Chinese loan and Nigeria’s sovereignty

Aug 12, 2020

In the past few days, the public space has been awash with comments and outrage on the hearings at the Federal House of Representatives concerning the Chinese loan agreements Nigeria entered into to the tune of $500 million for the part-financing of its rail projects said to be valued at about $849 million.

This is borne out of the fact that the House of Representatives Committee raised the alarm over the alleged waiver of Nigeria’s sovereignty. These hearings in which the Minister of Transportation, Chibuike Amaechi was invited, laid bare some perceived inconsistencies in public debt procurement process in Nigeria with noticeable gaps. For the rail project loan in question, issues have arisen concerning the drafting of the agreement, the processing of the documents as well as the involvement of the Minister of Finance and the Attorney-General of the Federation respectively.

These gaping questions become very disturbing when the lender in question here is China, which has been associated with opaqueness in granting loans to countries in global context.
 
In investigating the processing of the $500 million Chinese loan from the Export-Import Bank of China, the Federal House of Representatives, as part of its oversight function, discovered that the loan agreement contained a clause in which Nigeria’s sovereignty was supposedly traded off. According to reports, this discovery was made because the agreement entered into, was written in Mandarin, the official form of the Chinese language with the Nigerian officials signing without understanding the full content of the loan document. If that is the case, it strengthens the narrative of the reported opaqueness of typical Chinese loan agreements.

The controversial clause in this loan case, states that, “the borrower hereby irrevocably waives any immunity on the grounds of sovereign or otherwise for itself or its property in connection with any arbitration proceeding pursuant to Article 8(5), thereof with the enforcement of any arbitral award pursuant thereto, except for the military assets and diplomatic assets.” The question that arises here is whether there is no law that requires that the terms and conditions of loan agreements be submitted to the National Assembly for approval. In response to this raging controversies, the Chinese Foreign Ministry denied that China had any clause in the contract ceding Nigeria’s sovereignty and that it followed its “five-no” approach in loan agreements one of which is “no imposition of our will on African countries” and that it gives full consideration to debt sustainability.  

The response of China on this issue notwithstanding, the history of China’s relations with different countries on loan agreements largely leaves a sour taste in the mouth. China has been severally accused of undertaking a global colonisation policy with its debt-trap diplomacy. For most of the countries that China has extended loan facilities to, there has been tales of woe and lamentations. Chinese loans to Sri Lanka, Papua New Guinea, Maldives, Pakistan, Malaysia, Mongolia and Republic of Kazakhstan, among others have been followed with cases of default and takeover of these countries’ assets by China.

These loans are usually given out with very attractive conditions and without thorough due diligence for which these countries find it difficult to resist. What follows is a loan default and then the taking over of major assets in the borrowing countries with these takeovers not limited to the projects for which the loan is procured. By its “Belt and Road” Initiative, China targets countries that have some form of natural resources or something to offer which may not necessarily be cash. One commonality in these assets is that all the infrastructure of roads, ports, highways and airports, among others, financed with these loans all connect to China in what has been aptly described as the “new silk road.” Opaqueness has been one clear characteristic of Chinese loans across many jurisdictions globally. In Africa, the story is not different.

China appears to have taken a strategic position on the continent by willingly donating a mighty Secretariat to the African Union Commission in Addis Ababa, Ethiopia, probably as a good launching pad to gain easy access to virtually all African countries in pursuit of its global expansionist policy. China has extended irresistible loans to many African countries with Angola, an oil rich nation, having the largest Chinese loan exposure on the continent with a portfolio of about $25 billion. This is followed in that order by Ethiopia, Kenya, Republic of Congo, Sudan, Zambia, Cameroun, Nigeria, Ghana and the Democratic Republic of Congo, (DRC).

Most of these loan transactions have run into some trouble with Zambia representing the worst case in Africa where China has taken over their National Power Corporation and the Broadcasting Corporation due to loan default. It is little wonder why these countries wouldn’t default given that the loans are largely concessionary with lots of suspected undercover dealings and perks in favour of African government officials in form of huge kickbacks, which largely do not go through the banking system. Many have dubbed this as China’s new colonial strategy, which it executes by first encouraging indebtedness on very concessionary terms; taking over strategic assets or the commanding heights of the economy on default. The focus is largely on very corrupt countries with very weak governance structures. Given these antecedents, there is a great need for these issues to be addressed in the Forum on China-Africa Cooperation (FOCAC) meetings. 

The Debt Management Office (DMO)’s response on this raging issue has also left much to be desired. It addressed the pedestrian issue of how little China’s $3.121 billion loan exposure to Nigeria is, that it represents only 11.28% of the total external debt stock of $27.67 billion or 3.94% of overall total public debt burden of $79.303 billion. By this submission, the DMO stated that China is not a major source of funding for the Nigerian government. The DMO highlighted the fact that the loan is a concession of 20-year tenor with a seven-year moratorium. The DMO prided itself that its law, the Debt Management Office Establishment (ETC) Act 2003 as well as Section 41 (1a) of the Fiscal Responsibility Act 2007 were duly followed in the loan agreements in question.

However, the issue is really not in the quantum of these Chinese loans but on the commitments made by our government officials. The DMO response did not guarantee whether transparency was followed in the negotiating process –particularly with reported incidences of corruption in other jurisdictions. It also did not clearly state whether the unpalatable experiences of other countries in dealing with China on borrowing were factored in nor did it address the issue of sovereignty or whether the agreement was written in Mandarin or not nor how the repayment will be made from proceeds from the projects over the 20-year loan period. How come the National Assembly, which should have approved the loan in the first place is just getting to know about this sovereignty clause after the fact? The DMO needs to provide further explanations on these issues.
 
On the sovereignty issue, it needs to be noted that, the controversial clause would only come into effect when there is a case of default. It needs to be put in proper perspective that for an economic or commercial transaction, Nigeria would find it difficult to plead its sovereignty in the event of default and would thus need to go for arbitration. Hence the hue and cry on loss of sovereignty for a purely commercial transaction may have been misplaced. This, however, differs in the case of political relations where the ceding of sovereignty is not tolerable. It is proper to understand that for an economic or commercial transaction such as this, the key issue is to avoid a loan default else the case of arbitration cannot be avoided.

The critical point to make is whether Nigeria is safe with this preponderance of loans, particularly from China, given our track record in public debt management since independence.
 
It can be recalled that Nigeria had to exit the Paris Club debt during the Obasanjo administration by paying off $12 billion at a go and getting a relief of $18 billion totalling a reduction of our public debt by $30 billion. Are we sure there would not be a default again given our unenviable track record in loan repayment, particularly with the global oil market highly volatile and foreign exchange earnings dwindling. Corruption or kickbacks by government officials across the continent indicate that the actual investments in projects actually fall far short of negotiated loan amounts. This is a cause of worry concerning future default on these Chinese loans. This is where the sovereignty issue becomes obviously threatened.
 
Finally, does Nigeria actually need these many loans it has been taking particularly in the past five years since the inception of the Buhari administration in May 2015?
 
This government is known to have more than doubled the size of the public debt from about N12.118 trillion in May 2015 to N27.401 trillion in 2019 and in excess of N30 trillion at the moment. With the new borrowings of $3.4 billion from the IMF, $750 million from the World Bank, N162.5 billion Sukuk bond and another $1.5 billion from the World Bank, the Buhari administration is setting an inglorious record of ensuring that the future of the present and future generations is thoroughly mortgaged with dire consequences for the ordinary man. Currently, the cost of governance hasn’t been reduced and many stakeholders such as the Nigerian Labour Congress (NLC), the Trade Union Congress and many other stakeholders have called on the Buhari administration to make full disclosure of all the loans it had obtained. A stitch in time saves nine. The House of Representatives as well as the Senate should dig deep into these vexatious issues concerning Nigeria’s loans so that the current race on the road to economic and political perdition can be reversed.
 
1 USD = 386.594 NGN
 
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