Nigeria OPL 245: Dutch authority issue notice to prosecute Royal Dutch Shell for criminal charges

NETHERLANDS – The Dutch authority has issued a final notice of its intention to prosecute Royal Dutch Shell for criminal charges over Oil Prospecting Licence, OPL 245 oil and gas field in Nigeria relative to the 2011 agreement between Nigerian officials and the company.

Shell said it was informed of the development by the Dutch Public Prosecutor’s Office (DPP) that they are nearing the conclusion of their investigation and consequently preparing to prosecute Royal Dutch Shell plc over the matter.

“We have been informed by the Dutch Public Prosecutor’s Office (DPP) that they are nearing the conclusion of their investigation and are preparing to prosecute Royal Dutch Shell plc for criminal charges directly or indirectly related to the 2011 settlement of disputes over Oil Prospecting License 245 (OPL 245) in Nigeria”, Shell said in a statement.

Earlier this year, four Non-Governmental Organisations (NGOs) wrote Minister of Justice of The Netherlands to warn against out-of-court settlement in the case instituted by The Netherlands government against Royal Dutch Shell Plc (RDS) and Shell Petroleum over the acquisition of the OPC 245 oil and gas field in Nigeria.

They argued that they considered themselves as stakeholders in the case having submitted a complaint to the Prosecutor’s Office in The Netherlands requesting criminal investigation of RDS, Shell and Shell executives for offences under Dutch law relating to the deal.

“We held that this (out-of-court settlement) would not be in the public interest unless stringent conditions are attached”, the letter, dated January 9, 2019 and signed by Nicholas Hildyard for The Corner House, Luca Manes for Re: Common, Olanrewaju Suraju for HEDA and Simon Taylor for Global Witness, said. The groups explained that whereas, in principle, they were not opposed to out-of-court settlements in cases where the defendant is ineligible for a custodian sentence, any settlement that does not produce a remedy proportionate to the alleged crime could not be seen as just.

They listed three grounds to justify their opposition to out-of-court settlement  for RDS, Shell and Shell executives on the OPL 245 oil and gas field  case as follows:

The defendants had vigorously denied any criminality, and consequently any settlement would establish a precedent that the Dutch system is prepared to tolerate corporate recidivism and any settlement without a full and clear statement of facts and admission of guilt would be contrary to the interests of open justice.

The groups stressed that if, notwithstanding their concerns, The Netherlands authorities deemed a settlement to be in the public interest, it would be unacceptable to allow the companies to continue to profit from the alleged corruption in the OPL 245 deal. According to them, should the Dutch Prosecutor have sufficient evidence, they would expect those prosecutions to go to trial, even if a settlement option  were available.

The bone of contention was the agreement which was made on April 29, 2011. It is made up of three separates resolution agreements. The first, titled “BLOCK 245 MALABU RESOLUTION AGREEMENT” was signed between representatives of the federal government and those of Malabu, which was represented during the discussions by a former petroleum minister, Dan Etete.

The second agreement, titled “BLOCK 245 RESOLUTION AGREEMENT” was between the Nigerian government and officials of Shell and Eni/AGIP; while the third agreement, titled “BLOCK 245 SNUD RESOLUTION AGREEMENT”, was signed by officials of the Nigerian government and Shell.

Former attorney general of the federation, Mohammed Adoke and former petroleum minister, Diezani Alison-Madueke signed all the agreements on behalf of the federal government.