After her fight for the creation of a mechanism for the restitution of ill-gotten gains to the populations of the countries of origin of the funds, Sara Brimbeuf describes the role of Tansparency International in this case and the ins and outs of this mechanism.
In the summer of 2021, the mechanism for the transparent restitution of ill-gotten gains to the populations of the countries of origin of the funds was created by France. This device had been demanded for fifteen years by NGOs, including Transparency International France. The Minister of Foreign Affairs at the time, Jean-Yves Le Drian, considered that “this mechanism constitutes a very concrete means of combating the ravages of corruption”.
Before the creation of this system, the funds confiscated in the context of cases of ill-gotten gains were attached directly to the receipts of the general budget of the French State. From now on, it will be possible to redistribute the funds resulting from the sale of ill-gotten gains directly to the populations, indicates Transparency.
Sara Brimbeuf, Head of Serious Corruption and Illicit Financial Flows Advocacy at Transparency International France, discusses the terms of the restitution mechanism.
Le Journal de l'Afrique: You have been calling for this mechanism for the restitution of ill-gotten gains for fifteen years. Why did it take so long?
Sara Brimbeuf: Nearly 10 years to obtain the creation of this restitution mechanism may seem long, but it is a usual period. Advocacy, ie convincing public decision-makers to write or modify the law, is a long-term process. We are used to it: it is the heart of our activity at Transparency France. From the filing of the first complaints, in 2008, the restitution of assets was our main objective. We started this work in the wake of the launch of the legal proceedings. We had to hear international experts from civil society, practitioners, learn from the Swiss, American or British examples, from countries that already have experience in this area, draw inspiration from the principles established at the international level at the occasion of the Global Forum on Asset Recovery (GFAR) held in Washington DC in 2017 to develop our proposals and reflect on the practical modalities of restitution. It was then necessary to convince the decision-makers, ministerial advisers and senior officials of the Ministries of Foreign Affairs, Justice and Bercy, but also parliamentarians. In addition to the publication of a series of reports, we organized two conferences dedicated to the question of the restitution of misappropriated assets – one at the National Assembly in 2017 and the second at the Senate in 2019. The challenge was to convince parliamentarians and public decision-makers of the need to create a restitution mechanism, to draw its outlines and to "put the subject on the political agenda". The vote by the Senate in 2019 of a bill relating to the allocation of assets resulting from transnational corruption brought by Senator Jean-Pierre Sueur during a parliamentary niche of the Socialist Group and taking up all of our recommendations greatly accelerated the process. This vote led to the creation of a parliamentary mission led by MPs Jean-Luc Warsmann and Laurent Saint-Martin, whose recommendations were also greatly inspired by our recommendations. We then had to find a “legislative vehicle”, that is to say a law in which we could integrate such a mechanism. This was ultimately the programming bill relating to solidarity development and the fight against global inequalities, known as "PJL Développement Solidaire", voted in 2021. The adoption of this law was a crucial step in our advocacy, but n did not mark the end point. If the law of 2021 laid down the main principles that will govern future restitution processes, the modalities of restitution remain to be determined (modalities for consulting civil society, evaluation methods, etc.). We have compiled our recommendations in this area in a "Practical guide for responsible restitution of ill-gotten property" published in June 2021. In November 2022, the Prime Minister published a circular on the mechanism for the restitution of ill-gotten gains containing some of these recommendations.
"France, as a land of welcome for assets from grand corruption, has a moral debt vis-à-vis the victim populations"
Previously, any restitution for the benefit of the populations of the countries concerned was impossible. Where did the money for ill-gotten gains go, especially by African leaders? Was France in contradiction with the United Nations Convention against Corruption, known as Merida?
The United Nations Convention against Corruption sets a fairly restricted framework for restitution. The Convention only requires States Parties to return assets derived from corruption when the States of origin of the assets — that is, the States of origin of the embezzled money — so request, either through the channels of international judicial cooperation or by becoming a civil party in the context of legal proceedings initiated in the host State of the assets - that is to say the State where the proceeds of corruption have been laundered and invested.
This is exactly what French law provided for. However, in the cases of ill-gotten gains initiated by complaints from NGOs, the position of the States of origin consisted in contesting the very existence of the offenses prosecuted, blocking, in fact, any possibility of restitution under the Mérida Convention. .
In these cases, in the absence of action on the part of the State of origin, the money resulting from the resale of ill-gotten goods could only fall back into the budget of the French State. In our opinion, this would have constituted a “double penalty” for the populations of the countries of origin. Not only do they pay for the corruption of their ruling elites, but they also suffer from the inertia and dysfunctions of their judicial apparatus preventing any restitution.
How are the refund terms defined? What share for France and for the country concerned? Is it civil society, NGOs or politicians who have their say?
The law of August 4, 2021 lays down a general principle for the restitution of ill-gotten gains. The law also established the following budgetary architecture: the funds confiscated in cases of the "ill-gotten gains" type will give rise to the opening of specific budgetary appropriations placed under the responsibility of the Ministry of Foreign Affairs and piloted by the Agence Française of Development (AFD). It is specified that these funds will not be counted as official development assistance in order to avoid any confusion about their illicit origin. It is indeed essential that the populations of the countries of origin know that this money is returned to them, that it is not a question of “aid” from France. These funds will finance cooperation and development actions in the countries concerned, as close as possible to the populations, in compliance with the principles of transparency and accountability, and ensuring the association of civil society organisations.
The circular of November 22, 2022 from the Prime Minister on the mechanism for the restitution of ill-gotten gains specifies the principles laid down in the law of August 4, 2021. While we welcome certain provisions of the circular, in particular in terms of transparency, we regret that our recommendations relating to the methods of participation of civil society organizations in the restitution process have not been taken up. By virtue of this text, which only proposes an optional consultation of CSOs concerning the allocation of returned funds, the participation of NGOs risks being marginal.
“Ensure that the confiscated funds, once returned, do not fall back into the circuits of corruption”
The returned funds will follow a path that will, in theory, prevent them from falling back into corruption circuits. How to be sure?
It must be understood that zero risk does not exist, especially when it comes to sums of this magnitude. This is even one of the main challenges to be met by an asset restitution policy: to ensure that the confiscated funds, once returned, do not fall back into the circuits of corruption or into the hands of public officials. corrupt. It was therefore necessary to integrate sufficiently strong safeguards into the mechanism to ensure the transparency, accountability and integrity of the process. These guarantees must be general enough to cover several scenarios depending on history, the political regime – change of regime or not –, the geographical situation, etc. of the country of origin of the assets, and sufficiently precise to minimize the risks of embezzlement and misappropriation.
Drawing inspiration from examples that have worked abroad, and others that have failed, we have formulated recommendations that we have compiled in a “Practical guide for the responsible return of misappropriated assets”. The challenge is twofold: first to ensure that these funds, which are so difficult to confiscate, do not immediately fall back into corruption circuits, but also to ensure that they finance projects that meet real needs, and very often urgent needs of the people.
To ensure that the funds do not fall back into the circuits of corruption, a clear message is needed, taken to the highest level and not clouded by strategic and political considerations.
Finally, alongside Equatorial Guinean organizations, we propose projects that could be financed by these funds, such as, for example, the creation of an independent satellite radio station that could broadcast to Equatorial Guinea from another country.
How is the restitution of development aid different?
The difference, and it is significant, is the source of the funds. The sums returned are neither donations nor loans. On the contrary, France, as a host country for assets resulting from grand corruption, has a moral debt vis-à-vis the victim populations. This is why the restitution procedure cannot follow the traditional channels of development aid. It is also essential that the funds are labeled "returned" at all stages of the process.
Other countries, such as the United Kingdom, Jersey, the United States or Ireland, opt instead for infrastructure projects. How is this a bad idea?
Between 2012 and 2021, the United Kingdom, Jersey, the United States and Ireland returned several hundred million dollars to Nigeria, in three separate restitution processes. These three restitution processes have in common, the returned funds were allocated to the construction of the same infrastructure projects, namely the construction of a highway between Lagos and Ibadan, the road between Abuja and Kano and the second bridge from Nigeria.
This decision concerning the use of funds, taken in the absence of consultation with Nigerian civil society, gave rise to numerous and lively disputes. The lack of transparency and inclusion of civil society at the stage of the allocation of returned funds is also accompanied by a risk that the funds will be diverted again: CSOs have indeed noted that the three infrastructure projects to whom the returned funds were allocated had already been allocated the funds resulting from the restitution that took place between Switzerland, Jersey and Nigeria.
However, neither the Nigerian authorities, nor the partners of the successive restitutions which are the United Kingdom, the United States, Jersey and Ireland, provided justification for the allocation of the returned funds to infrastructure projects. already funded, raising the risk of further diversion of funds to Nigerian federal officials.
Prior consultation with Nigerian civil society to better understand its needs and expectations regarding the use of returned funds could have ensured that the funds were used to directly benefit the victim populations.
"Giving back the money to those who have been robbed of it, that's the goal we set ourselves"
The new mechanism for restitution by France of ill-gotten gains is administered by the Ministry for Europe and Foreign Affairs, through credits which must be allocated to cooperation and development actions, in particular carried out by the French Development Agency (AFD). Isn't this, with the collection of funds from the general budget of the French State, a way of maintaining a certain supervision over the countries concerned?
The restitution money does not belong to France. This is notably why we insisted that restitution be the subject of a specific budget line in the AFD budget. It should also be remembered that by virtue of the principle of sovereignty of the States orchestrating international relations, the restitution of ill-gotten gains cannot be made without the approval of the authorities of the countries of origin of the funds.
It should also be noted that the mechanism created by the law of August 4, 2021 does not systematically entrust the management to AFD, but on the contrary leaves itself the possibility of going through international organizations (World Bank, United Nations Development Program , etc.) and NGOs depending on the specific case.
If France does not want to be accused of neo-colonialism, paternalism or guardianship, it must dialogue with civil society in the countries of origin and include it at all stages of restitution. Returning the money to those who have been robbed of it is the objective that we set ourselves at Transparency International France almost 15 years ago when we filed a complaint and we became a civil party in property cases. ill-gotten. It is now the responsibility of France, in collaboration with the authorities of the countries of origin and NGOs.
In concrete terms, in the case of Equatorial Guinea, how is the restitution mechanism going? In particular after the sale of several hundred thousand euros of objects belonging to the Obiang son.
Many movable assets, including luxury cars and more recently works of art have already been sold at auction. The restitution process is slowed down because the private mansion located on avenue Foch confiscated from Teodorin Obiang by French justice now houses the Embassy of Equatorial Guinea, this despite a decision of the International Court of Justice rendered in 2020 refusing to recognize the diplomatic status at the building. A diplomatic solution must be found to allow consideration of the restitution of this property estimated at nearly 100 million euros.