Guest Post: Toward a Meaningful “Common African Position on Asset Recovery”

GAB is delighted to welcome back Mat Tromme, Director of the Sustainable Development & Rule of Law Programme at the Bingham Centre for the Rule of Law, who contributes the following guest post:

It’s no secret that kleptocratic rulers in Africa have robbed their countries of substantial assets that could have  otherwise been used to promote development and social welfare. Indeed, the amounts are often staggering: $16 billion reportedly stolen by former Libyan President Gaddafi; $1 billion by Gambia’s ex-President Jammeh; billions by former Congolese President Kabila; and the list goes on. Recently, Nigeria’s Economic and Financial Crime Commission suggested that up to $50 billion has been looted from Africa, and whether or not particular estimate is accurate, there’s little doubt the problem is serious. More troubling is the fact that only a small proportion of these stolen assets have been recovered and repatriated to the country of origin.

As part of the effort to address the challenges of asset recovery—and to give African states more clout in negotiating the terms and conditions of asset return with the states that initially seize the stolen loot—African countries are currently undertaking an effort to develop a “Common African Position on Asset Recovery” (CAPAR). Incidentally, a common african position was the chosen theme of this year’s African Union Anti-corruption day. At this early stage, it seems likely that this effort will result only in a political proclamation (perhaps within the framework of this month’s UN General Assembly), one that will re-emphasize the importance of the speedy and unconditional return of assets, and call for better collaboration across countries. That’s a good start, but not enough! Developing a pan-African position on asset recovery—perhaps similar to the multilateral framework adopted by the Mercosur countries and by the EU—is a worthwhile endeavor, one that will likely produce tangible benefits only if it goes beyond mere statements of intent or general principles, and lays out some concrete steps to translate the vision into reality.

Ideally, CAPAR should seek to streamline policies and resources devoted to recovering assets and developing better investigative and prosecutorial capacity across African states, for example by implementing cross-border investigations and fostering collaboration, experience and information-sharing between countries. There are various ways to achieve this broad objective:

  • First, CAPAR should aim to draw on good practices at the country level and spread them throughout the continent. For example, CAPAR could institutionalize a system in which whistleblowers are compensated with a proportion of the assets recovered, as is the practice in Nigeria, or could promote something like Kenya’s Alternative Dispute Resolution (ADR) system for asset recovery, which has allegedly been used by the authorities to recover $27 million in four months alone. ADR systems avoid lengthy court proceedings, which may be particularly useful in countries with cumbersome court procedures, (though, let’s be honest, ADR systems have downsides as well.) Kenya has recently signed a bilateral agreement with Jersey and Switzerland, which should faciliate asset recovery, so CAPAR should also consider drawing on and replicating these sort of agreements.
  • Second, CAPAR could improve the mutual legal assistance (MLA) process for cross-border asset recovery cases. The current MLA process in Africa is beset by both legal and practical obstacles (see, for example, here and here). As Eliud Wabukala, chairman of Kenya’s Ethics and Anti-Corruption Commission (EACC) recently argued, developing a better MLA framework will improve information gathering and exchange, and improve law enforcement efforts more generally. CAPAR could add value by providing a more homogenous interpretation of some legal principles that are sometimes invoked to refuse MLA requests. It could further provide guidance on how to better enforce foreign judgments in Africa, clarify how an MLA request can be appealed, and so forth. Finally, CAPAR could also require governments to publish basic statistics on the MLA requests they received or requested, and how they were handled—data that at the moment is sorely lacking.
  • Third, CAPAR could help develop a common framework for addressing sensitive questions related to how recovered assets will be disposed of. Such questions include those related to allocating recovered assets among multiple countries when more than one has a plausible claim to the assets in question. The Mercosur countries have just struck a deal which clearly outlines how the decision to share the assets will be taken, and CAPAR could adopt a similar approach. Relatedly, given the salience of calls for victim compensation—and ongoing discussions over how victims should be defined and identified, and whether recovered assets should sometimes be transferred directly to individual victims rather than national governments—CAPAR should provide clear guidelines on these issues. And while CAPAR is likely to adhere to the widespread view in Africa that stolen assets should be returned by asset-holding states without conditions, CAPAR could also take a position on whether those returned assets should go into the consolidated budget of a given state or the African Union, or if assets should go towards a separate account, with some sort of additional safeguards or provisions governing how that money is to be used and shared among countries (even where governance standards among them differ). Crucially, and where relevant, CAPAR will also need to clarify conditions for sharing repatriated assets  among countries.
  • Fourth, CAPAR should formalize certain measures to improve the accountability and transparency of asset recovery. As per the GFAR principles, this means that CAPAR should provide ways for involving civil society throughout the asset recovery process, including in negotiations over how the funds will be tracked and used in practice once returned.

Of course, implementing these ideas will not be easy and edges onto the aspirational. First and foremost, asset recovery is a highly politically-charged issue, so even among countries that share similar interests and background, finding compromises may be difficult. Thus, the diversity among African states, and the fact that their interests and capacities may diverge substantially on asset recovery issues, is an important challenge (some countries, like Nigeria, South Africa, Kenya, have a lot  more experience than others in investigating, prosecuting and securing the return of assets). Sustaining momentum is another challenge.

Yet these challenges should be addressed. Africa doesn’t need yet another general political declaration. Or put it differently, it needs to ensure that this declaration actually gets translated into practice. CAPAR’s true potential lies in the possibility of developing a genuine multilateral asset recovery framework, one that would have a meaningful impact on the recovery of ill-gotten assets in Africa.

 

5 thoughts on “Guest Post: Toward a Meaningful “Common African Position on Asset Recovery”

  1. Thank you so much for this post, it was informative and thought-provoking. I agree with most of the mechanisms that you lay out, but would be interested to know what kind of enforcement you would imagine to be most useful in ensuring that recovered assets are properly managed. Transparency seems to be a key part of the solution, but in nations with ongoing corruption issues, I would be curious to know what measures are available to punish those who hide assets or mismanage those that are returned to them.

    One particular concern I have with continent-wide solutions is the role of power politics. To what degree might stronger, wealthier, more powerful countries use the CAPR to manage the direction of assets in a way that disproportionately benefits themselves? Is there a risk that these may circumvent the system to avoid being deprived of their own assets or to shield themselves from investigation into potential mismanagement? This seems particularly concerning where such countries have ongoing corruption issues and/or some stake in a given case. Would the CAPR allow smaller nations to check the undo influence of their more powerful neighbors?

  2. I would be interested to know how easy it would be to trace or repatriate these funds, particularly for smaller nations with less resources to track and trace funds. Presumably a significant portion of the funds that were stolen have been spent or otherwise dispersed amongst many different nations. To what extent can we hold the final beneficiaries of the stolen funds responsible for the actions of the original corrupt actor?

    I’m also curious whether you think prizes such as the Mo Ibrahim prize, which incentivizes leaders of African nations to carry out their democratically elected duties by offering 5 million dollars, could work well in conjunction with these dispute resolutions – or whether it’s more important to focus resources on recovery than on preemptive measures.

  3. Thank you for your post on this very thorny and politically-charged issue. I think it’s important to talk about actual logistics of undertaking such massive and complex multilateral processes such as CAPR. Like my colleagues, I had some additional questions after reading your recommendations and one was your general preference regarding how assets get redistributed within a country (leaving aside the powerful neighbor country politics). I am sure it depends on the context but do you see return of assets to individuals, national governments or the African Union to be more suitable? I would also like to hear more about how you see civil society groups being able to plug into these decision making processes. Are there many groups that work on these issues specifically and if so would many African governments be receptive to allowing them to participate in these forums and use their recommendations in a meaningful way?

  4. Very interesting post. Asset recovering through international relations is crucial to the effectiveness of anticorruption measures in developing countries. Regarding this topic, I think that, apart from steps in the international level, the improvement of domestic prosecution tools is also relevant, in order to enhance the opportunities not only to uncover the corruption practices that touch other countries but also to identfy where the corruption proceeds are hidden. In Brazil, for example, cooperation agreements between prosecutors and defendants led to unprecedented asset recovering outcomes in the Brazilian largest anticorruption investigation (Lava Jato). Those cooperation agreements have been streamlining the return of the assets to Brazil, because they waive the Brazilian cumbersome court proceedings.

  5. One possible way CAPAR could develop more naturally and adopt your suggestions with less bureaucracy might be by creating a formal regional anti-corruption task forces or even start having informal law enforcement exchanges. Both these structures might naturally achieve many of your suggestions with less of the bureaucratic hassle than if each of your suggestions were pursued in a vacuum.

    Certainly with a formal task force, any MLA process could be expedited with a shared understanding of all the task force members’ laws. Additionally, in a formal task force sharing best practices would occur naturally and a universal framework for sensitive asset recovery could be implemented. Similarly in an informal law enforcement exchange officers from one state would be able to brief their best practices and observe the best practices of law enforcement in the countries where they are sent on rotation. Furthermore, while having an informal exchange might not officially help with an MLA process, but merely by having a point of contact on the ground in the other country, who hopefully has friends in the law enforcement organization where they are embedded, might be able to informally expedite the MLA process and give investigators a better sense of that country’s capabilities. At the NYPD our international liaison program helped us in this manner and also assisted the law enforcement of other countries tremendously because while we and our partner countries always filed MLA requests our liaisons and their liaisons could make sure we could best position ourselves to rapidly and accurately respond to these requests.

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