With the aim of sharing its experience and knowledge on the issue of ill-gotten gains and consolidating the network of international civil society organisations working against them, Sherpa organised a training course from 27 to 30 November 2023 in Pretoria, South Africa.
This training was organised in cooperation with the African Coalition for Corporate Accountability (ACCA), a coalition of over one hundred organisations from 32 African countries whose aim is to support communities and individuals affected by corporate activities, and with Finance Uncovered, training and supporting journalists and activists around the world to improve the quantity and quality of investigative stories reporting on illicit finance.
The training brought together 10 representatives of civil society organisations and 2 investigative journalists from 8 countries in East and Southern Africa.
After the training sessions organised by Sherpa in West Africa on corporate responsibility in cases of human rights and environmental abuses, as part of the legal caravans project and the Vigilance project, this event is the first organised by the association on the subject of corruption on the continent.
Why a training course on ill-gotten gains in the region?
The concept of ill-gotten gains is the accepted way of describing the complex phenomena that enable political figures to accumulate wealth from the misappropriation of public funds or corruption in their countries of origin. These resources, which are essential to populations that are often weakened by the lack of good governance and public services in these countries, are diverted to accumulate wealth that benefits private individuals in other countries, including France. These misappropriations are made through investments that pass through traditional financing channels, which highlights the responsibility of other players, in particular all the intermediaries involved in making these investments.
More than 20 years ago, the United Nations Convention against Corruption was adopted, as the first binding international legal instrument to combat corruption. Ratified by nearly 160 States, including all African States with the exception of Eritrea, the Convention establishes the principle of the restitution of ill-gotten gains by States that receive such illicit investments. However, the identification of ill-gotten gains, the fight against misappropriation and the restitution of such assets to the populations looted remain inadequate, and many obstacles prevail, preventing civil society from taking effective action against the phenomenon.
Yet, civil society organisations and investigative journalists play an essential role in this fight. These organisations strengthen their countries’ legal frameworks through advocacy work and help to identify and trace assets resulting from the misappropriation of public funds. In some legal systems, these actors can also take legal action to ensure that these assets are seized and returned to the affected populations, thus playing an active part in the judicial fight against ill-gotten gains. Finally, civil society actors have a fundamental role to play in the restitution of stolen assets, a role recognised by the United Nations Convention, to ensure good governance of the restitution and the allocation of assets to programmes that benefit the population. These actions underline the need for civil society players to take up the issue and consolidate strong networks.
Sharing experiences in ill-gotten gains cases
For more than 20 years, Sherpa has been a pioneer in the fight against corruption. With its partners, Sherpa initiated the very first proceedings in France concerning ill-gotten gains. These cases, known as the “saga of ill-gotten gains”, gave rise to groundbreaking decisions in France (1) and internationally, leading to changes in the legal framework. In addition to the recognition of the vital role of civil society in this fight, which led to the adoption of a law creating an administrative approval for associations wishing to take legal action against corruption, France also adopted the principle of the restitution of assets “as close as possible to the people” in a law passed in 2021.
In this context, the aim of the workshop was to explore avenues for a collaborative approach in the fight against ill-gotten gains, taking advantage of the opportunities created by progress in the French legal system, and drawing inspiration from them for action in other legal systems.
The training took place over four days. Drawing on her own experience and the legal actions initiated by Sherpa, Chanez Mensous, Advocacy and Litigation Manager, shared keys and tools on the practicalities of building a case. She began by presenting an overview of cases of ill-gotten gains around the world and in France, mentioning historic international lawsuits such as the Marcos case in the Philippines and the Abacha case in Nigeria, as well as cases brought by Sherpa such as the Obiang case in Equatorial Guinea, the Bongo case Bongo case in Gabon and the Sessou-Nguesso case in Congo. She also looked at the use of criminal law in the French legal system to deal with financial crimes. She described the types of complaint that can be made, legal grounds that can be invoked, stages of the procedure and the many obstacles encountered during investigations and legal proceedings, and ways of overcoming them.
A full day of talks by Simon Bowers, Investigations Editor at Finance Uncovered, focused on the conduct of investigations, difficulties associated with sophisticated financial schemes, tax havens, money laundering and banking secrecy. He also discussed the role of investigative journalists and whistleblowers, and the importance of information disclosed by the media.
The final day was devoted to two major issues: the liability of financial intermediaries and the restitution of assets. The latter also raised the question of how to define the victims of corruption, an issue that is too often ignored. This question opens the way to fundamental issues such as the definition of harm and damage – hence the importance of considering the link between human rights and corruption – and, ultimately, compensation.
The training was an eye-opener, particularly on the legal and strategic litigation aspects (…) and a starting point to enrich and reorientate our work. (…) There is not just one way to tackle illicit financial flows, we can be creative
Working together as a network
During the course, participants worked over several days on a fictitious practical exercise, in order to apply the new knowledge acquired and to encourage exchanges. Discussions based on different legal cultures helped to identify opportunities for convergence between different legal systems to effectively combat ill-gotten gains.
The forum also provided an opportunity to discuss key issues in the fight against corruption, such as tax evasion, difficulties in accessing information, standing of NGOs before courts, strategic lawsuits against public participation (SLAPPs), and the link between financial crimes and environmental crimes.
The training methodology employed was very interactive. The content was relevant to my work and making connections across the organisations will be helpful going forward (…) [I get] a better understanding of complex illicit flows and a better grasp of the different ways we could possibly deal with these issues legally
At the end of the week, everyone concluded the need to continue networking – at regional and international level and in different jurisdictions – to strengthen the capacities of international civil society in the fight against corruption.
