GAB is pleased to publish this account of the 4th day of the trial of Equatorial Guinean Vice President Teodorin Nguema Obiang by Shirley Pouget of the Open Society Justice Initiative.

Monday, June 26, was the fourth day of trial of Equatorial Guinean Vice President Teodorin Obiang on charges amounting to kleptocracy.  After three days of skirmishing about procedural issues, the court finally heard testimony in support of the charges.

 *Roberto Berardi, who had been in business with Teodorin, told the court that after confronting Teodorin about allegations of corruption leveled by the U.S. Department of Justice he was jailed and held in solitary confinement for almost three years.  The reason, he believes, was to prevent him from talking to U.S. authorities.

*Delfin Mocache Massoko, whose on-line news site Diaro Rombe chronicles the Obiang family’s business dealings, told the court that he and many of his sources had been told “they will pay” for exposing the Obiang’s corruption to the world.

* Tutu Alicante León, an Equatorial Guinean exile who runs EG Justice, detailed the brutality and repression Equatorial Guineans face and deprivation and extremen poverty they live in thanks to the Obiangs’ crimes.  At the court’s request he explained how any assets the court ordered seized from Teodorin could be returned to the country in ways that would benefit its citizens.

* Pedro German Tomo, another Equatorial Guinean exile, testified that when Teodorin was Minister of Agriculture and Forestry he forced logging companies to pay 10,000 francs per square meter of board logged to a company Teodorin controlled and later, when Teodorin took responsibility for infrastructure, any company winning a construction contract had to pay a 10 percent commission to the same company.

* Daniel Lebegue of Transparency International France explained to the court why his organization felt it had no choice but to bring this case against Teodorin.  He said TI-France had consulted extensively with TI chapters in Senegal, Mali, Niger, Nigeria, Namibia, Kenya and Tanzania before lodging the complaint: “we wanted to go hand in hand with our colleagues from the African Chapters and be sure that our action was right.”

What follows is an account of each witness’ testimony.  No recording or transcript of the proceedings was made.  To GAB’s knowledge, Mme. Pouget’s account of the witnesses’ testimony will therefore serve as the only record.  Anyone who believes there is an error, or who wishes to provide additional context, is urged to post a comment below.   

Berardi

Italian Businessman Roberto Berardi testified at the request of CORED (Coalition of the Opposition for the Restoration of Democracy). Berardi was joint owner of Eloba Construction, of which the Teodorin Nguema Obiang owned 60 percent of the shares. Berardi managed the company. He gradually became concerned that some contracts were unpaid. He was arrested in 2013 after attempting to confront his business partner about US Justice Department allegations that Teodorin was using an Eloba account to launder proceeds of corruption in the United States. He was held incommunicado for many days at the Bata police station and severely beaten.

Following a trial he called unfair, he was convicted and sentenced to 28 months in prison for theft of company property and fraud, a conviction he believes was aimed at ensuring he did not talk to the US Department of Justice about corruption allegations. Despite international pressure, he was kept in solitary confinement for 22 months. “The context of the Equatorial Guinea is context of kleptocrats: the father, the mother and the son”. The Presiding Judge asked for more information about the establishment of companies in Equatorial Guinea. The witness explained that in Equatorial Guinea it is impossible to conduct business without having a member of the ruling family involved. “Teodorin Obiang used a parallel bank account that was set up in the name of Eloba Company to divert corporate assets.” The Defense pointed out that Beradi’s testimony could not been given serious consideration as he got himself charged and convicted in 2010 in Cameroun for breach of trust and misappropriation of corporate assets.

Mocache Massoko

Delfin Mocache Massoko has been in exile since 2004.  An asylum seeker based in Madrid, he is the founder and director of a Madrid-based independent paper, Diaro Rombe. The paper investigates and exposes the government’s grand-corruption and nepotism. “No need to tell you how the political situation is, it is a disaster,” he told the court. “Anyone who has a dissenting political opinion has to leave the country. Our government is capable of anything to remain in power: dividing families, ruining lives and even murdering opponents. Myself I have been persecuted by the government because I am the director of an independent paper which exposes state corruption and mismanagement of public resources. Most of the population lives in extreme poverty. Teodorin Obiang Nguema blames the oil companies operating in Equatorial Guinea for taking 70% of the revenues out of the country and depriving the population of resources that could help alleviate poverty. But if this is true, the question one may ask is who is benefiting from the remaining 30%? The answer to that question is straight forward: Teodoro Obiang Nguema Mbasogo, Teodoro Nguema Obiang Mangue, Constancia Mangue Nsue Okomo, Gabriel Mbega Obiang Lima, Justo Obiang Mangue, Pastor Hassan Obiang Mangue and others are siphoning public funds off for their personal profit. The Obiang clans are all shareholders in most businesses established in Equatorial Guinea.  These include: Abayak, Ecocsa, Somagec, General Works, Sogeco, Arab Contractors, Seguibat, BGFI Bank, Bange, Gecomsa, and Segesa. I can prove that several companies have been recipient of public funds to improve the accused’s lifestyle”

The Tribunal questioned the witness about his sources.  Mocache indicated that he was not in position to respond. “To get access to the files, we need to protect our sources. Our informants are taking risks. Some have lost their jobs because their identities were revealed.”

William Bourdon, counsel for TI-France, asked: “Are you able to tell us about your sources and investigations? What have you uncovered?”  The witness began to report on the case of Jacob Loboue, Teodorin’s Special Adviser in Communication and International Media.  “Mr. Loboue was responsible for defending the interest of Teodorin Obiang along with other associates.  To do so they started a propaganda campaign against William Bourdon and the President of Transparency International.  Jacob and his affiliates designed a communication strategy on the ‘Ill-Gotten Gains’ case and the UNESCO prize. In a conversation I had with him, he actually acknowledged that he manipulated information against Bourdon and was accusing him of being involved in events that did not take place.” “I also have evidence of talks between government members and the Ambassador of Equatorial Guinea in Germany regarding multi-million contracts with German businesses, including with Lurssen, a shipbuilding family owned business. They created a fictitious company- the Global Business Group Equatorial Guinea , GBGEG, to misappropriate public funds. To expand their portfolio in Germany, they appointed Mr. Lurssen as Honorary Consul of the German region Baja Sajonia.”

Counsel Bourdon continued: “Have you received any threats because the work you are doing? Do you anticipate reprisals against the witnesses testifying?

“I have been repeatedly threatened. We have been warned that all witnesses will pay dearly for it”

Bourdon: “Does the fact of being a lawyer or a judge protect you in Equatorial Guinea?”

“The Judiciary is a private enterprise in my country. The recent corruption case was tried before the Criminal Court of EG in less than a week. The trial never really took place.”

Bourdon: “Do you have any views on the question of immunity?”

“Teodorin was expecting to be appointed Head of State. He has been given the title of Vice-President to escape criminal prosecution.”

Bourdon: “What are you expectations with the trial?”

“The stolen assets must be repatriated to Equatorial Guinea and benefit our people. Cars do not help buy rice….I am looking for a fair trial, without flaws.”

Defense counsel then cross-examined the witness. Teodorin’s lawyers pointed out that his father was the President of the UCD, a political party, and was running for President. “Your father received USD$100m to pay for your studies. Defense counsel: “Where is the evidence of the allegations you are making?”

“I can prove everything.”

Alicante León

Mr. Tutu Alicante León testified at the request of TI-France.  He is a US-trained lawyer and the Executive Director of EG Justice, an NGO dedicated to promoting human rights, the rule of law, transparency, and civic participation to build a just Equatorial Guinea.   Alicante began by thanking the court for the opportunity to tell his story, particularly his firsthand account of the horror of brutality and oppression.

“I am from Annobón Island, a small, isolated, beautiful island in Equatorial Guinea. In August of 1993, an event occurred that forever changed my life. The military arrived to suppress an uprising by a group of young men. They arrested, tortured, and abused all the young men in sight. They publicly executed two of them. They burnt down my family’s house when they could not find my cousin Eusebio.

“Shocked by what had rattled our community, that night I asked my father what we were going to do about what had happened – about our house. To this day, I still remember the defeat and sadness in his face. He could barely utter a response. ‘There is nothing we can do, son.’  Those were his words.  I refuse to believe that nothing could be done. Five months later I went to the United States to study and acquired the tools that would help me bend the arch of history towards justice and human rights in Equatorial Guinea. So, I became a lawyer and a human rights advocate.   For the past 12 years, I have been heading EG Justice, an NGO that promotes human rights, rule of law, transparency, and civic participation in Equatorial Guinea. My work consists of representing victims. Your Honor, you are looking at many victims today in this courtroom. Some people in this room have lost their properties, some people have been tortured. Some have lost family members. At the same time, some people in this room do not know they are victims; similar to innocent children who grow up in a house full of abuse, and thus, do not know what a normal childhood should be.   We are victims of the most repressive government, characterized by human rights violations and corruption.

“And let me be clear, corruption is not a victimless crime. My young pregnant sister, Chiquitina, died because there were no doctors at the hospital. She arrived alive, but there was no doctor in sight to help her through a minor complication with her pregnancy, and she bled to death. This was a death caused by corruption. Most Equatoguineans have a similar, seminal story of family members that perished because there were no doctors, no medicines, no electricity, even though there are plenty of resources to provide health care.  There are doctors on the state payroll, and the government purports to allocate funds to purchase medications.   I have been in the United States for 23 years. I have two children.  I also have over 20 nephew and nieces who live in Equatorial Guinea. I am well aware that my two children are very lucky and live a privileged existence just by virtue of having been born in and living in a country that cares about the wellbeing of its people.  It is a privilege for me to stand here. Many of my colleagues have been detained and tortured; many have been incarcerated unjustly, disbarred, and ostracized for speaking up.  I am honored to speak on their behalf.”

Alicante invited the Court to question him on any issues, including the US case.

The Presiding judge inquired about how the funds have been used in the US forfeiture case and the resulting settlement. The witness responded that the money is divided into two distinct funds, the rules for disposition of which differ. Of the approximately $30 million, $10.3 million is forfeited to the US Government, and may only be given to a US Government agency: such US Government agency may use these funds however it chooses within US law  to “benefit” the people of Equatorial Guinea. The remaining $19 million covered by the agreement is also to be used “for the benefit of the people of Equatorial Guinea.” As set out in the settlement agreement, the US and Teodorin will seek to agree on a “charity” to receive and apply the funds for the benefit of the people of Equatorial Guinea.

Should the parties not agree on a charity, disposition of the funds will require a decision by a panel that will include one member appointed by the US government, a second member appointed by the Equatoguinean Government, and a third member, the chair, who is to be designated by the other  two members. (Click here and here for more information about the US case.)

Ti-France counsel William Bourdon went on to ask:

“What’s the magnitude of the natural resources spoliation by the ruling family?”

“Instead of a state, Equatorial Guinea is a crime syndicate. The country is run as a private enterprise. Every aspect (military, political, economic judiciary) is controlled by the ruling family, and often to advance a crime. Equatorial Guinea is the perfect example of an absolute ‘state capture.’ ”

Bourdon: “In your view, is Teodorin Nguema Obiang a “scapegoat”?

“It would be a little too coincidental to have so many law enforcement inquiries into a scapegoat. Investigations are ongoing against either the father or the son in a number of jurisdictions- including in Spain and Switzerland- a yacht was recently seized in the Netherlands, and a settlement was reached in the US. Teodorin Obiang is a central figure in the crime and corruption syndicate in Equatorial Guinea.”

Bourdon: “Do you think the level of corruption has gotten worse in the past years?”

“We went from exploiting timber and wood to becoming the third largest producer of oil in Sub-Saharan Africa. Following the oil discovery, the President claimed that we experienced a transition from a period of “skinny cow” to one of “fat cows.”

President Obiang also often alludes to the African saying that claims that “a goat eats where it is tied.” Following his own analogy, I would say that as the pasture has gotten bigger, the EG goats have been eating more and more; the cows have gotten fatter.

Bourdon: “The ruling family keeps claiming that they are victim of an international conspiracy. Do you have any views?”

“We are in a situation where the government has never been held to account for any misdeeds. The ruling family has never had to face justice for their wrongdoings. The fact that this trial is taking place is utterly unprecedented. This has never happened in Equatorial Guinea. When you are used to acting with absolute impunity, the rule of laws and justice can feel like a big conspiracy. ”

Bourdon: Do you have any views on the recent judgment of the Bioko Norte Provincial Criminal Court of Equatorial Guinea?  In its 13 June decision, the Court found that the representatives of the three companies named in the French indictment carried out activities legally in Equatorial Guinea and acquitted the defendants.

“It is a mockery of justice. The State exercises control over all aspects of the Equatoguinean society including the Judiciary. No independent journalists reported on that case. The Judiciary serves at the whim of the President, who is the 1^st Magistrate.”

Bourdon: “The Defense is claiming that the U.S. proceedings were essentially a civil forfeiture case and is by no means indicative of admission of guilt. Why did Teodorin agree on a settlement?”

“The complaint had initially sought forfeiture of assets estimated at around $70 million. The Department of Justice and Teodorin’s lawyers agreed that all the assets would remain within the United States until the end of the judicial proceedings. But in violation of that agreement, and in violation of American law, Teodorin unlawfully managed to remove a Gulf Stream Jet, automobiles, and some of the Michael Jackson memorabilia out of the US jurisdiction, leaving approximately $30 million subject to the settlement agreement. Under the settlement, Teodorin agreed to give up the immovable assets in the US –a mansion in Malibu, California.  Essentially, the case settled for the value of all the goods within the USA at the time of the settlement. Had the case progressed to a trial, no more could have been secured in assets. ”

At that point, before the witness was able to address the question about admission or guilt of Teodorin, the defense could not refrain from intervening. “Your American expert hasn’t negotiated the settlement. He knows nothing about the US case.”

TI-France counsel Bourdon replied: “how far can the defense go to discredit a witnesses?” “You are not my teacher and I am not your pupil,” snapped defense counsel Marsigny.

Bourdon continued questioning Alicante:  “Your organization EG Justice had to face a defamation claim. Do you know people who have been subject to threats and intimidation? How far the policy of citing fake witnesses and presenting fabricated evidence can go?” What does the trial represent for Equatorial Guinea?

“Sadly given the level of impunity in Equatorial Guinea, I have no doubts that the government will do whatever it takes to silence people. They entirely fabricated Roberto Berardi’s case to prevent him from testifying before the US Department of Justice. This case is the first time in the history of Equatorial Guinean that officials are barred from acting with complete impunity. For the majority of people, the trial represents justice. At a personal level, it is a response to my father’s statement that there is nothing we could do after our house got burnt and our young men got killed. This trial is a recognition that in fact justice can actually prevail. For many poor people for my country, this is an opportunity to get stolen assets repatriated and used for the benefit of the population.”

Defense counsel then began to question Alicante, starting by dismissing his ability to testify on the U.S. case — claiming Alicante knew nothing about the settlement (apparently unaware that Alicante had closely followed it and carefully studied the record).  Marsigny stressed that the International Monetary Fund and the World Bank monitor EG’s economy and provide technical assistance to Equatorial Guinea, implying that this acts as a protection against corruption. Sergio Abeso Tomo, the defense’s second attorney, read from a 2016 IMF report a carefully chosen and out of context sentence to imply that the country’s social indicators have recently improved.

[For the benefit of readers not conversant in recent reports by the IMF and the World Bank, GAB notes that a recent report by Human Rights Watch makes clear the defense mischaracterized the role of these institutions and their findings.  The IMF and World Bank serve at the behest of the Equatoguinean government; they do not provide it with loans and thus have limited influence over the government. These institutions are supremely diplomatic in their language and are often deferential to government data.

At the same time, World Bank and IMF reports have repeatedly criticized EG’s opaque public financial management; lack of transparency; and woefully inadequate investment in the social sector. A 2015 IMF report states that: “to date, there has been limited movement on structural reforms, and weak governance and corruption remain a serious impediment.” In 2012, the IMF found that the improvement of social indicators and diversification the economy is impeded by “deep-seated deficiencies in public financial management.”

Likewise, in 2010 the World Bank published a lengthy critique of the “extensive informality” of Equatorial Guinea’s public financial management: “The lack of a legal framework for public finance management is especially obvious in the infrastructure sector where there are neither legal rules for executing expenditure and procurement nor guidelines for project appraisal and selection…. [T]he authorities’ determination to implement projects quickly exacerbates already loose budget constraints. However no up-to-date list of ongoing or finished infrastructure projects in the last five years exists, which limits the capacity to identify newly built infrastructure or the cost of ongoing projects …. Ultimate investment allocation is decided by the Presidency, without the need to record the investment project into the Budget being implemented, bypassing any formal screening and budgetary system in place …. There are no external audit reports and contract awards are not published. The current lack of transparency reduces agency accountability and increases opportunities for misappropriation.”]

During his questioning of Alicante, defense counsel made much of the fact that Teodorin’s father, President Obiang, had been received by President Obama at the White House, suggesting this showed he could not have done anything wrong. Counsel also claimed that that Teodorin requested a meeting with the U.S. Ambassador to complain about the international media campaign that was going on against him. According to a 2011 statement of the U.S. Ambassador ( read at the hearing), corruption in Equatorial Guinea did not arise from misappropriation of public funds but from opaque transactions –such as trafficking in influence and “sweet-heart” deals—that are legal under Equatorial Guinean law. Teodorin was not involved in the oil industry and his “international notoriety” would be “remarkable”.

Defense counsel thus argued that the issue at stake is not a question of misappropriation of public funds but one of conflict of interest. “It is not illegal under current EG laws to conduct business while carrying out a public office.” Equatorial Guinea has no legal framework that defines or limits the possibilities for public officials to conduct businesses. It is customary for Ministers to own shares in private companies.

Alicante rebutted this assertion by reading a statement released by the U.S. Department of Justice in 2014 showing that Teodorin was not as innocent as his lawyers attempted to paint him:

“Through relentless embezzlement and extortion, Vice President Nguema Obiang shamelessly looted his government and shook down businesses in his country to support his lavish lifestyle, while many of his fellow citizens lived in extreme poverty,” said U.S. Assistant Attorney General for the Criminal Devision of the Department of Justice Leslie Caldwell:  “After raking in millions in bribes and kickbacks, Nguema Obiang embarked on a corruption-fueled spending spree in the United States.  This settlement forces Nguema Obiang to relinquish assets worth an estimated $30 million, and prevents Nguema Obiang from hiding other stolen money in the United States, fulfilling the goals of our Kleptocracy Asset Recovery Initiative: to deny safe haven to the proceeds of large-scale foreign official corruption and recover those funds for the people harmed by the abuse of office.”

Tomo

Pedro German Tomo, a 57-year-old businessman residing in Madrid, was the third witness to testify for TI-France.  Tomo had been a Member of the EG Parliament and Chief Executive of TROMAD FORESTAL and TROMAD Construction. The witness told the Court about the illegal commissions and criminal activities of Teodorin, owner of SOMAGUI FORESTAL company when he was Minister of Agriculture and Forestry.

“He began to collect a revolutionary tax in 1996 when he was adviser to the Ministry. When he became Minister, international logging companies were forced to pay a tax (10,000 francs per m3) to SOMAGUI FORESTAL to obtain authorization to export timber. Once the Ministries of Agriculture and Forestry and Infrastructure were merged, Teodorin began to charge construction companies with a commission of 10% for any contract concluded. Commissions were paid in cash or through checks to SOMAGUI with the CCI bank of Equatorial Guinea. “Everything was under the control of his ministry, that is to say companies owned by Nguema Obiang. On some occasions Teodorin was taking suitcases of cash at his place.”

The witness went on to explain to the court that Teodorin issued false documents certifying that SOMAGUI was constructing roads (such as the highway Ebebiying – Mongomo) when in fact it was not: “All the companies Teodorin owned were shell companies and only had acronyms. Fictitious companies were only set up to collect government certifications.”

TI-France counsel Bourdon then questioned Tomo:

Bourdon: “Mr. Tomo you were called to testify before the Commission Rogatoire following an interview you gave to the Spanish newspaper El Pais. What was your main concern at the time?

(GAB: Through a formal Letter of Request or Commission Rogatoire , the US Department of Justice had asked Spain to take Tomo’s testimony for use in “the investigation of Teodoro Nguema Obiang and his associates.”).

“Security- I was anticipating reprisals. I started to cooperate with the Commission Rogatoire when they were investigating the Riggs bank. The President Obiang hired two Colombian hit men. They missed their target and stabbed my brother. He survived but was left with life altering deficits.”

Bourdon: “You have been the victim of an attempted murder and your brother has been severely injured. Today why are you testifying?”

“I testify because I have had firsthand experience of Teodorin Nguema Obiang’s corrupt practices.”

Defense counsel then asked: “You swore under oath that you are not a relative of the Obiang family. You lied. Your wife is the sister of the First Lady. Have you been appointed Member of Parliament of the Presidential Party because of your family ties with the Obiangs?  To judge the credibility of the witness, the Tribunal must be able to take all elements into account. Are you able to prove that you had to make payments to SOMAGUI? Where is evidence?”

“I had to live Bata hurriedly because I was receiving threats. I could not carry everything with me.”

Lebegue

Mr. Daniel Lebegue, the representative of the Civil Party Transparency International-France, also testified.  Lebegue, 74, is a former senior public of official of the French Ministry of Economy and Finance. He acted as administrator on a number of boards of directors- including Technip and Alcatel- and serves as Honorary President of Transparency International- France .

He began his testimony by recalling that Transparency International is one of the world’s leading civil society organizations fighting against corruption. The NGO presses governments and businesses to take action against corruption and adopt best practices on transparency, accountability and integrity. He made it clear that the judicial proceedings initiated against the accused had nothing personal against the peoples of Equatorial Guinea or its businesses. In fact, TI-France rarely uses litigation as a tool to advance its objectives. The NGO considered taking judicial action only because there were serious suspicions that immovable assets owned by three African States and members of their families in France could not have reasonably been acquired through salaries and emoluments alone. As he explained: “in France, we have the Rule of Law, citizens and the press are free. Sadly this is not a universal truth. The Rule of Law is nonexistent or deteriorating in many countries. I do not believe that the Judiciary in Equatorial Guinea is independent. Citizens do not have the possibility to raise their voice, they are not able to initiate legal actions to uphold their rights and seek redress for damages incurred. The assets were located in France; this is why we considered that we were legitimate to take action”. For Mr. Lebegue, this trial sends a strong signal that kleptocrats can no longer use France as a safe haven to launder the proceeds of their corrupt acts.

Let us be clear, with this civil party petition, the only objective of TIF was to advance the recovery and repatriation of stolen assets in France (GAB).

The Tribunal asked Lebegue could share his experience with regard to the repatriation of stolen assets and provide additional information on the African Chapters of Transparency International.   The representative of the Civil Party replied that although TI has no Chapter in Equatorial Guinea, TI- France consulted extensively with African sections (Senegal, Mali, Niger, Nigeria, Namibia, Kenya and Tanzania) before lodging the complaint before the Investigative Magistrate. As he put it: “we wanted to go hand in hand with our colleagues from the African Chapters and be sure that our action was right.”  The Civil Party indicated that the United Nations Convention against Corruption does not provide for specific rules and procedures on asset recovery and repatriation. Although the issue of asset repatriation has been on the agenda of the G20, the question as to how assets can responsibly be repatriated and directly benefit affected populations when the states in question are notorious for grand corruption remains largely unanswered. Victims of corruption (that is to say the entire populations deprived from the possibility to access basic social services, such as health, education, judicial institutions) should be central to any asset recovery cases.

Mr. William Bourdon then questioned Lebegue on a range of issues. Lebegue reiterated that TI-France’s decision to become a civil party to the proceedings was made with serenity and without external pressure. When asked about how he would have reacted if the Republic of Equatorial Guinea had been granted legal standing to act as a civil party, he replied that he would have challenged the decision. “The stolen assets belong to the people of Equatorial Guinea and cannot be returned to a kleptocrat government.  This trial is an historical event. International efforts against grand corruption and the Rule of Law are at stake.”

Questioned about how he felt when he got indicted for defamation following a complaint filed by Teodorin, he said: “the thought that I could have been arrested while traveling abroad whereas our action was legitimate was personally very hard”. (Lebegue was acquitted in 2013.)

Defense counsel asked Lebegue why Teodorin was the only one charged in this case when the initial complaint included several others allegedly involved in corruption.  He replied that that was not a question for him but for the judicial authorities that issued the charging orders.  In an attempt to discredit the witness, defense counsel claimed Lebegue was conflicted because as a former member of the board of directors of Technip (a global engineering, construction and services company based in Paris) he knew of a USD$ 230 million dollars contract between the company and the government of Equatorial Guinea. The defense pointed out that Technip was charged in 2010 in the United States for multiple violations of the Foreign Corrupt Practice Act. The company agreed to pay some USD$300 million to settle the charges. The witness replied that administrators are not made aware of the multitude of contracts signed by multinational companies.