Today’s guest post is from the civil society group EG Justice, a civil society organization that promotes the rule of law, transparency, and the protection of human rights in Equatorial Guinea. (For a longer discussion of the issues raised in this blog post, please visit the EG Justice website: www.egjustice.org.)
Last month, Professor Stephenson asked: “Whatever Happened with that Charity the Obiang Settlement Was Supposed to Fund?” Not coincidentally, thousands of people in Equatorial Guinea have been asking themselves that same question for the last five years, and they have yet to receive a satisfactory answer. We are not entirely surprised by the impasse. When one drives into a cul-de-sac, with clear road signs warning ahead of time that there is no exit, one should only expect to return to the entry point. Likewise, when negotiating with authoritarian kleptocrats who consider themselves above the law and who are accustomed to acting with absolute impunity, it would be naïve to expect them to negotiate fairly.
The settlement between Equatorial Guinea and the U.S. appears to anticipate this impasse, laying out several options. The settlement first lays out what we might call “Plan A”: Within 180 days, the U.S. authorities and the defendant (Teodorin Nguema Obiang) are to jointly select a charity to receive the funds realized from the sale of Nguema’s seized assets, with that charity to use the funds for the benefit of the citizens of Equatorial Guinea. But in apparent anticipation of the difficulties in reaching such an agreement, the settlement goes on to lay out a “Plan B,” according to which, if the U.S. and Nguema can’t mutually agree on a charity within 180 days of the sale of the assets, a three-member panel is to be convened to receive and disburse the funds—with one member of the panel chosen by the U.S., one by Nguema, and one, the Chair, by mutual agreement. Again anticipating the possibility that the parties will be unable to agree, the settlement has a “Plan C” (or a “Plan B-2”): If the parties can’t agree on a panel Chair, within 220 days after the sale of the property, the court retains the discretion to order the parties to participate in mediation, or the court may simply select a panel Chair directly.
When the agreement was adopted in 2014, those of us familiar with the Obiang family’s decades of brazen looting and attitude of impunity knew that the provision requiring the United States and Mr. Nguema Obiang to jointly select a charity to receive and manage the funds was destined for a dead-end. Mr. Nguema Obiang and his father’s administration cannot be relied upon to act in good faith. They never do. They, and only they, benefit from hijacking or holding the asset repatriation process hostage. Indeed, EG Justice, along with a number of other civil society partners, submitted a letter to then-Attorney General Eric Holder in which we flagged the repeated and systematic disrespect for judicial processes in the United States and in other jurisdictions by Mr. Nguema Obiang and other government officials. For example, Mr. Nguema Obiang, in violation of US federal law, removed valuable assets from US jurisdiction while the forfeiture litigation was pending. He not only repeatedly ignored or defied formal requests for the return of those assets, but he (and the Equatoguinean government) flaunted the assets and gloated in public statements and on social media. And the Equatoguinean government also flatly refused to cooperate or provide assistance if there was an order from the United States to seize assets belonging to Nguema Obiang in Equatorial Guinea.
None of these moves by the Obiang family came as a surprise to those that follow that mafia clan closely. And so it was entirely unsurprising that, after 180 days went by following the sale of the seized property, Nguema had not only not agreed on a charity, but had failed even to negotiate in good faith. After all, what incentive does Nguema Obiang have to cooperate with US prosecutors to establish a charity that would help alleviate poverty in Equatorial Guinea? Doing so, after all, might help at least some Equatoguinean families to escape the absolute dependence on regime’s patronage system and allegiance to the Obiang family. Thus, after the initial 180 day deadline had long passed, we hoped DOJ prosecutors would ask the judge to go to Plan B—the three-member panel. But as far as we know, the parties have not taken any further steps and the judge has not ordered any further course of action.
This is a shame, because there’s a clear way out of the current stalemate—a stalemate that the original settlement document anticipated and planned for. That settlement agreement spells out a clear roadmap. It spells out alternative paths, a Plan B and a Plan C, in case the parties cannot agree. It contains deadlines. Those deadlines have come and gone. There is no excuse for the US authorities—the prosecutors and the court—to do nothing. The time has come for US prosecutors to honestly recognize that they are dealing with an authoritarian kleptocrat for whom agreements and laws are meaningless. Ultimately the people of Equatorial Guinea deserve justice, not a charity. But in the short term, the US should stop sitting on resources that it promised would be used for the Equatoguinean people, years after that promise was made.