National wealth from Equatorial Guinea has been in the news lately, with the conviction in France (on 26 October 2017) of Teodorin Obiang, the Vice-President and eldest son of the incumbent President of Equatorial Guinea, Teodoro Obiang Nguema Mbasogo, for corruption, money laundering and abuse of trust involving more than €150 million (US$174 million) belonging to his country.
Consequently, the French Court forfeited his illicitly acquired assets (including his €107m mansion and fleet of luxury cars), handed him a three-year suspended jail sentence and a suspended fine of €30m. He was found to have used the illicitly acquired assets to fund his lavish and jet-set lifestyle and to purchase luxury goods, sports cars and a private mansion in Paris.
In the government of his father, Teodorin had served as the Agriculture Minister when the scandal about his misappropriation of public wealth broke. As if to reward his son for doing well and to spite the anti-corruption sentiments of the whistle blowers and busy bodies within and outside Equatorial Guinea, the father promoted him to the position of Vice-president. Like Nigeria, Equatorial Guinea is an oil rich but impoverished country. It is endemically corrupt.
The most interesting part of the story is that the recovery was made possible by non-state actors (NSA), including Transparency International France and Sherpa, a France-based civil society organization (CSO).
This is a novel development. Traditionally, in inter-state assets recovery, as confirmed by the United Nations Convention Against Corruption (UNCAC) 2003, only the victim state has the locus to initiate any proceeding (whether criminal or civil) that could culminate in recovery. And since the Mbasogos (the directing will and mind of Equatorial Guinea), who ought to take the necessary steps were the beneficial owners of the illicit assets, Equatorial Guinea was incapacitated from doing so at the expense of its citizens.
Such vacuum was the pathway to impunity, as evidenced by Teodorin’s ostentatious display of his loot in France. However, in a twist of fate, the NSAs dared traditional international law since 2008 to impress it upon the French Court that the vacuum created by the Mbasogos’ incapacitation of Equatorial Guinea’s will to recover its looted assets ought to be filled by them. The road to recovery was rough, tough and costly for the France-based NSAs who must be congratulated for engaging in the public-spirited exercise that has restored national wealth back to the victims.
There are some lessons we all in Nigeria and beyond need to learn from the external stimulus from France. In the first place, the precedent-laying solo efforts of the NSAs exposed the inadequacy of the UNCAC which makes the victim state the centre of gravity in the recovery of its plundered assets.
Ordinarily, this is reasonable for he who wears the shoe knows where it pinches. But we live in extra-ordinary times where victim states cannot originate request for assets recovery because the assets in question are the illicit acquisitions of those charged with the responsibility of acting for the victim state. Roman Poet Juvenal would ask: Quis custodiet ipsos custodes (who will guard the guards themselves?). Secondly, on the foundation of the UNCAC which robustly provides for inter-state assets recovery, the French Court extended the frontiers or the scope of those with the locus to request or initiate assets recovery to include NSAs.
The precedent is very helpful. Interestingly, article 13 of the UNCAC obliges states parties to the convention to involve civil society in the battle against corruption. And battling corruption logically extends to recovering the loot derived therefrom.
Thirdly, domestic and international cooperation is essential in assets recovery. The NSAs in France were able to come this far in recovering the looted assets because civil society (including witnesses) in Equatorial Guinea fed them with relevant supporting information or evidence. Although chapter IV of the UNCAC provides for such cooperation, it is only within the scope of inter-governmental relations.
But there is no harm in inter-jurisdictional cooperation amongst NSAs. Such cooperation can trigger cross-jurisdictional spontaneous information flow for the purposes of assets recovery. In the fourth’s place, it throws up the possibility of cooperation between NSAs and the government.
Usually, inter-governmental cooperation is hindered where the victim state will not request or initiate assets recovery for reasons already identified. Thus, Zaire (now DRC) under the dictatorship of Mobutu Sese Seko would not request the recovery of the assets Mobutu secreted away in Switzerland.
Even when it was obvious that the armed rebellion massed against Mobutu would inevitably succeed, Switzerland failed to freeze his assets until May 1997 when the Attorney General of a city that declared its allegiance to anti-Mobutu rebels formally requested such measure.
In the few instances where the victim state appears to summon the political will to ask for assets recovery, it fails to do so diligently. Such reluctance forced Switzerland to terminate its cooperation with Haiti in 1986 and post-Mobutu DRC in 1997. Therefore, NSAs can fill in the gap by liaising with foreign jurisdictions in assets recovery and vice versa. Notably, the agitation by the NSAs in France triggered a change in French legal system and judicial recognition of the locus of NSAs to recover assets belonging to Equatorial Guinea despite its lack of cooperation.
In the fifth’s place, the stimulus from France is a wake up call on foreign states to seriously consider unilateral freezing or seizure of illicitly acquired assets in their territories where the victim state has been incapacitated to ask for assistance. This is quite different from a situation where the custodial state is motivated to take such steps upon finding out that its domestic law has been violated by the beneficial owners of the assets, as was demonstrated by the UK in respect of James Ibori, and the US in connection with Deziani Madueke.
Under contemporary international law, there is sufficient state practice of states freezing or seizing foreign assets domiciled in their territories suo motu where human rights violations have been established against the targets. This can be extended to cases of high profile corruption.
Finally, the work schedule of NSAs must now include judicial activism. They must not always wait for the government to initiate the recovery of assets illicitly acquired by Politically Exposed Persons (PEPs). Rather, where the government displays reluctance to do so, they can take up the challenge and invoke judicial intervention.
By the way, it is gratifying to note that ANEEJ, SERAP and other CSOs recently organized the pre-Global Forum on Assets Recovery (GFAR) in Abuja, preparatory to the GFAR meeting scheduled for Washington D.C. in December 2017, in anticipation of Swiss return of $321 million Abacha loot to Nigeria. Equally important is for the judiciary to see the persuasive guide in the green light from the French Court when misappropriators of our collective patrimony seek to shut down NSAs by raising the bar of locus standi.
Dr. Igbinedion is senior lecturer, Department of Jurisprudence and International Law, Faculty of Law, University of Lagos.