It is not that I am enjoying MTN’s legal problems in Nigeria but the idea of bringing in the former US Attorney General Eric Holder to negotiate their punishment (it is legally a fee) is ridiculous. I am tempted to say that this new act of desperation is a betrayal of the Nigerian and South African legal professions and it will help them nothing. It is pitiable for most of us, the local experts, looking in from the side and I wonder why.
To summarise for those who forgot, MTN is a South African Mobile Company, one that makes record profits and by far the largest in Africa. They are in many countries including Iran where they also had bad publicity problems, unrelated to the Nigerian one. I have nothing against them, in my briefings on business in Africa I recommend using their products which are as good as any and I have even less to do with them from a professional viewpoint. I do not act for them, never did and never will in the future, they have wonderful lawyers, I am sure, just look at the mess they find themselves in currently. What happened, as far as we can see from the outside, is that they were given a fair time to register users of their sim cards (probably for counter terrorism reasons, it is standard in many countries, nothing untoward about that) and they failed to do so. Hence they got a fine, I believe X amount of USD for each of their millions of pay-as-you-go unregistered users. They did not, as far as we can see, cancel the sim cards either but they did keep on collecting the money on them in Nigeria, the large West African State. The fine then came in at 3.9 billion USD in a country where Islamic terrorism is a problem. Look at the kidnapping of the hundreds of girls which no one seems to remember today and the defeats the Nigerian Army (a joke) suffered at the hands of Boko Haram. So they have excellent reasons for getting the mobile sim cards sorted, there cannot be any doubts on why this had to be done, really not. South Africa do the same, by the way, you buy a sim card, you must give proof of address and who you are. In law we will say the merits of the case is beyond doubt.
You should not feel sorry for MTN for being slammed with such a large fine, they can afford it and perhaps learn to be less arrogant when operating in other countries. No one in my circles showed any surprise - it was a matter of time before the large multi nationals are brought by extraordinary large fines to the simple comprehension that laws are expected to be followed in Africa. Yes, even here, as I warned in many books, we do have laws and advanced legal systems and they are functioning despite what you read in the popular press. In a place like South Africa, the Bill of Human Rights are working and much more advanced than anything in the USA. And the lawyers just as good and have more academic training and much more experience, especially in things like murder trials (sadly so). We find a UK barrister, writing a book on his “big murder trial” entirely ridiculous, it is not even newsworthy here (sadly so). The advice to multinationals is to get your compliance in order or suffer the logical consequences. Compliance is a simple principle, really, it means if that law says X, then you comply with X. This registering of sim cards is the shining example of compliance, you are expected to register those users, you do so and you have no problems in life. You fail, for whatever reason and I am sure there are many which the MBAs can come up with, all crap in law, then this happens. And now what? There is a lesson here, in what not to do.
MTN has already acted with desperation. When the Nigerian fine came to light, they suspended their stock market trading, their shares dropped like stones in water. That idiocy did not last long, and it recovered somewhat. They also fired a senior director as the public scape goat and now they are again grasping for straws by appointing Eric Holder as chief negotiator. I have to wonder, as I did in other books before, what someone who is not trained in Africa knows about African legal systems and laws? Zero, zilch and as much as I would be lost in New York, and have the guts to admit it, he probably knows nothing and cannot be expected to know anything. So why is he here? I have a feeling this is not about law actually, this is about bringing in the right face and hope it will works out in the end. An insult to the Nigerians! A business strategy designed to fail, again! I really hope that Mr Holder was not approached because he is black, that would be an insult to every African and it is racist to believe you bring a somewhat famous black man to Africa and we will all now listen closely, OMG! In what century do you live?
Let me be clear, the days that you can bring a man like Holder here and we would cave in, is long gone. In fact, it is disturbing to us and I for one would have reacted with much negativity against him simply because he is not an African but an American who happens to be black and I am now expected to be impressed by his presence? Why would I be? It takes more than a skin colour to be African, it is a birth right, something it seems multinational companies don’t get. Americans, I can also tell you, and I speak from years of experience, are not that highly valued in Africa nor liked. They are called “ATMs” in Nigeria. Yep, so it is - they dispense money and it is a word meant to be spoken with contempt. Nigerians are proud people, abused also. If they or even us, as South Africans, try to travel to the USA, we are subjected to many indignities before a visa is very reluctantly issued, you know we are all terrorists and shysters because we are Nigerian or South African. And yes, with some reason, many abuse the system and stay behind, but the failure of the Whitehouse in not deporting such people, now called “undocumented citizens” is not my problem. I say deport, and deport, and deport as we do, we don’t hesitate. Close your borders to anyone wanting to harm you, as we do. That it is not done, because of misguided human rights crap, is not my problem in life and never will be. All I know is that I could not visit my dying wife because I am African and on some “list” having been “seen with unsavoury people.” (Probably lawyers, they are not polite company, I am sure.) It is an insult I am very unlikely to forget and I feel that any American coming to Africa with a superior attitude, should comprehend, you are not welcome or able to “organise” anything here. There is a hatred against the US (which I do not share) on this continent at ground level which you cannot believe. Bringing in Mr Holder, is an affront to every Nigerian I know and I know many, they tell me this in private. It will not work. South Africans and South African Companies are seen as arrogant and haughty as always will, we are all that. We are the Super Power here and we know it. A group like Boko Haram would have been wiped out years ago if they tried their luck here. We are not weak or humble people.
What MTN should have done was to get their compliance in order in the first place. That is, to abide by the local laws, it is expected from a responsible multinational. Then to have paid the fine, taken the losses, learned something because what is happening now? The falling Rand, thank you Nene-Gate, is weakening so much against the USD that whatever Mr Holder gets done (if anything, LOL) will be nullified when it comes to paying and they will, in the end, pay up (a reduced fee). They cannot win this fight, it is stupid to throw good money after bad and think no one sees the shenanigans. I guarantee you, because I am told by mates, that MTN is now going to be hammered, with all the other multinationals, in every African country until their get their act sorted. Africa is not the Wild West anymore; it is starting to lift its head.
Koos Kotze is a former member of the South African Police Force. He served between 1985 and 1991 primarily as a sergeant in the Pretoria Flying Squad. During his police years, he was awarded the South African Police Medal for Combating Terrorism twice besides lesser awards. After leaving the Police Force he obtained the law degrees B Iuris & LLB at the University of the Free State (Bloemfontein, South Africa) and was a commercial law attorney for eight years. These days he is the owner of JKLS Africa and Associates, a specialist legal consultancy which specializes in reducing legal risk in sub Saharan Africa. He wrote several books on business, law, counter-terrorism and security issues. At times he is asked to participate on the Voice of America regarding legal forensic matters.