Mujem Fombad Esq., Barrister-at-law, Yaounde spoke to Cameroon Tribune on the the Head of State's decree of application on reimbursing embezzled funds and freeing those who reimburse such funds. We first wanted to have his reading of the decree.
The Head of State signed Decree N°2013/288 of September 4, 2013 fixing the modalities for the restitution of corpus litis, that is embezzled funds. The decree spells out the modalities and how reimbursement can be done, before which authority and also the procedure to stop criminal proceedings against those who voluntarily reimburse stolen funds. The big innovation is that it gives the possibility of reimbursement in kind.
And the modalities, what is specific about this?
It states that the reimbursement is paid in cash, that is you pay back the sum of money that you are accused of having embezzled or you restitute to the State items that you embezzled. This, it specifies, can be done at the police when criminal inquiries are still on, to the Examining Magistrate if the file is already before him, at the Legal Department of the Special Criminal Court, and also to the President of the said court or during court sessions. The Special Criminal Court has competence for people who embezzle sums as from FCFA 50 million, but the last part of the decree says that it applies to those who are tried by lower courts for sums less than FCFA 50 million.
The similar authorities in such courts have the right to receive repayments. The decree also specifies that if you reimburse before you are charged to court, you will have a bigger advantage in the sense that if the criminal procedures are dropped, your non-conviction will remain clean. But if you reimburse when you are already charged in court and even if criminal procedures are dropped, it will still be mentioned in your certificate of conviction. People have an advantage to reimburse before they are charged to the court.
Paying back in kind means in immovable property. Can a third party do so for an accused?
Article 2 of the law says reimbursement can be done by the accused person or his representative. This means that somebody can pay on behalf of an accused and it will be considered as repayment. With regards to reimbursement in kind, the law says that it has to be done exclusively before the Attorney General. It is only the Attorney General that receives an offer in kind and it comes along with the item you propose as part of reimbursement. It could be a house, a piece of land, a vehicle or jewelry.
The Head of State's decree also specifies that if reimbursement is done in kind, the Attorney General who receives transmits the offer to the Ministry of Justice and the latter seizes the competent Ministry to be able to give a venial value to the property offered. I have a small worry with regards to this because it is to the effect that for those who offer to pay in kind, the Ministry of Justice forwards the file to the competent m
3inistry for evaluation. During the evaluation, the competent ministry appoints an expert to give a value to the item and the accused person is not associated. We know very well here that experts may under-value some items. The accused person was supposed to be given the ability to associate his/her own expert in the evaluation exercise even before forwarding it to government. Or a neutral third party could have been included in the evaluation exercise to avoid some viciousness on the part of some experts.
The advantage we have with this decree is that it fixes the time within which to act. It has given 72 hours for the authorities who receive restitutions to transmit it to the Ministry of Justice for it to give an opinion on the suspension of criminal proceedings. It is good in that files will not sleep in the drawers of some people. But the law has not fixed a time limit for evaluation to be done. In this case, someone may hold on a file because he/she has no personal interest or hatred.
What then is the fate of some accused that are alleged to have reimbursed their embezzled wealth?
The law has given authorities 72 hours to be able to transmit the files to competent authorities for the decision to be stopped. The law says that he/she who reimburses can see procedures dropped against him. It does not say must. Which means if you reimburse, it is not automatic that you will be freed. It says that the Minister can authorize the Prosecutor to stop criminal proceedings. The polemics here is with 'can' and the law says here that 'can' means that the authorities have 72 hours to forward restitutions to the Ministry for it to decide whether to stop or order the Prosecutor to stop criminal proceedings or not.
So how soon do we expect to see this provision applied?
It is effective application from the date of signature. The decree was signed on September 4, 2013 which means its application should already be operational.
