I was saddened by the news that Swiss banks have been ordered to release over US$6 million to the family of the late Congolese dictator Mobutu. It shows that despite some recent success stories (i.e., the Montesinos and Duvalier cases), Switzerland apparently still lacks sufficient legal instruments to go decisively after money that has been embezzled or stolen by ruthless dictators and hidden away in Swiss bank accounts. Meanwhile, the case further tarnishes the image of Switzerland and its banks, giving support to those arguing that Swiss bank secrecy laws continue to provide a safe haven for stolen assets.
Mobutu has been granted the unflattering honor of being ranked number 3 on Transparency International’s list of the world’s most corrupt leaders. He is thought to have stolen over US$5 billion from the Congolese state. His massively corrupt regime even has given rise to a new term: kleptocracy. Obviously, the term ‘corrupt government’ was not sufficient to describe Mobutu’s highly lucrative governing enterprise.
To be fair, Switzerland did encourage the DRC government to apply for the money to be returned to the people of the DRC in a Swiss court and offered technical juridical assistance to Joseph Kabila’s government. But Kinshasa remained inactive. Eventually, the Swiss Prosecutor’s Office ordered Swiss banks holding Mobutu assets to pay out the funds to Mobutu’s family. The legal grounds for this decision: the statute of limitations had run out.
A main reason why the people of the DRC will not see their money returned to them is that the country is still rife with corruption. Despite the fact that the current president is not a member of the Mobutu clan, the late dictator’s family still wields a lot of power in the country. One of Mobutu’s sons is deputy prime minister in the current government.
Another speculation for the DRC government’s reluctance to claim the money might be the fear that a legal investigation into the origins of the money may negatively implicate government officials that are still in power.
Yet, judging from the result, something in the Swiss legal system must have gone terribly wrong. The same has been argued by a Swiss lawyer who (as a private Swiss citizen) filed an appeal with the Federal Criminal Court not to release the money. The legal basis for his appeal was a Swiss legal statute that allows courts to label a regime that is systematically abusing human rights and robbing the country of its wealth a ‘criminal organization.’ And under this law, Switzerland can confiscate funds that have been acquired illegally. This is how Jean-Claude Duvalier’s money could be returned to the people of Haiti. At the time, the Federal Office of Justice ruled that the money be spent on social or humanitarian projects to benefit the Haitian people.
The legal argument did not work in the Mobutu case because Mobutu died 12 years ago. The court could not be convinced that members of Mobutu’s family – some of them sitting in the current DRC government – still form a ‘criminal organization.’ Switzerland still lacks the legal means for the outright confiscation of illicitly gained assets claimed by ‘politically exposed people,’ something Switzerland wants to change through new legislation in 2010.
But for the people of Congo, it is too late.