The Usual Suspect, or, How To Keep Thirty Million

This writer is sitting pensively in front of his computer, trying to figure out how he can actually focus on the reported millions of dollars that had been handed over to former South African President Jacob Zuma for safekeeping from Muammar Gaddafi, in the dying days of his one-man, despotic regime in Libya, just before the Arab Spring pushed him out – with a little help from some Nato friends and their warplanes. As the time ticks by and the coffee grows ever colder, the daydreams start to come along. Among them is a nearly hallucinogenic pitching session in which the dreaming writer has now been mysteriously transformed into a new iteration of Harry Zimm (the bizarre film producer of Get Shorty fame, played by Gene Hackman in the film).

The alter-Zimm addresses the other participants in his meeting, a group of people who look suspiciously like the Farrelly Brothers and Coen Brothers combined. He says:

“You see, this story, my story, is a lot like a combination of Three Kings, Treasure Island, and The Treasure of the Sierra Madre, but it’s also got Lawrence of Arabia and King Solomon’s Mines thrown in for good measure.

“You see, there’s Muammar Gaddafi, see, and as the noose of foreign militaries and angry Libyan citizens is closing in on him, a hush-hush, secret delivery arrives in South Africa – straight to the personal home of then-President Jacob Zuma. There’s a big Louis Vuitton bag containing $33-million in cash and there are instructions to hold on to this swag until further instructions arrive by secure courier. Maybe the idea is this money will be used to support Gaddafi in exile, maybe it is supposed to be used to get him out of a tight spot if things really go south.

“But there is much more money at play here. Besides this last batch of cash, there is the money and such that was eventually turned over to the new Libyan authorities by the South Africans, once Gaddafi was dead. And there are persistent rumours that Libyan money has been invested in lots of new office buildings and luxury hotels in places in the richest part of Johannesburg. This is Sandton, sort of a miniature version of Manhattan. Besides car chases, fights, pursuits through urban mazes and the usual Tom Cruise-ish kind of action thing, there’s also going to be lots of space in this tale for the legal and computer legerdemain that makes a thriller work well, as the complex plot is worked out.

“But then things get complicated. President Zuma suddenly loses his grip on the presidency and in the confusion of that unexpected transition, the money disappears. Poof. There are rumours; there are hints.

“Some say it went to neighbouring Swaziland, the last absolute monarchy in Africa, for safekeeping (maybe by mistake, it was supposed to be sent to Switzerland?). Others say it has slowly been drawn down and used for the South African ex-president’s own expenses (he has a big family and bills too). And yet others say there never was any money at all – it is all a figment of some overexcited imaginations and designed to be a false trail to lure people away from the big money.

“But a small group of ex-SAS operatives, some steely-eyed forensic accountants and computer nerds, and a mysterious fixer (who may be a double or even a triple agent) is on the trail. It is a journey that takes them from the Middle East, to Zurich, to different locations right across the ‘Dark Continent’. There will be lots of game to look at too, maybe even a breathless SUV chase across the savannah?

“However, besides our group, there are some others on the hunt as well. There is a lot of money at stake. We’ll use some ominous music here as the other hounds in the hunt are revealed. This could include some very shadowy figures from the Middle East, as well as governmental covert services from around the world – the SDECE, Mossad, the CIA, MI6, and the FSB, just for starters, because they all know (or think they know) there is much more than just the $33-million that left Libya in all the confusion… There is, reportedly, gold; there are diamonds; there are shady financial instruments like bearer bonds, and maybe other things.

“And everyone knows about this money because the story has been reported by the South African and British media and because the South Africans reportedly facilitated the repatriation of, literally, billions of dollars worth of hidden assets to Libya. Here, let me read you how it was reported by the AFP – the French news agency – way back in 2013. That story reads:

“South Africa will return assets and cash stashed in the country by the slain Libyan leader Muammar Gaddafi, the Treasury said on Thursday. The two governments agreed on ‘the repatriation from South Africa of Libyan funds’, totalling almost R10-billion. It is thought to include diamonds and gold. The assets were placed in South Africa by the Libya Investment Authority, the Libya Africa Investment Portfolio and the Libya Africa Investment Company – funds closely controlled by the Gaddafi regime.

“The Treasury said the assets will be returned in line with UN rules. The deal was reached at a meeting between Finance Minister Pravin Gordhan and a Libyan government delegation on June 4.

“The decision was informed by the fact that the government of Libya established a single body in 2012 to coordinate the repatriation of assets to Libya,” the government said. [But, did they? Maybe this can be the teaser even before the opening credits.]

“This body co-operated with the committee formed in terms of the UN Security Council Resolution 1970 (2011) and the panel of experts which co-ordinated repatriation to Libya of assets frozen in various countries. South African media last week reported that Libyan investigators had approached the Treasury with evidence that the assets were held by four local banks and two security companies.

“A letter sent by Libyan investigators said large amounts of cash from Libya’s state investment funds had been uncovered in South Africa and neighbouring states. South Africa opposed Nato’s military intervention in Libya during the rebel uprising against Gaddafi’s regime in 2011. The veteran leader was captured and killed in October 2011 while he was trying to flee his home town of Sirte.

“Libyan investigators learned of state funds stashed in South Africa from Gaddafi’s former intelligence chief Abdullah al-Senussi. He is in a Libyan prison after being extradited from Mauritania. Part of the missing money is allegedly controlled by Gaddafi’s former chief of staff Bashir Saleh. Saleh, who headed Libya’s R400-billion sovereign wealth fund, is wanted in Libya for fraud and is the target of an Interpol arrest warrant under the alias Bashir al-Shrkawi. Several high-ranking officials linked to Gaddafi's regime, including members of his family, have been linked to corruption scandals that emerged after his death.”

My dream’s Zimm character then begins to tell the assembled high-powered producers about the actors he has been thinking about to play the leads, in order to attract the financing for the film. This one will need some bankable stars. Zimm says:

“What a shame Richard Pryor and Gene Wilder are both gone. They would have been great fun. So, how about James Earl Jones, does he still act? Or Samuel L Jackson or Lawrence Fishburne, or maybe Courtney B Vance for Jacob Zuma. And then we can pair one of them with, say, Rami Malek, Tony Shalhoub or Alexander Siddiq as the Libyan autocrat, or that shadowy Libyan go-between, Bashir Saleh. He’s got lots to do, too. That one is no minor role.

“And how about Eva Green or Jennifer Lawrence as the mysterious double/triple agent working with people who seem just like the old ‘A-Team’? And then there would be all those delicious cameos for the actors portraying Barack Obama, David Cameron, Nicolas Sarkozy, and even the UN secretary-general, Ban Ki-Moon, for their roles in the way Gaddafi finally was tossed out. A film like this could get the producers ahead of the curve, with a film that is based on true events, sort of ….”

But then, suddenly, this author comes out of his mid-afternoon reverie, smells the coffee, and, sadly, returns to the weighty matter that is really at hand.

So, let us assume there really is this swag located somewhere between Jacob Zuma’s Nkandla and King Mswati’s eSwatini kingdom, and moreover, that it came from the last kicks of Muammar Gaddafi’s dying despotism. Let us further assume that, as some have argued forcibly (such as commentator Max du Plessis’ column in Daily Maverick), that the very possession of this booty contravenes a whole web of UN resolutions and findings, putting both the former president and his country into some potentially serious difficulty under international law. That is rather tough stuff.

But on social media and in speculations in the South African press, some people have argued that simply by taking and holding (or using) the big pot of money in US currency, Jacob Zuma has put himself in potential criminal jeopardy vis-a-vis US law, in addition to all those UN complications. The way this has been argued, it is as if, should he have a whole splodge of wonga American style, the US feds can go for him. He could be indicted, extradited, tried, convicted, and then sent off to the federal pen to share the recreation yard in his navy colour onesie with people like Bernie Madoff, Michael Cohen, and Paul Manafort, or the former Panamanian dictator Manuel Noriega, who died in US prison in 2017, aged 83.

But US law doesn’t work that way. After all, it is not illegal to hold large amounts of US currency outside the country, even if the means of obtaining it were shady/shadowy. If the simple act of holding it were illegal, half the people in the Middle East, and a whole bunch of tin-pot authoritarians across Africa and elsewhere too might already be under indictment, waiting for the knock at the door.

Effectively, there has to be an actual violation of a US law before the feds will get involved. So far at least, it seems hard to see how Jacob Zuma would have violated US law simply by taking possession of $30-million from even the likes of Muammar Gaddafi, especially since it sounds like Gaddafi or his agent physically handed over the money, rather than by wiring it to SA from somewhere else.

There’s a possible hook. If it had been wired, it probably could have involved the US banking system somehow, thereby infringing the Foreign Corrupt Practices Act and/or the Racketeer Influenced and Corrupt Organisations Act aimed at organised crime. In that way, Zuma’s receipt of the money could conceivably be chargeable. Remember what happened with the involvement of the US in the FIFA bribery scandal?

But, as anti-corruption law specialist and a former prosecutor with the US Department of Justice and Securities and Exchange Commission Stuart Deming wrote in a blog article, Misunderstood: The FIFA scandal and the extraterritorial reach of US law:

“In some quarters, the recent indictment by the United States of a number of individuals associated with FIFA has led to an outcry as to the extraterritorial reach of US law. Implicit in the outcry is the suggestion that the United States is unique in the application of its criminal laws. Though defence counsel can be expected to challenge US jurisdiction and to interpose various rationales for fighting extradition for many of the defendants, by no means was this a situation where an isolated event or contact with the United States served as the basis for territorial jurisdiction.

“A careful review of the 164-page ‘FIFA indictment’ does not support a claim of overreach on the part of the US Department of Justice. Two of the 14 individuals indicted were US citizens, another was a permanent resident of the United States, and three others owned residences in the United States. The use of the US banking system to facilitate the questionable conduct was extensive. Furthermore, many of the activities involved CONCACAF, which represented organised ‘soccer’ in North America, Central America, the Caribbean, and three South American countries. The administration offices of CONCACAF were initially located in New York and later in Miami, Florida. Based on these and other allegations, the indictment simply does not support a claim that contact with the United States was incidental. [Italics added]”

Deming goes on to note that the way the US applies territorial jurisdiction is actually quite similar to the authorities in countries like the UK, Canada, Australia and New Zealand. And, Deming notes:

“Some countries, like the United Kingdom and South Africa, have statutes that are far more aggressive in addressing private bribery. Unlike the United States, they provide for both nationality and territorial jurisdiction. Moreover, for entities under the UK Bribery Act, the mere act of engaging in limited activity within the United Kingdom has the potential of triggering criminal liability of both public and private bribery taking place in other parts of the world. In this context under the UK Bribery Act, it does not matter whether any act in furtherance of the questionable conduct takes place within the territory of the United Kingdom.”

But besides anything else, the real key would be the central role of America and American banks in global banking. The chances that some activities in a criminal enterprise would involve moving lots and lots of money around would end up involving the US banking system seem almost a given, even if care were taken to minimise such chances.

At least for now, besides thinking about Mr Zimm’s imaginary movie blockbuster, nailing down exactly what has happened with the Gaddafi zillions – and where they are, and if they exist, and who has them, especially given all the denials by various South African government senior officials – will remain beyond the reach of the law. For now, anyway. But someday it will be a great movie; just remember where you heard about it first. DM