The matter is taken seriously at the highest levels of government.
In a statement made on national television on December 27, 2019, Félix Tshisekedi referred to a “serious case” and declared that he had urged the courts “to do their job” to settle the complex case involving considerable sums (€ 200 million were cited) and the large mining company Gécamines, a private company wholly owned by the State.
Two men are at the center of this legal balance of power which is on the way to becoming political: Gertler, an Israeli businessman who has been the subject of American sanctions since December 2017, and Albert Yuma Mulimbi, a close ally of Joseph Kabila who was reappointed. by Tshisekedi as Chairman of the Board of Directors of Gécamines.
To understand the imbroglio that led to widespread speculation in Kinshasa, we have to go back to October 2017.
At that time, Gertler’s company, Fleurette Mumi Holdings Ltd., had agreed to lend 200 million euros to the mining company Gécamines, but the loan ultimately amounted to 128 million euros.
However, in April 2018, when the loan was due, the Congolese mining giant refused to repay it, arguing that the American sanctions applying to Gertler since December 2017 prevented it from doing so.
US Treasury accuses businessman close to Kabila regime to have taken advantage of “his relationship with the Congolese head of state to serve as an intermediary in the sale of mining assets in the Democratic Republic of Congo (DRC), forcing multinational companies to go through Gertler to do business with the Congolese state. “
The US authorities had even calculated the damages, claiming that “the DRC had lost $ 1.36 billion in potential income due to the sale of these assets to offshore companies linked to Gertler.”
Questions about the legitimacy of the sanctions
A worker stands guard at the cement plant of the Grande Cimenterie du Katanga, owned by Gécamines, in Likasi.
The problem is that in the meantime, the loan taken out by Gécamines from Fleurette Mumi has been transferred to another Gertler company, Ventora Development Sasu.
The company took the case to a Congolese court to recover the loan of 128 M € and the Commercial Court of Lubumbashi ruled in his favor in a decision dated November 14, 2019. Gécamines, which refuses to pay Gertler as long as he is the target of American sanctions, has appealed against this decision.
The legal battle led to a second dispute over the interpretation of the very legitimacy of US sanctions.
According to Ventora, “the American sanctions on which Gécamines based its allegation of force majeure are the decision of a foreign country which has no legal or regulatory impact on the territory of a sovereign state like the DRC”.
According to the lawyer of the Congolese mining giant Roger Masamba, “If Gécamines repays the loan, it could incur sanctions”, and he even indicated that it risked not only incurring “very serious sanctions for Gécamines, but also for the social stability and the security of the country” .
A loan made known to the public
Above all, the legal proceedings made the public aware of the very existence of the loan – which none of the companies involved denies -. Naturally, it did not take long for the debate to focus on the use of the loan of 128 million euros.
Several civil society organizations, such as the Congo Is Not For Sale coalition and the Congolese Access to Justice Association (ACAJ) even suspect that the loan was only intended to cover money laundering.
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A giant with feet of clay
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As a result, ACAJ asked Gécamines to file a complaint against Ventora for attempted fraud, arguing that the Gertler company had not shown the mining giant any document explaining its rights to the Fleurette Mumi loans.
Gécamines, whose financial difficulties are well known, first explained that she had taken out the loan to finance its business activities and development projects, before subsequently ensuring, with supporting documents in hand, that the funds had been used to pay tax advances.
Stuck in Kinshasa
Faced with the outcry over the case, the Kinshasa prosecutor’s office is also looking into the controversy. Yuma, the chairman of the board of directors of Gécamines, as well as the general manager and the general secretary of the company were forbidden to leave Kinshasa while they were preparing to go to Lubumbashi on December 17, 2019.
The financial director of the company was questioned two days later during a hearing convened by the prosecution at the Kinshasa court of appeal.
Director General and Secretary General of Gécamines, who were in Kinshasa participate in a meeting with the IMF, are still prohibited from leaving the capital.
The case, going beyond simple commercial litigation, is now taking a political turn.
According to journalist Israel Mutala, “the presidential decrees appointing those who will appoint the new representatives of Gécamines are still blocked. Thus, anything that weakens the current management of Gécamines helps to underline the urgency of enforcing these decrees.
Yuma, an ally of Kabila who was initially rejected by Tshisekedi in his search for a prime minister, is at the center of the action. “This affair involves a real balance of power between the bigwigs of the old regime and the current president,” revealed an independent source familiar with the matter.