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Justice for Sale or Legal Realpolitik? The Special Criminal Court Sets Legal Precedent in the Yves-Michel Fotso Embezzlement Case

Tuesday 29 January 2013

By Dibussi Tande

On January 14, 2013, Cameroon’s Special Criminal Court created legal precedent when it dropped all charges case against Yves-Michel Fotso, the former Camair Director, who was on trial for embezzling 230 million Francs CFA from the Cameroon Airport Management Authority (ADC).

The charges were dropped midway into the trial after Fotso refunded the 230 million Francs CFA he was accused of embezzling. His co-accused, Roger Ntongo Onguene, the former Director General of ADC, who was charged with embezzling an additional 316 million Francs CFA from the authority, is now left to face the music alone.

The ADC case (State of Cameroon and the Cameroon Airports Authority vs. Yves-Michel Fotso and Ntongo Onguene) was the first to be heard by the Special Criminal Court which became operational in October 2012. Set up by Law No.2011/28 of 14 December 2011 amended by Law No.2012/011 of 06 July 2012, the Special Criminal Court is competent to:

Hear and determine matters of misappropriation of public property and related offences where the value of the loss is at least fifty million 50,000,000 francs CFA as provided for by the Penal Code and International Conventions ratified by Cameroon.

The case against Fotso and Onguene dates back to 2001, when, according to the indictment, Onguene (then the Director-General of ADC) deposited airport usage license fees from Camair totaling about 550 million Francs CFA into a secret bank account in Paris. 230 million Francs CFA of the funds were subsequently disbursed to Beith Ltd and Sonashi, two companies owned by Fotso (then General Manager of Camair), while Onguene himself allegedly gobbled up 316 million FCFA.

During the trial, Onguene claimed that it was his boss, the late Tsanga Abanda, who was Minister of Transport at the time, who had asked him to open the ADC account in Paris to pay experts who were handling insurance issues for the Camair Boeing 747 which had overshot the runway in Paris Roissy-Charles de Gaulle airport in November 2000. According to Onguene, it was the late Christopher Nsalai Tsanga Abanda’s successor, who ordered that the 230 million Francs CFA be disbursed to Yves-Michel Fotso. He also claimed that the money that he supposedly swindled was used to settle Joseph Tsanga Abanda’s hospital bills, along with those of Christopher Nsalai’s wife. A former ADC employee corroborated his story, claiming that he personally transferred funds to Abanda. The prosecutor nonetheless argued that there was no way to prove these claims this since both Ministers were conveniently dead...

When he took the stand, Fotso said the funds that had been deposited in the Paris account were airport license fees that Camair had paid to ADC, insisting that he never asked for money from anyone and that he accepted the 230 million FCFA in good faith: «Cet argent représentait une partie des redevances aéronautiques. Je n’ai jamais rien demandé. J’ai reçu les 230 millions de F de bonne foi.» Whether the money was a bonus or payment for services rendered remains unclear...

Fotso then offered to refund the 230 million Francs CFA in exchange for his freedom. “I have already been sentenced to 25 years in prison [in the Albatross case], and I have no desire to appear again before the court. I want guarantees that the case against me will be dropped once I refund the Corpus delicti."

In November 22, 2012, Fotso effectively reimbursed the 230 million Francs CFA (135 million Francs CFA in cash, and the remainder by check), then formally requested that the charges against him be dropped in compliance with article 18 of the law setting up the Special Criminal Court. According to this controversial article, the Minister of Justice may authorize the court to drop all charges against an accused in the event of restitution:

Section 18: (New) (1) Where the corpus delicti is restituted, the, Procureur General of the Court may, subject to a written authorization by the Minister in charge of Justice, enter a nolle prosequi against prosecution prior to committal before the trial Court.

(2) However, where such restitution is effected after committal to the trial court, a nolle prosequi may be entered against the proceedings prior to any judgment on the merits and the Court seised shall inflict the forfeitures under Section 30 of the Penal Code and mention made in the criminal record.

(3) Modalities for the restitution of the corpus delicti shall be fixed by rules and regulations.

(4) The entry of a nolle prosequi shall have no effect on any eventual disciplinary measures.

On December 27, 2012, Laurent Esso, Minister of Justice and Keeper of the Seals, signed the note authorizing the Special Criminal Court to halt all proceedings against Fotso. And on January 14, 2013, the court informed the parties that all charges against Fotso had been dropped. With this decision, Ntongo Onguene was now left to face the music alone.

Justice for Sale?

The decision of the Special Criminal Court was received with mixed feelings by the public. Critics lashed out against this “justice for sale”, against a justice system tailored for the rich who could buy their way out of a well-deserved jail term [ See for example, "Cameroon, where one can legally pay their way out of jail." Some even compared the Special court’s modus operandi to the selling of indulgences by the early Catholic Church.

Others saw the Special Criminal Court as encouraging rather than discouraging the pillaging of public funds by rapacious state officials: “People can now take public funds, invest in lucrative deals and then refund it if they are caught... It is sending a very bad message. It is almost as if people were being allowed to buy off the silence of justice” [See Anti Corruption law in Cameroon by Radio Netherlands]

Complaints about Special Criminal Court’s money-for-freedom approach are not new. In fact, they first emerged even before Pariliament passed the law setting up the court. In 2011, for example, one lawyer described the court as a major setback for the ideals of justice, telling Jeune Afrique that: “If proceedings are halted against individuals who refund stolen funds, then they are being rewarded for embezzlement... the restitution of the corpus deliti should not erase the crime.”

Public disquiet over the landmark decision in the Fosto case turned into consternation when it was revealed that just four days after the Special Criminal Court let Fotso off the hook in the ADC case, he had paid an additional 886 million Francs CFA (886.752.217 million Fcfa to be exact) to the national treasury in a bid to have the Minister of Justice vacate the 25-year sentence he received in the Albatross case. [In the Albatross case, which is now on appeal, six individuals, Marafa Hamidou Yaya, Yves Michel Fotso, Assene Nkou, Jean Louis Marie Joseph Chapuis, Sandjon Paho Geneviève Paule Gisèle and Nkounda Julienne, were accused of having jointly embezzled 29 million US dollars (about 24 billion Francs CFA) and handed a range of prison sentences on September 22, 2012.]

Critics of article 18, who are found in all walks of life in Cameroon, insist that the only system that is morally right and legally tenable is one that is based exclusively on individual responsibility and punishment. No more, no less.

Realpolitik Considerations

Supporters of article 18 take a diametrically opposed stance, reminding critics that the Special Criminal Court was specifically created to (1) speed up the process for hearing and determining major embezzlement cases and, most importantly, (2) to facilitate the recovery of embezzled state funds. They argue that the court is therefore driven by legal realpolitik considerations rather than by moral principles, and as such, it strives to strike a balance between the search for justice, in the purist sense, and its legal mandate to recover looted funds.

Supporters of the court point out that while regular courts were unable to recover any significant funds since the launching of Operation Epervier in 2004 – even though they have meted out sentences totaling over 200 years – the Special Criminal Court has recovered nearly three billion Francs CFA in just the last month alone.

Even legal experts such as Prof. Ndiva Kofele-Kale who has been one of the leading advocates for the establishment of international legal instruments for holding state officials individually liable for acts of fraudulent enrichment (which he terms Patrimonicide), concede that sometimes, the recovery of embezzled funds may involve some form of limited amnesty. As he argued in a 2006 article on creative responses for recovering embezzled national funds:

It is worth asking whether a nation-wide campaign organised to combat corruption is well served with a Titus Edzoa locked up for 15 years in Kondengui while the billions of public funds he allegedly misappropriated remain un-recovered.

What good is served by dismissing the General Manager of FEICOM while allowing him to hold onto the FCFA 35 billion he is alleged to have embezzled?

It would seem that in its anti-corruption strategy, Government has not placed sufficient emphasis on the recovery side of the problem. Faced with a national crisis, Government should not only rely on orthodox strategies in combating corruption but should dare to be creative!

Professor Kofele-Kale was criticized in some quarters for advocating for a policy that rewarded bad behavior. In a subsequent interview with Scribbles form the Den, he responded to his critics with what is arguably the most reasoned argument in support of the Special Criminal Court’s current non-traditional approach to dealing with alleged embezzlers:

Legal purists will find the use of amnesty in corruption cases offensive because it goes against the goals of deterrence, criminal responsibility, and the removal of guilty officials from positions where they are likely to continue engaging in corrupt practices. I do not believe, however, that criminal prosecutions alone will resolve the full range of problems spawned by official corruption. Some form of limited or general amnesty will have to be used alongside criminal prosecutions as part of negotiations for the return of embezzled funds. The lessons learnt from 40 years of recovery efforts demonstrate the limitation of conventional legal methods in the war against grand corruption. Given the staggering amounts of national wealth lost annually through corruption, there is urgent need to come up with creative and innovative solutions for recovering and repatriating some, if not all, of these illicit assets. Victim states should not hesitate in exploring non-traditional approaches such as the debt-local currency swap program I have proposed in their recovery efforts. Trade-offs will have to be made between using scarce resources on prosecutions and punishment which hold out no promise of recapturing embezzled wealth or focusing these limited resources to recover and repatriate the peoples’ money. In the final analysis, Cameroonians will have to make this call.

While Waiting for a Better Alternative…

Without doubt, the law governing the Special Criminal Court raises lots of questions and concerns that are both legal and non-legal; for example, it obviously violates the principle of the separation of powers and the independence of the judiciary by giving the Minister of Justice, a member of the Executive branch, the powers to unilaterally halt court proceedings against an accused; it tacitly repudiates the presumption of innocence by operating on the assumption that anyone brought before it is guilty and, therefore, has to be “encouraged” by all means necessary to pay up in return for their freedom, even before incriminatory and/or exculpatory evidence has been presented in court – not fundamentally different from an underworld shakedown. In addition, the fact that many of the Epervier cases seem more like political score settling than real attempts at unearthing and punishing embezzlement actually makes a mockery of the court’s raison d’être with individuals been forced to refund funds that they never took and don’t have …

In spite of all these legitimate concerns and reservations, which the legislator should have to address sooner rather than later, the Special Criminal Court remains the best bet at the moment for recovering embezzled national wealth. Now, what happens to that wealth when it makes its way back into the national treasury is another matter altogether. As blogger Chofor Che asks:

What happens to the recovered money? Is there a special account where this money will be put to be utilised for specific projects or defunct projects? Has the special court or the central government put measures in place to ensure that this money is redirected to services that were deprived of these funds? What steps are being taken by the state to ensure that such amount of money is not siphoned by corrupt officials again?

That is definitely a discussion for another day…

See online: Justice for Sale or Legal Realpolitik? The Special Criminal Court Sets Legal Precedent in the Yves-Michel Fotso Embezzlement Case

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