Och-Ziff’s African (formerly lucrative) nightmare

Och-Ziff Capital Management Admits To Role In Africa Bribery Conspiracies And Agrees To Pay $213 Million Criminal Fine

From the U.S. Attorney’s Office for the Eastern District of New York: “Och-Ziff Enters into 3-Year Deferred Prosecution Agreement; Och-Ziff Subsidiary Pleads Guilty to Conspiracy to Violate the FCPA”

BROOKLYN, NY – The U.S. Attorney’s Office for the Eastern District of New York and the Criminal Division, Fraud Section are prosecuting a New-York alternative investment and hedge fund manager, Och-Ziff Capital Management Group, LLC (Och-Ziff), which has agreed to pay a $213 million criminal penalty and enter into multiple criminal resolutions with the Department of Justice to resolve charges related to widespread bribery of officials in Libya and the Democratic Republic of Congo.  As part of the resolution, Och-Ziff, the publicly traded parent company, entered into a three-year deferred prosecution agreement (DPA) with the Department of Justice.  An Och-Ziff subsidiary, OZ Africa Management GP, LLC (OZ Africa), pleaded guilty to one count of conspiracy to violate the Foreign Corrupt Practices Act (FCPA).  Today’s guilty plea and proceedings in connection with the DPA took place before United States District Judge Nicholas G. Garaufis in the U.S. District Court for the Eastern District of New York.  Sentencing for OZ Africa has been scheduled for March 29, 2017, at 2:00pm.

U.S. Attorney Robert L. Capers of the Eastern District of New York, Principal Deputy Assistant Attorney David Bitkower of the Justice Department’s Criminal Division, William F. Sweeney, Jr., Assistant Director-in-Charge, Federal Bureau of Investigation, New York Field Office (FBI), and Richard Weber, Chief, Internal Revenue Service, Criminal Investigation (IRS-CI), made the announcement.

“Och-Ziff, one of the largest hedge funds, positioned itself to profit from the corruption that is sadly endemic in certain parts of Africa, including in Libya, the Democratic Republic of the Congo, Chad, and Niger.  Despite knowing that bribes were being paid to senior government officials, Och-Ziff repeatedly funded corrupt transactions.  One Och-Ziff employee was so bold as to order the removal of language from their African joint venture’s internal audit report that called for an investigation of suspected bribery payments by a business partner.  Today’s corporate resolutions, which include a more than $213 million criminal penalty and an independent compliance monitor, hold Och-Ziff accountable for placing profits above the law and will help ensure that the conduct brought to light here never happens again at this company,” stated United States Attorney Capers.

“This case marks the first time a hedge fund has been held to account for violating the Foreign Corrupt Practices Act,” said Principal Deputy Assistant Attorney General Bitkower.  “In its pursuit of profits, Och-Ziff and its agents paid millions in bribes to high-level officials across Africa.  By exposing corruption in this industry, the Criminal Division’s Fraud Section continues to root out wrongdoing of all types in the financial sector.”

“Gaining the upper hand in a business venture by engaging in corrupt practices is bribery in its purest form,” said FBI Assistant Director in Charge Sweeney.  “Doing so with the intention of influencing a foreign official in his or her capacity is nothing short of corruption.  In this scheme, payments of millions of dollars were paid out to senior officials within certain parts of Africa in exchange for access to profitable investment opportunities.  This type of behavior can’t and won’t be tolerated.  I commend the investigators and prosecutors who continue to work together at home and abroad to vigorously enforce the law within the confines of the Foreign Corrupt Practices Act.”

“Today’s plea and deferred prosecution agreement result from the unraveling of complex financial transactions orchestrated by Och-Ziff Capital Management Group, LLC and its subsidiary to facilitate illegal payments to foreign government officials,” said IRS-CI Chief Weber.  “IRS-CI will continue to investigate pervasive bribery schemes used by corporations in the pursuit of attractive international investment opportunities.”

Under the DPA, Och-Ziff admitted to multiple conspiracy charges in a four-count criminal information, including two counts of conspiracy to violate the anti-bribery provisions of the FCPA, one count of falsifying its books and records and one count of failing to implement adequate internal controls.  Additionally, OZ Africa pleaded guilty to conspiring to bribe senior officials in the Democratic Republic of Congo in connection with obtaining valuable mining concessions.  Collectively, Och-Ziff and OZ Africa agreed to pay a criminal penalty of $213,055,689, and Och-Ziff agreed to retain an independent compliance monitor for a period of three years.

The DRC Bribery Scheme

Between 2005 and 2012, a businessman operating in the DRC with significant interests in the diamond and mining sectors in the DRC paid more than one-hundred million dollars in bribes to DRC officials for special access to attractive investment opportunities.  In late 2007, Och-Ziff employees began discussions to partner with the businessman based upon his special access to these investment opportunities.  Between 2008 and 2011, Och-Ziff entered into several DRC-related transactions with this businessman despite the fact that at least two Och-Ziff employees knew, and a senior Och-Ziff employee believed it was likely, that the businessman gained access to these attractive investment opportunities by making corrupt payments to government officials.  Och-Ziff personnel funded these transactions understanding that Och-Ziff’s funds would be used in part to pay substantial sums of money to high ranking DRC officials to secure access to and preferential treatment for the investment opportunities.  In late 2008, after an Och-Ziff employee was alerted that an audit of the businessman’s records revealed payments for DRC officials, that employee instructed that any references to those payments be removed from a final report of the audit.  The businessman did, in fact, make corrupt payments to and for the benefit of DRC officials to secure the investment opportunities.

The Libya Bribery Scheme

Separately, but also beginning in 2007, a senior Och-Ziff employee engaged a third-party agent to assist the company in securing an investment from the Libyan sovereign wealth fund, the Libyan Investment Authority (LIA).  At the time of the engagement, the senior Och-Ziff employee knew that the agent would need to make corrupt payments to Libyan officials to secure that investment.  The agent was engaged without formal approval by Och-Ziff and without any due diligence conducted on the agent by Och-Ziff.  From February 2007, the agent worked on behalf of Och-Ziff to obtain an asset placement from the LIA, including setting up a meeting between the senior Och-Ziff employee and the Libyan official who was empowered to make investment decisions for the LIA.  In late November 2007, Och-Ziff received a $300 million investment from the LIA into Och-Ziff hedge funds.  Shortly thereafter, Och-Ziff entered into a consulting agreement to pay a sham “finder’s fee” of $3.75 million, knowing that all or a portion of the fee would be paid to Libyan officials in return for their assistance in obtaining the LIA’s investment.  The agent did in fact make corrupt payments to and for the benefit of Libyan officials to influence the LIA’s investment.

Internal Controls Failures and Falsified Books and Records

Further, Och-Ziff admitted that it knowingly and willfully falsified and caused to be falsified records related to its retention and payment of the agent in Libya.  The falsified records concealed the true purpose of the payments, which purported to be for consulting purposes, but which actually would be used for corrupt payments to Libyan officials in return for their assistance in obtaining the LIA’s investment.  Och-Ziff also failed to implement and maintain an adequate system of internal accounting controls designed to detect and prevent the misappropriation of assets by its employees, agents, and business partners.  As a result, the company failed to prevent bribe payments from being made in the DRC, Libya, as well as in Chad and Niger, where an Och-Ziff joint venture made mining-related investments.  For all the criminal conduct included in these resolutions, Och-Ziff reaped more than $210 million in illegal profits.

The Corporate Resolutions

The Department entered into this resolution, in part, due to Och-Ziff’s failure to voluntarily self-disclose the offense conduct and the seriousness of the conduct including the high-dollar amount of bribes paid to foreign officials and involvement by a high level employee within Och-Ziff.  Notwithstanding, Och-Ziff received a 20 percent reduction off the bottom of the U.S. Sentencing Guidelines range for its cooperation with the government’s investigation.    Och-Ziff also committed to continue to enhance its compliance program and internal controls, to cooperate with the Department in ongoing investigations, and to retain an independent compliance monitor pursuant to the terms outlined in the DPA.

*          *          *

In connection with the government’s investigation, Samuel Mebiame, a Gabonese national, was charged on August 16, 2016, by criminal complaint with conspiring to bribe foreign government officials to obtain mining rights in Chad and Niger, as well as Guinea.[1]  According to documents filed in court, Mebiame worked as a “fixer” for a mining company that was owned by a joint venture between Och-Ziff and a Turks & Caicos incorporated entity.  In that capacity, Mebiame paid bribes to high-ranking government officials in Niger and Chad to obtain the mining rights.  During the charged conspiracy, Mebiame repeatedly traveled to the United States to further the scheme, including to meet with coconspirators at the Plaza Hotel in New York and to start companies and open bank accounts through which he could receive international wire transfers from coconspirators.

*          *          *

In a parallel proceeding announced today, the U.S. Securities and Exchange Commission (SEC) filed a cease and desist order against Och-Ziff Capital Management Group LLC and OZ Management LP, whereby Och-Ziff agreed to pay approximately $199 million in disgorgement to the SEC, including prejudgment interest.  The total amount of the global resolution is thus approximately $412 million.

The FBI’s New York Field Office and IRS-CI’s New York office are investigating the case.  The department appreciates the significant cooperation and assistance provided by the SEC in this matter.  The Swiss Federal Office of Justice, the British Virgin Islands Central Authority, the Maltese judicial authorities and authorities in Jersey and Guernsey also provided assistance.

*          *          *

The case is being prosecuted by Assistant U.S. Attorneys James P. Loonam, Jonathan P. Lax, and David Pitluck of the Business and Securities Fraud Section of the U.S. Attorney’s Office for the Eastern District of New York, and Assistant Deputy Chief Leo Tsao and Trial Attorney James P. McDonald of the Criminal Division’s Fraud Section.  The Criminal Division’s Office of International Affairs provided significant assistance in this matter.

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Understanding the Context: AAF reviews U.N. Report “Measuring Corruption In Africa”

Understanding the Context: AAF’s Review of the U.N. Report entitled “Measuring Corruption In Africa: The International Dimension Matters”, by the United Nations Economic Commission For Africa, March 2016

 

By Peter O’Brien*

Economics and politics experience fashion changes at a pace that makes clothes designers envious. And, like the designers garments, some of “today’s problems” are resurrections of yesterday’s, cast in a different context. In the present decade, the buzzword across the globe has been “corruption”. It is thrown mostly at governments, though the already voluminous yet still rapidly mounting evidence of consistently corrupt practices by international firms, whether in finance or manufacturing, indicates that the private sector is at least as adept as anyone else, maybe more so.

In its Fourth Report on African GovernanceGovernance Review UNECA, the UNECA makes the invaluable contribution of seeking to stand back a little from the frenetic international competition in constructing corruption indices, from the “naming and shaming” game that has characterized recent years, and to place the issues in Africa within the political and institutional contexts of the countries of the continent. In so doing, UNECA performs a major service. As is often the case with significant studies, the Report is careful to begin at the beginning and immediately remind us of some basic truths.

The UN Convention Against Corruption does not attempt to define what it is. Why not? Because it is too polyvalent and evolving a phenomenon to make a single definition particularly useful. These features, polyvalence and rapid evolution, of corruption are especially striking in contemporary Africa, where transformations of the economic structure, the institutional landscape, the political environment, and the technological opportunities are such that any one-dimensional, static approach is condemned to irrelevance. This understanding, in turn, emphasizes that no “one size fits all” method will be of much use either in describing the challenges facing any particular African country nor in shaping the most helpful policies to meet those challenges.

The Report stresses that our expectations of how institutions and individuals should behave are altering very fast. This implies that to talk about “what is legal” is nowadays an outmoded way of grasping reality. Everybody is aware that the law permits all kinds of behavior that society at large does not sanction. The chasm between legality and ethics is large. In Africa, as elsewhere, civil society groups are seeking to close it while private enterprises in particular are using the law as refuge. African countries must use their own cultures and mechanisms to ensure that the law/ethics dichotomy does not worsen. This observation is especially pertinent when we reflect how in practice the international community is tackling corruption today.

The overwhelming emphasis seems to be on the design and implementation of tighter legal régimes, along with the use of technology and institutional structures to make corruption more difficult and/or costly to do. This is in essence a knee jerk reaction (KJR). Each time a gap is identified, and cases are found where corruption is occurring, a new KJR happens, with tighter laws, new procedures and so on. The game gets played at a higher level of sophistication, with higher financial and other resource costs, and presumably higher rewards for successful deception. It would seem that the KJR method has been adopted in the OECD context not only because of the technologically and legally sophisticated nature of most corruption there, but also because of the near collapse of ethical standards (indelibly described almost a decade ago by the Lebanese/French author, Amin Maalouf, in his now classic “Le Dérèglement du Monde”).

Does this approach make sense in the African context (or, for that matter, in other contexts)? The answer is probably yes and no. In certain instances the investment associated with a new KJR may pay off, in others not.  Yet it may also be possible to devise clever incentives, market based or otherwise, that encourage actors in Africa to behave in non-corrupt fashion. This is not so much a question of “rewarding honesty” as of highlighting the immense social and economic advantages, the stimulus to development, that can come from shaping an environment where all start to focus on the common good, as opposed to the individual gain. In policy terms, this is the kind of challenge that African countries may in fact have a comparative advantage in meeting.

The actors in corruption chains are many and varied. They encompass private and public bodies, profit making and not for profit institutions, local and international. Hence the governance challenges reach well beyond matters confined to governments. At one and the same time as African countries and institutions need to strengthen their capabilities, doubly so given the speeds of transformation across the continent, the numerous foreign groups operating in and with Africa need to reinforce the struggle against corruption rather than add to the problems. That reinforcement can come not only through the “passive” route of not deliberately creating corruption opportunities, but through the “active” channel of helping Africa to assess better its own special vulnerabilities and then find custom- made means of tackling them. As of now, we see plenty of “method mimicry” in which African countries import institutional methods used in OECD countries, as if the same sets of issues had to be solved. Some of this is useful – but it leaves plenty of territory uncharted.indices

Foreign private and public actors can both contribute. Overseas Development Assistance (ODA) exceeds 10% of GDP in 16 countries of the continent, while the Africa wide average is still as high as 2.7%. Whether that ODA Is bilateral or multilateral, whether it is project oriented or program oriented, the scope for improvement is large. Foreign companies, either those already present or new investors, must ensure that their business practices are much superior to what they have been. Non-profit associations must clean up their act. FIFA, an organization notorious for corruption, has a bad record in Africa. On 13 May it took the unprecedented step of electing a Senegalese lady, with no prior experience in the soccer world, as its new head of global oversight. Let us hope that this positive sign is a good omen for the future.

Just as there is a powerful international dimension to corruption in Africa, so there is an important segment which is cross border corruption (CBC). Given that the continent is seeking to bring together the numerous trading blocs and regional integration schemes into a single process, regulation and control of CBC will become increasingly significant. The Report demonstrates that, from a recent data base which has identified close to 1100 cases of CBC in the world, almost 24% of such cases occur in Africa. Most such cases involve appreciable amounts of money and, in all likelihood, serious economic impacts. They are in the realms of what the Report identifies as “Grand Corruption” and/or “State Capture”. No doubt the third category of “Petty Corruption” might contribute to CBC at the level of issuing licences or similar administrative measures. Nevertheless, CBC mainly relates to big issues.

The UNECA Report does not itself propose fresh measures of corruption. It steadfastly and sensibly refuses to engage in more compilation of indices. Indeed, it is at pains to underline the growing unease with many well-known measures. For instance, it notes that the inventor of the standard Corruption Perception Index, Johan Graf Lamsdorff, sought even as far back as 2009 to persuade Transparency International that the CPI was no longer especially helpful save as a means of ranking countries with regard to public sector related corruption.

Instead, UNECA shines the light on the need to examine policy towards corruption in the context of Africa’s complex patterns of development and its place in the world economy. This method requires plenty of hard work, with specific country analysis supplemented by attention to the CBC risks and the dangers of importing corruption through ODA, FDI and several other external channels. But that hard work will surely bring its rewards. It will be part of the ongoing struggle to create an encompassing and participatory development process in which the benefits of growth are far more equitably shared than has been the case till now. That process is one which can be sustainable, and will not be subject to the vagaries of fashion.

 

Peter OBrien* About the author: Peter O’Brien is economics & trade advisor to Africa consulting boutique Pr1merio. With over 30 years’ international expertise in economic and financial analysis, trade negotiations, and deal making, Peter O’Brien has advised governments, NGOs, and private clients on economics, policy, and diplomacy matters. Peter has worked worked in all regions of Africa, providing advice to clients ranging from South African conglomerates to Ethiopian government ministries.  A native of Ireland, Peter is fluent in English, French, Spanish, Portuguese, Italian and German.

$1 billion per year lost to corruption: a Nigerian saga

A protester sports an anti-corruption T-shirt in Lagos.

$1 billion per year lost to corruption

Recently, AAF reported on the multi-faceted PR efforts of the new Buhari regime to clean up the soiled image of “corrupt Nigerian politics” — among other things, by staging photo ops with World Bank leaders, charging former government officials with bribery, and moving ahead on basic appointments.

Today, the Guardian reports that the Nigerian Minister for Information, Lai Mohammed, “kicked off a corruption awareness campaign appealing to Nigerians to join the fight,” noting that the previous regime’s embedded corruption had “enriched a small elite but left many Nigerians mired in poverty, despite the country being Africa’s top oil producer and having the continent’s biggest economy.”

AAF spoke with John Oxenham, a legal expert on anti-corruption measures with Africa advisory firm Pr1merio.  Oxenham comments:

“The Buhari administration is finally making good on its promises, it would seem, as it had thus far been slow to implement even the most basic of administrative tasks, such as appointing a proper cabinet.  As previously pointed out on your site, the visit with Ms. Lagarde and her advisors serves to enhance visibility and (hopefully) honest dedication to the anti-corruption efforts.  At Primerio, we work with several foreign private entities that express concern over doing business in Nigera, given its reputation.  While we can advise on compliance and risk-avoidance (keyword FCPA etc.), the Nigerian government’s efforts to stamp out corruption from within are helpful, as well, in developing a more robust foreign-direct-investment climate.”

That said, the Buhari camp must be careful not to create the appearance of using the “war against corruption” as a sham front for silencing the opposition under the guise of rooting out fraud.  “Employing the help of the courts — presumptively more impartial and fair than the political process — is therefore key to the government’s fight against graft in Nigeria,” says Andreas Stargard, also with Primerio.

“The estimated $1 billion per year lost to corrupt dealings over the past 7 years is staggering, especially when taking into account that these are merely the official figures — our Africa economists estimate that the actual loss to corruption amounts to an even larger share of the (significant) Nigerian GDP.”

And so the Nigerian saga continues…

How a Billionaire Changed Corrupt Government: Dangote vs. Mugabe

Did a Nigerian CEO single-handedly wipe out source of Zimbabwean ‘indigenisation’ corruption?

The Zimbabwean economy has been struggling hard under the regime of President Robert Mugabe for years, having contracted as much as 40-50% and suffering from galloping inflation rates of over 79 billion % (so-called hyper-inflation, which is exceedingly rare today).  This has, in turn, led to tremendous human suffering, including famine, a significant exodus from the country, a decline in life expectancy, etc.

One of the oft-cited culprits hindering foreign direct investment (FDI) into Zimbabwe has been the official policy of “indigenisation.”  Andreas Stargard, an advisor on African competition and fraud issues and a Primerio director, comments:

“After the 1979 Lancaster House Agreement set in motion the ultimate Land Reforms and other measures that would allow the new majority rule to eradicate the remnants of the British Empire’s colonisation of the former Rhodesia, the Zanu-PF policy of requiring all FDI to cede 51% or more of the investment’s equity interest to native Zimbabweans, foreign interest in the country has dropped significantly.  The indigenisation policy has sent investors running — well above and beyond their already extant currency worries and the spectre of government-sanctioned expropriation.”

Indigenisation and its effects

The indigenisation rule applies to “any person who before the 18th of April 1980 was disadvantaged by unfair discrimination on the grounds of his or her race, and any descendant of such person.”  This law, the so-called ‘Indigenisation and Economic Empowerment Bill of 2008‘ (IEEB), has not only hindered DFI, but also led to an exacerbation of corruption within the Zimbabwean business and government circles, as it acting as the Zimbabwean majority front-man has become a lucrative calling for otherwise unqualified government officials or their family members.

The Economist has noted, just prior to the 2008 enactment of the Zimbabwean law, that the vagueness of its provisions could be a harbinger of confusion (and, correspondingly, corruption):

Zimbabwe’s bill contains a lot of ambiguity, and gives a lot of loosely-defined discretion to the government. It is unclear whether the transfer would apply only to future mergers, demergers, restructurings and transfers, or to all existing companies. Moreover, the minister for indigenisation and empowerment would have to approve all ownership transfers and would have the power to impose alternative local partners if he disapproves of those involved in the proposed transactions. He would also have the authority to exempt selected companies from the ownership requirements for a certain period.

Dangote to the rescue

The man who has now called into question — and apparently successfully so — the Zimbabwean indigenisation rules is none other than one of  Africa’s foremost Black billionaire businessmen, Aliko Dangote.  He is the CEO of his eponymous company, Dangote Group, which has expanded from being once a mere concrete business to an conglomerate empire of significant proportions and well over $3 billion in annual revenues — enough to make Mr. Mugabe’s ministers now consider reforming (if only silently and unwillingly) the existing policy’s hurdles to FDI.

Although the Zimbabwean Vice President, Mr. Emmerson Mnangagwa, has denied any connection with the suddenly ongoing reforms to indigenisation rules and the Dangote Group’s recent promise to invest up to $400 million of sorely-needed hard, foreign currency into government coffers and domestic commercial banks, this seems to have been precisely the case, in AAF’s view.  Bloomberg has reported that not only Dangote, but also the (decidedly non-Black, despite its name) BlackRhino private-equity infrastructure fund, which is a Blackstone subsidiary, would consider concomitant investing into Zimbabwean power generation.  Other media outlets likewise reported the dramatic change in demeanour over the past two weeks, since Mr. Dangote’s initial visit to the country and his subsequent threat to withdraw his investment promise, if needed reforms were not undertaken swiftly:

When Nigerian billionaire Aliko Dangote arrived in Zimbabwe last month, the red carpet was rolled out for Africa’s richest man.

He was showered with exclusive hospitality and access to ruling elites, including meetings with the two Vice Presidents Emmerson Mnangagwa and Phelekezela Mphoko before seeing President Robert Mugabe.

Since then, after Mr. Dangote strategically “forgot” to mention Zimbabwe as one of his target countries, thereby prompting deservedly worried Zanu-PF reactions, the ruling party has apparently gotten the memo from the mega-CEO: it recently released an official Presidential memorandum announcing reforms to “improve the easy of doing business” in Zimbabwe.  Says Stargard:

“See, under the existing IEEB rules, it’s not enough to be Black in Zim by the Zanu-PF’s standards for doing business — one must also be Zimbabwean by birth (or at least as of the country’s independence day in 1980).  So Mr. Dangote does not qualify for preferential treatment, and therefore would have to cede over half of his local investment value to domestic ‘business interests,’ AKA a vast array of potentially corrupt shell entities or individuals waiting to benefit from the Dangote/BlackRhino investment slush fund.”

A local Harare attorney, Obert Gutu (Twitter), told a Financial Gazette reporter that in his view, the ambiguities and resulting counter-productive effects outweighed the upsides of the law: “The contradictory statements that are being made by different ZANU-PF cabinet ministers are symptomatic of policy incoherence and institutionalised confusion.”

Mr. Dangote would seem to agree with Mr. Gutu’s views, expressed more than a year ago in the Gazette’s aptly titled article “Indigenisation Act Continues To Create Confusion“:

“It is a populist indigenisation policy that is benchmarked on emotive utterances that do not resonate with the reality that is presently obtaining within the global macro-economic architecture.  For as long as the ZANU-PF government trumpets this populist indigenisation policy, Zimbabwe will not attract any meaningful foreign direct investment. Our national economy will remain fragmented, perilous and fragile.”

We conclude by (1) hoping that Mr. Dangote’s influence (or at least that of his U.S. dollar-denominated chequebook) bears fruit and stamps out a good part of the extant corruption in Zimbabwean politics; and we (2) note that Zimbabwean indigenisation stands not alone in Africa — other countries, notably South Africa with its Black Economic Empowerment rules in effect since the early 2000s, have similar (although perhaps less draconian) measures in place to level the playing field in the former European colonies.  The Zanu-PF version of Black economic empowerment is, however, apparently too counter-productive even for Africa’s most influential Black businessman, as we are now beginning to learn…

To be continued

Buhari to the rescue: Tackling corruption in Africa’s largest economy

“The wind of change is blowing through this continent…”

Perhaps reminiscent of the “Winds of Change” (the speech delivered in 1960 by British Prime Minister Harold Macmillan to the Parliament of South Africa in Cape Town), the recent address given by new Nigerian President Muhammadu Buhari at the United Nations represents a political milestone in seeking to eradicate corruption in Africa.

The omnipresent malaise of corruption: Buhari to the rescue?

Were $150 billion ‘stolen’ under aegis of President Jonathan?  Having previously attacked his predecessor’s regime from 2010-15, claiming it embezzled this staggering amount from the Nigerian state coffers and the private sector, Buhari already had made his anti-corruption stance a key component of his campaign against Jonathan.  For instance, back in 2011, he “urged President Jonathan to focus on tackling corruption in government instead of removing fuel subsidies.”

During his 2014 campaign, he lamented in his so-called “2015 Manifesto” that “[a]s a nation, we are paralyzed by … endemic institutionalised corruption,” speaks of “hyper-corruption,” and proposes as its solution that: “I, Muhammadu Buhari have now come to the rescue. This is success by design. It will overcome our failure by design matrix.”  Moreover, his 4th campaign promise has been to “Prevent the abuse and misuse of Executive, Legislative and Public offices, through greater accountability, transparency, strict, and implementable anti-corruption laws, through strengthening and sanitising the EFCC and ICPC as independent entities.”

More recently, the President had a slightly more sober message to deliver to the General Assembly in New York City, yet still zeroing in on the same target, namely corruption:

“Let me reaffirm the Nigerian government’s unwavering commitment to fight corruption and illicit financial flows. By any consideration, corruption and cross-border financial crimes are impediments to development, economic growth, and the realisation of the well-being of citizens across the globe.

“Nigeria is ready and willing to partner with international agencies and individual countries on a bilateral basis to confront crimes and corruption.”

Winds of Change?

Buhari took office only in June 2015, but is far from new to politics in Africa’s largest economy — he was Nigeria’s military ruler in the 1980s, was a former Minister for the key portfolio of Petroleum & Natural Resources, and has concomitantly extensive political and strategic leadership experience under his belt.  For him to have chosen the fight against corruption in Nigeria as a key topic in his U.N. speech foreshadows a major initiative, we believe.

Pr1merio co-founding partner, Andreas Stargard, likewise perceives President Buhari’s message to be an important one, especially for international businesses with Nigerian ties:

“Several African, and in particular West African, countries have historically been seen as far too lax on effectively countering corruption and bribery.  This can often have one of two results for international businesses, neither of which is good for the affected African economies, coincidentally: (1) either the foreign corporation weighs the risks and chooses to avoid Africa for fear of involvement in bribery and resulting liability risk, or (2) it actually decides to participate in the corrupt conduct and seeks to benefit from it, paying scant attention to local anti-corruption legislation, and risking FCPA-like prosecutions in its home country.”

Whether or not Buhari’s pronouncements in international diplomacy will have an actual and measurable impact in the short or even medium term remains to be seen.  Bayo Adaralegbe, also a Primerio advisor, agrees that President Buhari’s speech at the U.N. does heralds potential key turn-around point in West-African anti-corruption efforts.  Adaralegbe notes that, unlike his predecessor Goodluck Jonathan, President Buhari is intent on fulfilling his election promises.  Buhari added in his address to the United Nations that:

“In particular, I call upon the global community to urgently redouble efforts towards strengthening the mechanisms for dismantling safe havens for proceeds of corruption and ensuring the return of stolen funds and assets to their countries of origin.”

As recently reported by AAF (e.g., “Just a math issue”: Anti-Corruption Efforts in Kenya take Center-Stage for Obama), many recent African administrations have attempted to bolster — or at least undertake public-relations efforts on behalf of — their enforcement efforts, particularly in recovering funds stolen by previous administrations.  Buhari’s statements are not different in this regard.  

It is of course difficult to gauge whether the messages above will result in substantial enforcement action.  That said, for many doing business in the region it is noteworthy that the message in fact comes from the top, i.e. the sitting President of Africa’s single-largest economy…

“Just a math issue”: Anti-Corruption Efforts in Kenya take Center-Stage for Obama

File Jul 25, 11 51 17 AM

Anti-Corruption Efforts will Require some “Visible Prosecutions”

President Obama opined that it was “absolutely the right thing to do for President Kenyatta [to] emphasize” the Kenyan government’s stepped-up anti-corruption efforts.  He called public corruption potentially “the biggest impediment to Kenya growing even faster.”

“Just a math issue”

Business efforts being “constantly sapped” was a real risk to foreign direct investment, as Obama pointed out: “International businesses are concerned if the price of investing in Kenya is 5-10% going to some place that doesn’t have anything to do with the project.  It’s just a math issue.”

Acknowledging that corruption is not only an African problem (noting that even the U.S. and his hometown of Chicago had faced significant public fraud & bribery problems), the President highlighted what AAF has often stated: anti-corruption efforts imply serious cultural changes and necessary at both the top as well as the grassroots levels.  They will “require some change in habits,” and most notably “require some visible prosecutions,” according to Obama.

It is not hard to predict that President Kenyatta’s cabinet will see more shake-ups as a result of the promised stepped-up anti-corruption efforts.

The Ethics and Anti-Corruption Commission offices in Nairobi

As we noted in “Increased anti-corruption enforcement across Africa?“:

“You will read about record-breaking fines imposed; and you will hear about ever-longer jail sentences for violators.  African nations are no different in this regard than the U.S., where the DOJ has an annual tradition, almost invariably touting record-setting numbers resulting from its various enforcement divisions.  Even a quarter billion dollars of cumulative fines in South Africa are insufficient evidence of true deterrence, however — what is needed going forward is a culture of anti-corruption compliance, which goes deeper and spreads its roots more widely throughout the business & governmental community than any single record fine or jail sentence can ever accomplish,” says Andreas Stargard, an attorney with Primerio, an Africa-focused law firm and boutique business consultancy, advising on anti-corruption and competition & regulatory matters across the continent.

The necessity of strong regional regulatory oversight on infrastructure projects in Africa

Africa-infrastructure

The necessity of strong regional regulatory oversight on infrastructure projects in Africa

RogerBy Roger Tafotie

Dr. Tafotie is a Pr1merio advisor with a legal & business focus on both African and European markets. A member of the Luxembourg Bar, he is also a lecturer in law at the University of Luxembourg. His focus areas include project finance/public private partnerships, banking & finance, and corporate law.

In his latest paper on essential infrastructure development on the African continent, Roger not only embarks on a mission to clarify the valuable role of public-private partnerships (“PPPs”) — he also reminds us that, beyond “well-drafted projects contracts,” there must also be an “effective and efficient African regional regulatory oversight system, with clear roles and lines of command, that is able to protect against ills such as self-dealings and anti-competitive alliances or monopolies,” including “the monitoring of the tendering process against corruption.”

Enhanced competition and an effective oversight system to weed out corruption in the bidding (and execution) process not only protects the local, national or regional governmental issuer of the infrastructure PPP. In order to keep all stakeholders, including global financing institutions or other private lenders, in a position of “acceptable risk,” a well-supervised competitive process is essential to tender selection and project execution.

You can find the full paper here, exclusively on AAF and on AAT.

Corruption & instability scare away foreign direct investment in South Africa

south_africa

Corruption & instability scare away foreign direct investment in South Africa

Former ANC Treasurer and Mpumalanga premier Mathews Phosa has identified corruption, inconsistent government policies, and other factors as root causes of investors’ growing reluctance to invest in South Africa.

The Mail & Guardian’s Adam Wakefield reports that Mr. Phosa, who speaks nine languages and has had a successful but not always undisputed past history within the ANC organisation, spoke at an investment conference sponsored by the Austrian Business Chamber in Johannesburg, at which the former ANC official admitted that the current government’s tackling of corruption and other conduct had led to diminished investor confidence in the political leadership’s adherence to promoting the rule of law and in the country’s forward-looking stability.

In order to create and maintain an “investment-friendly culture where every investor feels protected and free to do business,” the ZA government should implement “actions and activities to grow the economic cake,” rather than dividing it.  Emphasising that South Africa must send a clear signal about its dedication to the fight against corruption, Mr. Phosa said that whistle blowers should enjoy greater protections, the office of the Public Protector should be strengthened, and perpetrators of graft and other corrupt activities must be removed.

Mathews Phosa (Felix Dlangamandla, Gallo Images).

Mathews Posa with Mr. Zuma

Other factors he identified as leading to foreign investors’ reluctance to expand into South Africa include inconsistent BEE policies, mining policies that have led to a diversion of mining-related investments away from RSA and into  Zambia, Mozambique and Angola; lacking eduational policy; and failed agricultural development and land reform.

Mr. Phosa’s comments coincide with a new report released by the Centre for Corporate Governance in Africa at the University of Stellenbosch Business School, which concludes that corruption remains one of the major obstacles to Africa’s economic rise.  In the Centre’s “Ethics and Compliance Risk Survey 2014,” the authors claim that, among the Southern African Development Community (SADC), South Africa suffers particularly from the perception of a high prevalence of bribery and corruption in the granting of South African government contracts and procurement tenders, whilst the top countries in terms of ethical business environments and regulatory efficiency are Mauritius, Botswana, Namibia and Lesotho.

south africa ethics report table excerpt

Concerns over FCPA & bribery issues prevent African expansion

Misconceptions of real risk limits outside investment in Africa

This headline from today’s Wall Street Journal captured our attention: “FCPA Fears Hinder U.S. Companies Considering Africa“!

It is an interview by Ben DiPietro of Aubrey Hruby, visiting fellow at the Africa Center / Atlantic Council.

Atlantic Council (image via WSJ)

Aubrey Hruby, visiting fellow at the Africa Center at the Atlantic Council.

Ms. Hruby’s key insight shared in the interview is – while perhaps not surprising at all – certainly worth sharing with our AAF readership: Companies subject to the Foreign Corrupt Practices Act (FCPA) perceive themselves as limited in their investment opportunities in the 54 African countries, thereby reducing their overseas competitiveness.  Says Hruby: “General counsels tend to play more of a role in market decisions when it comes to Africa than in other places, and there still is a general stereotype that African countries are very corrupt, though if you look at the Transparency International rankings, many other countries rank higher than African countries in terms of their level of corruption.”

Concerns include the extended families of government employees or leaders, which may create FCPA pitfalls even where there is no intentional bribe or other law-breaking on the horizon — the mere hiring of a consultant with family ties to a government official may be enough to prompt an investigation and incur potential liability.

Her advice to U.S.-based companies is that they should not let the perceived FCPA risk “dominate how they look at the markets” in Africa, and that they “pick partnerships with people who can thoroughly assess the risks. Maybe it’s partnering with an African bank or a local consulting firm or a firm that’s been there for a very long time. They can help you do due diligence on partners, help you identify the right partners and help you overcome concerns with being FCPA compliant.”

In her estimation, “Ninety percent of business in Africa is done cleanly. They really need to know it can be done with serious partners and done in a clean and compliant fashion.”  Her key advice — shared by us at AAF, of course — is to “pick[] the right partners” and to commit to your strategy.