Unless Congolese authorities file an appeal by Monday August 17, 2009, Swiss banks holding 7.7 million Swiss Francs ($6.68 million) belonging to late dictator Mobutu Sese Soko will transfer the funds back to his family members in the Congo.

“Marshal” Mobutu, the former Congolese general who seized the reins of  power in a bloody coup in 1965, is widely believed to be responsible for the mass murder and torture of untold thousands of Africans within and outside his kingdom of Zaire (now the Democratic Republic of Congo).  Mobutu is thought to have stolen some 5 billion in state funds before his regime was overthrown by Laurent Kabila’s rebels in 1997; the term ‘kleptocracy’ was invented specifically to describe his reign.  Some of  Mobutu’s heirs who are due to receive the Swiss proceeds had stood by his side while he carried out his terrible pillage, and many continue to exert considerable influence (and corruption) in modern-day Congolese politics.

Why, then, is the Swiss Federal Council forcing its banks to return the Mobutu clan’s ill-gotten gold to the robbers rather than to the robbed?

The answer lies in that battleground where international law skirmishes with the careful champions of national sovereignty and where - amidst the standards and smoke of corrupt political operators and zealous NGOs - the welfare of the many now trembles before, now tramples upon the righteous shields of the privileged few.

When Mobutu fell in 1997, and rumours of his massive theft solidified into truths overnight, banks offshore and in Switzerland were placed under a great deal of pressure to locate and seize his hidden fortunes. Despite Mobutu’s sophisticated attempts to disguise his funds using such shadowy vehicles as Hungarian shell companies directed by French principals, Swiss banks were eventually able to identify several million francs that could be traced to Mobutu.  These funds were immediately frozen until criminal charges could be filed against the dictator in the DRC or until a Congolese court ordered that the funds be turned over to the people from whom they were stolen.

More than eleven years and many extensions of the freezing order later, no charges have been filed in the DRC, and no Congolese court has passed any sort of judgment against Mobutu.  The Federal Criminal Court of the Swiss Federation, in a decision dated July 14, 2009, thus had no choice but to declare that the Swiss banks could no longer legally hold on to Mobutu’s funds under the Swiss statute of limitations.  Since the dictator passed away shortly after his ouster in 1997, the Court ordered that the money be returned to Mobutu’s family.

Now, before we go attacking Swiss courts for releasing tainted money into criminal hands, it’s important to remember the essential role that statutes of limitations play in protecting individuals’ rights to due process.  Essentially, the banks had been holding onto Mobutu’s money for 10 years without any finding of wrongdoing by a court of law.  Clearly, if the case involved anyone else, we would have been excoriating them for not ordering the release sooner.  It seems like the confiscation of 7 million dollars requires at least a trial, if not a fair one.

Mobutu’s case, however, involves a highly connected political family able to completely obstruct any Congolese effort to recover the funds.  And therein lies the true problem.

Swiss courts have been extremely innovative in returning funds secreted away by deposed dictators to their rightful owners where political resistance or corruption in the victimized state might otherwise prevent recovery.  In the case of Ferdinand Marcos, restitution proceedings took almost 17 years but Swiss courts permitted the freeze to continue because the government of the Philippines was actively pressing its case.  In the case of deposed Nigerian dictator Sani Abacha, Swiss courts ordered the partial release of funds to Nigeria before criminal charges had been proven, and accepted a settlement between Abacha’s family and the Nigerian authorities for the monitored release of the remainder.  In a monumental decision of February 2009, the Swiss goverment ordered that $6 million be paid to Haitian NGOs from the frozen bank accounts of former dictator “Baby Doc” Duvalier.  In that case, even though criminal charges were never proven in  Haiti, the Swiss Federal Criminal Tribunal found that there was sufficient evidence of criminal wrongdoing by the Duvalier family that the burden of proof was reversed - unless the family could prove that they were innocent, the money would be returned to Haiti.

In Mobutu’s case, however, the political influence of his family is apparently so great that it has been able to block even the feeblest attempts by the DRC to recover the funds from the Swiss.  Besides the deep and extensive network that the family has been able to cultivate in the Congo, Mobutu’s son Nzanga is Deputy Prime Minister and Minister of Agriculture.

As stark evidence of this, despite repeated requests by the Swiss government for intervention of the Congolese authorities, it was finally a Swiss university professor, acting under the rubric of a “citizen’s appeal”, who initiated July’s last-ditch effort to keep the funds from being returned to Nzanga & Co.  He attempted to do what had been accomplished in the Duvalier case: convince the court that Mobutu family had been operating as a criminal network, thereby both keeping the action alive (criminal charges are not subject to statutes of limitations) and forcing the Mobutu family to prove that they had obtained the funds legitimately.  Ultimately, without even a shred of support from the DRC, the action failed.

Largely in response to the Mobutu case, the Swiss Federal Commission has tasked the Federal Department of Foreign Affairs with formulating a new law that will allow Swiss courts to essentially circumvent national courts of “failed states” to return stolen funds to the victims of corruption.

Expanding on the “Gutzwiller Postulat” adopted by Swiss Parliament in June 2007, the legislation will have to deal with such delicate issues as what qualifies as a “failed state”; what inferences the court can make when there are problems collecting evidence that wrongdoing took place; which law should be applied to the offending acts (Swiss, national, or some cobbling-together of international law); and where the funds are to be sent when the victimized nation refuses to accept payment.

Switzerland must venture carefully lest it tread on the national sovereignty of countries with accounts in its banks. Imagine, for instance, a Swiss court froze the bank accounts of West Virginia Justice Brent Benjamin for accepting political donations from one of the parties to Caperton v. Massey Energy, a case that he was adjudicating, even though such conduct was legal in the US.  Obviously this would not happen - say what you will, the US is hardly a “failed state” - but it highlights the danger of legal paternalism masquerading as justice.  And there are many countries that, while economically or militarily powerful, are, when it comes to their court systems, pretty close to failures. Just ask the family of former Supreme Court Justice Aza Gazgireyeva.

But these are treacherous waters, and are best left to be navigated by politically elected and accountable leaders.

As for the Mobutu saga, Kinshasa is apparently carefully considering whether to appeal.  But after almost 12 years of inaction, it seems doubtful the DRC will finally weigh in now. Particularly because, as Information Minister Lambert Mende has indicated, “certain circumstances” would make any challenge “difficult.”

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