By Mamadou Ismail Konaté * and Bakary Diallo *, Attorneys to the Court
Everyone knows that in Africa, the heart of the disintegration of the public spirit is at the top of the state and in its wheels. Poor governance and impunity are characterized by the non-respect of the rule of law and the violation of the law and the rules. The unilateral modification of pre-existing norms by rulers with the aim of satisfying their personal and selfish interests is not surprising. On the contrary, this way of doing things is rather usual.
That is why when in 2010, for the first time, the so-called Bolloré affair was raised concerning the conditions under which Vincent Bolloré obtained the concession of two ports, the first in Conakry in Guinea, and the second in Lomé. in Togo, no one could predict that these operations could be for him the source of these current legal troubles.
In such a context, the announcement of the news concerning him was felt like a thunderclap: the powerful industrialist, Vincent Bolloré, twelfth fortune of the hexagon, was placed in custody on the premises of the Office Central Office for the fight against corruption and financial and tax offenses (OCLCIFF) in Nanterre, then indicted the following day, April 25, 2018, for “bribery of foreign public officials with public authority”, “complicity with breach of trust “and” forgery and use of forgery “.
The presumption of innocence is valid for him as for any other, it is not a question here of pronouncing on his possible guilt. But, from now on, this indictment can inspire some brief reflections.
Beforehand, it seems useful to emphasize the feeling of weariness and resignation of the African populations who, rightly or wrongly, perceive these businessmen, moreover, as belonging to a caste of privileged people that nothing can reach. So it is not superfluous to wonder if the legal proceedings initiated against one of them do not come to sound the death knell of a “Françafrique” harmful and toxic?
The death knell of a harmful and toxic Françafrique?
What about the fate reserved for African Heads of State who may now be concerned by the prosecution for acts of “bribing foreign public officials with public authority”? Can they, should they always feel safe, while at the same time, their “benefactors” businessmen are not really spared any legal proceedings?
Like the former President of the French Republic, Nicolas Sarkozy, himself in custody in the investigation into suspicion of Libyan financing of the presidential election campaign of 2007, should they fear in turn prosecution for illegal financing of their electoral campaigns, passive bribery and concealment of misappropriation of public funds, including when it takes place in Africa, in the tropics?
These questions are not really lacking interest even under the African sky!
Impunity and bad governance are two sides of the same coin. They breed both economic crimes and financial malpractices that are unbearable. They are at the root of underdevelopment, of the economic slump that impairs unity and social cohesion. The state can not, in such a context, best ensure its role of social regulator, equitable redistribution of national wealth and stabilizer of peace.
One thing is sure, at the height of the height of the “Françafrique”, the French billionaire today worried, would not have been treated as it is today, delinquent. On the contrary, he would have been celebrated as a hero.
As with all his African activities, Mr. Bolloré has always played with his personal relationships and his networks in order to lean in his favor the chances of winning in the awarding of public contracts: “Ministers, we all know them there. They are friends. So, from time to time, I will be clear: when they are no longer ministers, they are given the opportunity to become a director of one of our subsidiaries. It’s to save their face. And then, we know that one day they can become ministers again “, had declared, in 2008, Gilles Alix, general manager of the group Bolloré, with the newspaper Libération.
In Gabon, the group, which covets the giant iron mine Belinga, soon exploited by the Chinese, did not hesitate to place the daughter of President Omar Bongo, Pascaline Bongo, at the head of its subsidiary Gabon Mining Logistics. With these multiple supports, Bolloré evolves in good harmony with the friendly powers, in the purest tradition of “Françafrique” unbearable for African populations sore.
Difficult to unravel the multiple connections that exist between the group, worthy heir of colonial trusts and networks of the “Françafrique”, and political leaders both African and French. Like other conglomerates, it has benefited from the support of public authorities on both sides in its conquest of the continent’s markets. There are many prominent French politicians who visit Africa regularly to lobby their counterparts. They are unfortunately not framed by any code of business ethics. No prosecutor to sift their attitudes, behaviors and actions of African business lobbyists.
In addition, the Bolloré Group’s African activities indirectly benefit from certain public aid programs for infrastructure development and, directly, public contracts.
The corruption habits established and considered normal on this continent end up being associated with cultural characteristics. These justifications for practices that are detrimental to improving the well-being of the population, and even more so to the poor, are in no way cultural. They give a bad image of the countries of the region and attack the very ethical bases of these societies which legitimately aspire to development and democracy.
Public orders, be they large infrastructure projects such as ports, highways, roads, electrical installations, telephone, the construction of public institutions or their management are markets highly coveted by investors because of the considerable financial flows generated.
However, the corrupt practices of public officials through these various public orders weaken the States and jeopardize their stability. They constitute a scourge that hinders any process of economic and human development. The countries of the region are losing precious growth points every year and hundreds of billions of CFA francs because of the many and varied forms of corruption.
In truth, the Bolloré myth, in French-speaking Africa, seems to be closely linked to France’s almost incestuous equivocal relationship with its former colonies since independence. Vincent Bolloré has become, despite himself, and for millions of Africans, the most emblematic face of the “Françafrique”. Languages are becoming more and more relaxed about the businessman and his practices since the beginning of his legal troubles. Times have changed and those who thought themselves untouchable simply because they would operate in key sectors of the economy in Africa are now, in accordance with the law, treated like any other person. The plateau of the judicial balance does not seem to invariably lean on the same side. This may be the end of the long and scandalous impunity enjoyed by the main actors of the “Françafrique” of fraud and corruption.
Clearly, the days when Paris pretended to ignore or even encourage the very unsavory practices of French businessmen acting in Africa who did not shrink from any possible combination to ensure and maintain the circulation of dirty money seems to more and more bygone. Even if, in this respect, the example of the “djembe filled with money” is not such a distant memory, if we believe, in any case, Robert Bourgi, who, in 2011, described the circuit African occult financing for the benefit of a French head of state. Nothing really amazing in this particular world where money and politics went together for a long time.
The continent suffers dramatically from this collusion and it is the national budgets that suffer the most, while the political leaders in power do not cease to hold great speeches against fraud, corruption and misappropriation of all kinds.
Constantly proclaimed by the majority of the successors of General De Gaulle to the presidency of the French Republic, one can nevertheless wonder if it is not finally of the French justice that will come the salvation of Africa as regards effective fight and resolute against corruption and the end of “Françafrique”.
The French magistrates seem to be the only ones to act. While their counterparts in Africa are satisfied with an unsustainable passivity, even as businessman Vincent BOLLORE is suspected of having financed the electoral campaign of African leaders in Africa who subsequently would have granted him, without substantial financial contribution from the port concessions.
In this respect, the Bolloré case is also full of lessons.
In the first place, so far France has never definitively condemned a company for active bribery of foreign public officials, even though French companies had also been investigated and, where applicable, supported convictions abroad for similar facts. The BOLLORE case is the first resounding case of the French justice since the entry into force of the Law n ° 2016-1691 of December 9th, 2016 relating to the transparency, the fight against the corruption and the modernization of the economic life known as Loi Sapin 2.
Secondly, this case comes to the fore, the bankruptcy of an African judicial system on pay, unable to detect and deal more effectively with corruption even when clear cases give it the opportunity and the framework for cooperation. strengthened judicial system is totally open and dedicated to them.
1. A French legal and cultural revolution needed in a context of transnational and cross-border corruption
The prosecution of Vincent Bolloré by the French courts is based on the Sapin 2 law. This is a transposition into French law of the agreement of the Organization for Economic Co-operation and Development (OECD) to fight against corruption. This agreement was signed in 1997 and entered into force in 1999. Baptized with reference to the first Sapin I anti-corruption law of 1993, the Sapin II law is in line with anti-corruption measures in the United States and the United Kingdom. level of the best international standards.
After the establishment, in 2014, of the National Financial Office, responsible inter alia for investigating breaches of probity (corruption, influence trafficking, equal access to public procurement, favoritism), the adoption of the law Sapin It was undoubtedly a major turning point in the fight against corruption and trading in influence.
From the point of view of international organizations, the French system of repression of transnational corruption was not satisfactory. France was regularly the subject of very strong criticism from the OECD and some NGOs, because of its “laxity” vis-à-vis large companies that were also implicated in cases of fraud and international corruption. France had to redouble its efforts in this area to prevent the impunity of French companies operating abroad. Adopting a new dynamic was more than necessary while several French groups saw procedures for corruption to multiply, involving senior leaders, like Tom Enders, boss of Airbus, or Bruno Laffont, former CEO of Lafarge, kept in sight for group activities in Syria and Alstom.
It is in this context that the Sapin II law has been intended to mark a veritable legislative turning point in the fight against corruption. It created a French anti-corruption agency, extended the extraterritoriality of corruption and influence peddling prosecutions and introduced a complementary penalty of compliance for individuals and companies convicted of these offenses. The text also introduced the obligation – for some companies – to implement a compliance program and now allows the legal entities involved, particularly for acts of corruption and trading in influence, to conclude a court agreement. of public interest, comparable to existing mechanisms in the United States or the United Kingdom and intended to avoid criminal trial and, where appropriate, conviction.
French justice is now better armed. But beyond this legal device, it is the mentalities that seem to have changed as well. Today, a preponderant place is made to whistleblowers, internet and social networks make that the social and media pressure is permanent and multiplies itself. Nothing stays hidden for a long time. The wind seems to have turned.
The indictment of Vincent Bolloré and the proliferation of procedures targeting companies for reasons of corruption or fraud shows that the French justice has taken this problem head-on. It was time for French justice to rise to the challenge.
Because of its general scope and its different implications, corruption is no longer just a local issue that must be contained by exclusively national laws and mechanisms. On the contrary, it goes beyond borders and becomes a concern of the entire international community. Corruption is now more than ever a serious criminal phenomenon that plagues African economies and hampers their development. From this point of view, the perpetuation of certain practices of businessmen in collusion on the African continent with politicians is a real anachronism to the evolution of the world and mentalities.
Corruption is without a doubt the most oppressive challenge facing Africa’s governance and development. It has a devastating and corrosive effect on the justice, progress, stability and development of the continent. It is an impediment to economic growth because it discourages foreign investment, distorts resource allocation and market competition, raises business costs and reduces the net value of public spending. It also reduces the quality of public and service infrastructure and the volume of tax revenues and encourages diversion and misallocation of scarce resources. In the political arena, corruption undermines the rule of law, respect for human rights, accountability and transparency, and weakens public institutions. This in turn tarnishes the public legitimacy of the government and compromises good governance. The cost implications of corruption are deleterious as they contribute to worsening income inequality, poverty and negatively affect the moral values of society. Corruption is a challenge to sustainable economic development, peace and good governance.
However, the chronic inaction of African states in the fight against corruption is well established, it is the most visible sign of the fragility of the structures of these states and the obvious involvement of political actors.
2. The existence of a legal arsenal of repression of corruption in African states
Like most French-speaking African states, Togo and Guinea are signatories to many international anti-corruption instruments, including:
– the United Nations Convention against Corruption, which entered into force on 14 December 2005 ratified by Togo on 6 July 2005 and by Guinea on 29 May 2013;
– the African Union Convention on Preventing and Combating Corruption ratified by Togo on 14 September 2009 and by Guinea in 2012;
– the Economic Community of West African States (ECOWAS) Protocol on Corruption ratified by Togo on 14 September 2009.
All of these conventions contain provisions relating to the suppression of active and passive bribery of domestic public officials, foreign public officials or officials of public international organizations in securing a market for international trade.
In Guinea, Law L / 2017 / 041AN of 04 July 2017 on prevention, detection and punishment of corruption and related offenses governs the legal and institutional framework of the fight against corruption. It applies to acts of corruption and related offenses.
In Togo, the Penal Code criminalizes bribery of domestic public officials (Article 594), foreign public officials and international civil servants (Article 597) and trading in influence (Article 608). These offenses follow the definition given by French law. Thus the fact for any person depositing the public authority or charged with a public service mission or having a public elected office or any agent of the State to solicit or approve, without right, directly or indirectly, offers, promises, gifts, presents or any other advantages constitute an act of passive bribery. It is the same if these acts are committed by any magistrate, juror or any other person sitting in a judicial formation, any official in the registry of a jurisdiction, any arbitrator or any expert appointed either by a jurisdiction, or by the parties or any person entrusted by the judicial authority with a conciliation or mediation mission. In addition, the fact that any person offers at any time offers, promises, gifts, presents or benefits of any kind, for itself, for others or an entity to obtain from one of the above-mentioned persons, the accomplishment or the abstention of an act of his function, or to yield to the requests of these people constitutes an act of active corruption.
It appears that Guinea and Togo, places of commission of the offenses, have the legal arsenal necessary to sanction all the persons implied in the facts of active or passive corruption, that they are national public officials or foreign investors under the principle of the territoriality of the criminal law.
From here to see the actual prosecution, we can dream for the moment as the judges seem to be the opposite of such an approach and the public opinions, alerts on their immediate need to lodge, to feed and to heal . The muzzling of justice and its corollary, impunity are organized and assumed in all places of power of these states and their circles of financial powers. The report is as implacable as it is regrettable. The fight against corruption necessarily involves the courts of foreign states.
African leaders are reduced to using the fight against corruption as a political weapon by carrying out blackmail, investigations, audits directed only against their political opponents to obtain their allegiance, seek to neutralize them, discredit them, to exclude major elections or to imprison them in case of resistance in a relative indifference of an international community not interested in what appears to them as details.
It is time to move from the passive stance to the act of rupture, gaping with the fight against corruption and impunity.
Fifty years after independence, Africa remains the poorest continent on the planet, the “social case” of the international community, the receptacle of a plethora of plagues and crises: food, energy, environmental, security (terrorism , ethnic war, political violence), shortage of running water, housing. There is a new anti-democratic, socially altered and economically anemic internal order.
Eva Joly, the former magistrate who had investigated politico-financial issues such as the Elf affair, had she not drawn up in her day a rather dark picture of the black continent in these terms “political independence is a masquerade in west Africa. (…) There, it is normal corruption, nepotism, war, violence. There is normal the presence of the French army (…) There, it is normal the capture of natural resources. Besides, everyone does the same thing. ”
From this it follows that the overhaul of the entire governmental and administrative system is necessary. It should not be so difficult, as long as we want it deeply that we engage in the organization of the State so that each parcel of power is corroborated by a corresponding parcel of responsibilities and that the sanctions can almost automatically reach the authors when a fault is found in the distribution of the service.
To consider such a reform of our states will not be easy. There will be many resistances, because it is infinitely more pleasant for those who govern and administer to live under the current regime than under another where any fault would result in a precise and rapid sanction.
Beyond the petitions of principle, if Africa wants to heal very serious wounds inflicted by those who claim to defend it, it is essential that it be organized immediately to give citizens the impression that they are governed according to the rules of democracy.
About the authors
Aged 54, Business Lawyer, registered with the Bars of Mali and Paris, former member of the Council of the Bar Association of Mali, former President of the OHADA National Commission for Mali, and also Expert of the As OHADA led the review of the Uniform Act on Collective Procedures and the Clearance of Liabilities, Mamadou Ismaïla KONATE was Minister of Justice and Human Rights, Minister of Justice of Mali. July 07, 2016 to November 27, 2017, date of his resignation from the Government.
As a lawyer, he is the founding partner of the largest Lawyers’ Office of Mali “JURIFIS Consult”, a professional civil society based in Bamako, Mali, Conakry, Guinea, Douala, Cameroon and Paris. , in France. Mamadou Ismaïla KONATE has been the Council of many companies and companies in Mali, Africa, Europe, America and Asia, operating in sectors such as industry, construction and public works, telecommunications and telephony, hospitality , mines, services. Mamadou Ismaïla KONATE is also an arbitrator, registered in the centers of the Common Court of Justice and Arbitration (CCJA) (Abidjan), the Center for Conciliation, Arbitration and Mediation of Mali (CECAM) (Mali) and the Permanent Court of Arbitration and Mediation (CPAM) (Cameroon).
Expert of the Organization for Harmonization in Africa of Business Law (OHADA), Mamadou Ismaïla KONATE is a member of several Organizations and Corporations of the civil society, Malian and African. A fierce human rights activist, he defends the rights of the weakest and most destitute.
Tribune, outstanding debater and great speaker recognized for his eloquence and perfect command of the language, Mamadou Ismaïla KONATE was laureate of the contest of eloquence said secretaries of the Conference of the stage of the bar of Paris in 1997. The speech which he pronounced at the time on the theme “The Constitutions are they made to be violated” was a masterpiece according to the Dean Georges VEDEL, prominent French constitutionalist who declared him “the Master of masters” of the word of the contest of a night.
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Bakary Diallo is a lawyer with proven expertise in Dispute Resolution Law of the Uniform Acts of OHADA, European and International Litigation, Contract Law and OHADA-type Business Law. He has been involved and still advises many national and foreign structures and companies operating in the mining, energy, transport, agriculture and construction sectors.
He has extensive experience in Recovery Procedures and Execution Ways and the resolution of complex legal issues and in support of business creation. Bakary Diallo has participated and is still involved in the writing and / or proofreading of many texts, at the community level as jurisconsult.
PhD in Private Law from Paris I – Sorbonne University, Bakary Diallo is currently a lecturer at the University of Paris I – Sorbonne. He teaches in particular the law of the contracts and the law of the companies. A lawyer registered with the Paris Bar, Bakary Diallo works in France as an independent lawyer. He has since 2008 joined the Professional Civil Society Lawyers JURIFIS CONSULT as External Collaborator in charge of the Legal Consultancy – Legal Opinion – Investments and Participation. Bakary Diallo has published numerous scientific works and is responsible for the jurisprudence chronicle of the PENANT Collection (Quarterly Review of African Law) since 2004.
