GAB is pleased to publish this account of the 2^nd day of the trial of Equatorial Guinean Vice President Teodorin Obiang by Shirley Pouget and Ken Hurwitz of the Open Society Justice Initiative

The defense suffered several significant setbacks at the second day of Equatorial Guinean Vice President Teodorin Nguema Obiang’s trial for theft of public funds, money laundering, and other charges that together amount to kleptocracy.  As GAB earlier reported, Obiang’s lawyers sought to delay the case on procedural grounds and to block Equatorial Guinean citizens from, as French law permits, participating in the prosecution.  The court refused both requests.

Even worse for the VP, the court displayed a detailed command of the allegations against him along with a determination to see they are presented at trial. Accusations that have appeared in the media, civil society publications, or elsewhere will now be tested in a formal, judicial proceeding.  A finding that they are true, that Obiang did indeed rob the citizens of Equatorial Guinea blind, cannot do anything but embolden courts elsewhere to pursue similar cases while confirming to the world the regime’s pariah status.

The court’s ruling to allow at least for now continued participation by an organization representing important parts of Equatorial Guinean civil society was particularly significant. Run for almost 40 years by the Obiang family and cronies, the government of Equatorial Guinea is one of the world’s most repressive; opposition is not tolerated, and as numerous reports have documented (here, here, and here for examples), those who speak against the government are quickly arrested and imprisoned.  Independent civil society within Equatorial Guinea, including political parties and apolitical organizations, is weak and under constant attack, and much of the the opposition to the Obiang family rule exists in the exile community.  An important representative of these activities is the recently formed Coalición de Oposición para la Restauración de un Estado Democrático (Coalition of the Opposition for the Restoration of Democracy, “CORED”) which seeks to fight the family’s corruption and bring democracy to the country.

CORED has claimed a seat in the courtroom where it hopes to be recognized as a civil party in the case, allowing it to assist in the prosecution.  Should it succeed in persuading the court to grant it civil party status, this would mark an important step forward in the development of the opposition to the Obiang family’s dictatorship by among other things legitimizing indpendent civil society activity. Hence the vigor of defense counsel’s objections to the grant of civil party status to CORED.

The defense argued that CORED did not meet the requirements of Article 2-23 of the French Code of Criminal Procedure for being a civil party in a corruption trial.  That article, added after a landmark ruling by France’s highest court in pretrial proceedings in this case (English translation), provides that a registered association whose by-laws provide that one of its purposes is to fight corruption, is entitled to civil party status. CORED fails this test, the defense asserted, because it consists largely of Equatoguinean political parties and was organized for political purposes, to prepare for a democratic transition and free and fair election and to recover the proceeds of official, high-level corruption.  The defense also argued that CORED should not be granted legal standing under the general rule of Article 2 of the French criminal procedure code.  To do so it would have to show it sustained a concrete and direct injury caused by the alleged criminal conduct.

As the defense counsel put it in closing: “criminal trials cannot be ‘polluted’ by individuals who have nothing to do with the proceedings.” To avoid turning the trial into a political contest, it asked the Tribunal to rule on the issue immediately, before addressing the substantive issues in the indictment.

CORED’s lawyer responded that its participation in the proceedings is proper under Article 2 as it is acting on behalf of the people of Equatorial Guinea, the real victims of grand corruption in that country. The primary object of political parties is precisely to represent the citizens. Because of this representative function, CORED’s counsel asserted, CORED had suffered a direct and concrete injury caused by the misconduct of the incumbent Vice-President of Equatorial Guinea, Teodoro Nguema Obiang.

After 30 minutes’ deliberation, the Tribunal rejected the defense request to rule on the issue at once, saying it would consider the question later as the trial proceeded.  With that decision, the court concluded consideration of preliminary procedural objections, and the presiding judge announced that the court would move on to the substantive matters in the case.

In a last-ditch effort to defer actual presentation and consideration of evidence of corruption, the defense then sought to introduce into the proceeding a French translation of the decision of a peculiar criminal case decided on June 13 in the Bioko Norte Provincial Criminal Court of Equatorial Guinea.  In that case one representative each from the three companies named in the French indictment as vehicles for Teodorin’s money laundering and other crimes had been charged with corruption, misuse of public funds, and similar offenses.  It was surely not lost on the court that it was no coincidence that these charges mirrored those in the case before it.

It probably also did not escape the French judges’ notice that the Equatorial Guinea proceeding was a put up job. At the end of the June 8 one-day hearing on the case the official Equatorial Guinea press agency quoted the prosecutor as conceding that:

“[W]ith attention to the defendants and the known evidence, this public ministry does not find evidence of any offence…These companies carried out activities legally in the country”.

For [investigating magistrate Rafael] Ondo Nguema, the three companies “won their work contracts and executed them faithfully”, while he recalled that “after analyzing the crimes mentioned here, I have found that there is no punishment necessary; in conclusion, the public ministry requests absolution, as no criminal rationale can be found”.

On June 13, all three defendants were acquitted in a decision styled “Summary Sentence 113/2017,” which, although it has not been published, has been described in official press statements (conveniently translated into English).  Lest there be any doubt as to the real point of this exercise, the President of Equatorial Guinea’s Supreme Court of Justice explained in a press conference some days later that “it was inescapably demonstrated that the principal offence does not show misuse of public funds, corruption and abuse of social assets, so the procedure currently in progress in France must be dropped, because there is no principal crime”.

After accepting the judgment of what can only be termed a highly questionable proceeding for the record, the presiding judge devoted the rest of the hearing to reviewing the course of the proceedings to date, the main elements of the investigation and the contextual background to the case. (See the Open Society Justice Initiative’s website for the details.)  She noted that the facts are not complicated and indeed not even contested. In particular, the defense has not contested the claim that Teodorin purchased in France:  i) vast amounts of clothes from famous international fashion houses (Yves Saint Laurent, Pierre Berge, Christies, Dolce Gabbana); ii) high-end audio-visual equipment; iii) works of fine art; iv) expensive jewelry and watches; v) 26(!) sports cars; and vi) eight motorcycles.  These purchases are in addition to the stupendous 101-room, 2,835 square meter-mansion located on the ultra-toney Avenue Foch in Paris

What will be at issue during the trial will be how to characterize these purchases.  The prosecution argues that the bulk of them represent the laundering of proceeds of crime.  To prove laundering, they must show that illicit funds were unlawfully introduced into the French financial system (a violation of French domestic law).  The offense of laundering requires there was an underlying crime (or “predicate crime”) that generated the funds being laundered.  The predicate crime does not in principle have to have happened in France since it is not the predicate crime that itself is being prosecuted.  The legal battle will be joined on the question of whether there is enough evidence to prove the money originated from an illegal act; and whether the French courts have jurisdiction to make a determination on that point when the alleged underlying conduct took place not in France but in Equatorial Guinea and was carried out by an Equatoguinean national.

To do so, the presiding judge indicated that the tribunal will, among other matters, have to determine whether the misappropriation of public funds, breach of assets and breach of trust are crimes in Equatoguinean law. The defense will argue that none of the acts that generated the monies were crimes under Equatoguinean law.  It will contend in addition that, even if crimes were committed in Equatorial Guinea, a French court is not legally competent to rule on the question.

For 90 minutes, the Presiding Judge provided an impressive monologue on the case, giving lengthy details about the facts, the investigation and the contents of the case file. The strong impression was that she wanted to show the parties that she knew the file and understood the case. She devoted considerable time to showing the contextual background of the “ill-gotten gains” case indicating that charges were brought following a complaint by a civil society organization against three African heads of state and members of their families (namely the Presidents of Congo-Brazzaville, Gabon and Equatorial-Guinea) based mainly based on NGO reports and press articles. The Judge went on reading extracts of relevant material of the case file, including affidavits and depositions from numerous witnesses, and portions of  the 2004 US Senate Report on Riggs Bank, the full records of which contain thousands of pages of information about allegedly suspicious dealings between the Obiang clan, the foreign companies doing business in Equatorial Guinea, and Riggs Bank.  The judge put the defense on notice: their procedural motions will be dealt with in conjunction with the substantive allegations, which, she stressed, are copiously documented in the case file.

Clearly the court is determined to move ahead with the trial. The defense will have no choice but to address the factual record.

No matter the final ruling in the case, putting the appalling, egregious acts Obiang committed in looting of the wealth of the citizens of Equatorial Guinea on the public record in a judicial proceeding will mark an enormous step forward in the fight against kleptocracy.  The Justice Initiative will continue to provide reports as the case progresses.

(Notice of correction.  This post has been updated to reflect errors inadvertently introduced during the editing process.)