s review and approval.
In line with Bi-Courtney’s claim, the report says that approval for a final design was granted on May 10, 2011, two years after the concession agreement was signed.
Amid the controversy over the termination of the concession agreement, Bi-Courtney had insisted that principal officials of the Federal Ministry of Works deliberately caused the delay in executing the concession. The firm claimed that the Minister of Works, Arc. Mike Onolememen and the Minister of State in the ministry, Alhaji Bashir Yuguda, were responsible for the delay in executing the concession.
In an advertorial published in some national dailies, the firm accused the duo of Onolememen and Yuguda of “demonstrably and maliciously” delaying the project.
It also accused the Ministry of Works of initially delaying the project, albeit inadvertently, “due to its weak technical capacity”.
According to the company, the ministry delayed the design process, which should have taken four months to complete, for 18 months, between September 2009 and May 2011.
It also noted that it alerted the ministry about the observation of its international partners on the need to amend the agreement to meet international standards in August 2011 but received no response from the ministry until April 2012.
It further observed that during this period, Bi-Courtney was advised by the ministry not to do any serious works on the road rather than “palliatives”.
According to the company, the amendment process eventually commenced in May 2012, only for the Ministry of Works to appoint a Transaction Adviser, a move Bi-Courtney said it immediately condemned, having “foresaw it as introducing new rules, which are designed to frustrate the contract”.
It said a renegotiation roadmap was eventually agreed between it and the Ministry in July 2012, after which a meeting was scheduled for August 2012 to enable the two parties to agree on the programme of works. This was, however, overruled by the presidential directive, same month, that Bi-Courtney should revert to the old agreement.
Consequent upon this, the company said it contracted Messrs. Borini Prono to commence major works on September 23, 2012, and this was followed by widely reported commendations from the Ministry of the quality and pace of work.
That was, however, followed by the cancellation of the concession by the ministry of works, on November 19, 2012.
The facts contained in Bi-Courtney’s advertorial then had shown that delay of the works directly attributable to the Ministry of Works was two years, 10 months, while another six months delay was attributable to the rains out of a concession period of three years, six months.
In my belief, if there is anything Babalakin is to be admired for, it is his courage and his faith in the rule of law which has always delivered him from his persecutors.
In other climes, men like Babalakin, who have the potential to develop their nation’s economies, are given all the necessary support to flourish. But, in Nigeria, what such entrepreneurs often get in return for their bravery, nationalism, patriotism, and sacrifice is persecution. The people even have a name for it: Pull-Him-Down (PHD) syndrome.
• Adewunmi sent this piece from Lagos.