By Kennedy Mbele
Finance and development experts are trying hard to rationalise why the African Finance Corporation and Huawei Technologies Company Ltd have found themselves mired in a controversy arising from a concession agreement for the modernisation of the Nigeria Customs Service, NCS.
Alleged bypassing of due process by these two organisations has thrown the E-Customs project into a cul-de-sac. With the recourse to litigation by the parties involved in the project, it is now coming to light that President Muhammadu Buhari may have overrode in error an approval granted by the Federal Executive Council, FEC, when he presided in September 2020.
On Wednesday, September 2, 2020, the FEC ratified the modernization project with specific directives to implement full automation of all the Nigeria Custom’s business processes and procedures through the development and implementation of a robust and secure ICT platform.
This entails complete systems integration with the current ICT platform; development and implementation of modern customs border stations, airports and marine posts.
The Minister of Finance, Budget and National Planning, Mrs. Zainab Ahmed, who presented the memo approving the E-Customs project, explained that the concession was awarded in favour of Messrs E. Customs HC Projects Nigeria Limited for a concessionary period of 20 years. It was projected that government will earn about $176 billion during the period.
This lofty vision is now threatened by alleged scheme to stop the approved concessionaire, Messrs E. Customs HC Project Limited, and replace it will an entity allegedly registered at the Corporate Affairs Commission on April 5, 2022, just two months ago.
So, how did the NCS and the Infrastructure Concession Regulatory Commission, ICRC, convince Buhari to replace one company with another outside any known law in Nigeria?
The question was captured in a letter dated April 25, 2022, by the Managing Director of Bionica Technologies, Alhaji Umar Tanko-Kuta, to the ICRC: “Following the emergence of a document which is neither a product of negotiation of the parties during their approved negotiation nor a document that was officially approved by the FEC, a meeting was scheduled at the instance of the Acting Director General of the ICRC, JAM Ohiani, inviting stakeholders to discuss the E-Customs Project.
“We observed that the key stakeholders of the E-Customs Project which is a Presidential Initiative on Customs Modernization were not present at the meeting supposedly of stakeholders.
“Our enquiry at the meeting revealed that the Federal Ministry of Finance, Budget and National Planning, the custodian of the approved Concession Agreement as well as E-Customs HC Ltd, the approved Concessionaire of this project were not invited. The issued directives of the Acting Director General of the ICRC was not intended to authenticate the legal copy of the Concession Agreement that was approved in September 2020 by FEC. Rather, the directives were geared towards validating the tampered document.
“Furthermore, we are concerned that meetings styled ‘retreats’ took place on weekends in a hotel are being presented as validly constituted negotiations of parties. The concessionaire’s legal team, upon objecting to the voidable nature of the exercise, was intimidated, bullied and harassed.
“Despite the issues raised as regards the conduct of Dr. Jobson Ewalefoh of ICRC in our letter dated 12th April, 2022, he was given the platform to make a presentation about the E-Customs Project which indicates that the ICRC has abandoned their statutory mandate as independent regulator and have assumed the contrived role of transaction adviser to the parties.
“As we stated in our letter to Nigeria Customs Service dated 31st March, 2022, the only lawful draft Concession Agreement is the one that was negotiated between the Federal Government team [led by the Assistant Comptroller General of Customs B. Aber and the late Mr Tampi Kupsar Wudapba, together with Government’s transaction advisory team (legal, technical and financial advisers) and officials of the Nigerian Customs Service], the Huawei Consortium [led by Mr. Umar Tanko-Kuta of Bionica Technologies WA Ltd together with the Consortium’s legal, financial and technical advisers] and the lenders AFC and First Bank) between October 2018 and May 2019.
“The product of the approved negotiations was the Draft Concession Agreement that was submitted to the Federal Ministry of Finance, Budget and National Planning and vetted by the Federal Ministry of Justice in December 2019 and approved by FEC in September 2020. Any other version that we are requested to comment on is ultra vires as it does not represent the negotiated terms and conditions of the parties as approved by FEC.”
Copies of the letter were sent to the Secretary to the Government of the Federation and the Minister for Finance, Budget and National Planning.
Rather than address issues raised above, the ICRC, two days later, dispatched an “Update on the e-custom project”, in what now appears to be a distortion of fact, detailing series of meetings held to ratify an agreement and the fact that “the AGF reviewed and finalized the concession agreements as directed by the FEC and conveyed his approval to execute it to the NCS on the 14 of February, 2022.”