In my last commentary, The World Bank and Ethiopia’s “Growth and Transformation”, I cryptically observed in passing, “… The USD$600 million is money the World Bank loaned to the Thugtatorship of the Tigrean Peoples Liberation Front (T-TPLF) in the name of the People of Ethiopia. Future generations of Ethiopians will be asked to pay it back. Will they be legally obligated to do so!?! Umm!)” Are the people of Ethiopia responsible for the World Bank’s “odious debt” to the T-TPLF?
An “odious debt” may be defined as an “illegitimate national debt incurred by a regime for purposes that do not serve the best interests of the nation and therefore should not be enforceable against the people of the debtor nation.”
I submit the USD$600 the World Bank “loaned” to Ethiopia for the so-called “Protection of Basic Services Project” (PBS III) (and any other “loans” extended to Ethiopia by any government or international institution to be reviewed on a case by case basis) is an odious debt. I do not mean to suggest or imply that any other “loans” provided by the World Bank, the International Monetary Fund, the Chinese, Japanese, British Governments, the African Development Bank, or any member of the European Union are NOT “odious debts”. I believe they are highly likely to be odious, but that has to be determined on a case by case basis. Here I want to focus on the “odiousness” of the PBS III loan because there is a mountain of clear and convincing evidence that the USD$600 million loan is unquestionably an “odious debt”.
Is Ethiopia’s “odious sovereign debt” to the odious World Bank legally enforceable? Are future generations of Ethiopians liable to the debts accumulated with the World Bank by the T-TPLF?
I shall argue in this commentary that neither this nor future generations of Ethiopians have a legal obligation to pay for the “odious debt” incurred in the implementation of PBS III by the corrupt, racketeering and benighted T-TPLF.
Ethiopia’s “Odious Sovereign Debt” to the World Bank: The BIG legal questions
The legal questions and issues related to Ethiopia’s debt to the World Bank in PBS III are myriad. I will only list just a few of them.
1) If the World Bank’s PBS III loan to Ethiopia could not be accounted for in whole or in part, or is shown to have been stolen, misappropriated, misspent, embezzled, swindled and corruptly used by those in power, their cronies and associates, are the people of Ethiopia liable for that debt under international law?
2) If the answer is in the affirmative to question 1, could it legally be argued that the loan is a private or personal debt of the T-TPLF leaders, their cronies and associates who looted and benefited from the loan in corrupt racketeering schemes?
3) If the answer to questions 1 and 2 are in the affirmative, are the T-TPLF leaders, their cronies and associates jointly and severally responsible for these debts as personal debts?
4) If the answer is in the affirmative to question 1, do the people of Ethiopia have a legal cause of action against the World Bank for lending money it knows or should reasonably have known will be used by the T-TPLF in corrupt schemes or in the furtherance of organized racketeering activities?
5) Did the World Bank commit crimes against humanity by lending money to an illegitimate regime (a regime that claims election victory by 99.6 percent) which used the loan proceeds to engage in massive human rights violations including forced resettlements of indigenous populations?
6) Is the World Bank liable as an accessory (before and after the fact), accomplice and aider and abettor in the commission of a crimes against humanity against the indigenous Anuak people of Gambella who were forcibly transferred by the T-TPLF using World Bank PBS III loan money from their ancestral lands, relocated to infertile land which is unsuitable for farming, forced to live in villages without the basic necessities of life against their will and undergoing great pain, suffering and death in the process?
7) Are the people of Ethiopia liable to the World Bank for a loan that was used in willful disregard of the terms and conditions of the loan?
8) Are the people of Ethiopia liable to the World Bank for a loan that was administered by Bank employees in depraved indifference and flagrant violations of the Bank’s own policies, guidelines, approved business practices and established and widely accepted banking practices?
9) Are the people of Ethiopia liable to the World Bank for a loan that was used for corrupt and criminal purposes under the domestic law and constitution of Ethiopia and international law?
10) Is a successor democratic government to the T-TPLF liable for the PBS III debt?
In short, are the people of Ethiopia legally entitled to repudiate the PBS III as an odious debt?
I do not aim to answer the foregoing questions in this commentary. Here, I will only address the general issues as part of my longstanding efforts to educate the Ethiopian public. I shall defer the more technical legal issues for future litigation when the rule of law and democracy rise and shine on Ethiopia and the people manage to “transform the jangling discords of our nation into a beautiful symphony of brotherhood” and sisterhood and stand up united to defend their rights.
The legal doctrine of “odious debt”
The basic idea in the “odious debt” legal doctrine simply stated is that the people of a country should not be responsible for debts incurred fraudulently in their name by a regime or a brute band of thugs who corruptly converted and pocketed the loan money for their personal or private use. The idea is quite commonsensical and practical. For instance, if an identity thief or an embezzler fraudulently incurs a debt, should the victims be liable for the consequences of the criminal acts perpetrated against them? Is it fair to victimize the victims twice?
Likewise, if an illegitimate regime accumulates huge debts in the name of the people but converts the debt for the personal and private use of the regime leadership and cronies, should the people be victimized twice — once through the corrupt use of the money by officials which deprives the people of vital resources, and second by repaying a debt that was used to abuse and oppress them? Should the people be legally forced to assume the debts of a regime that squandered loans given in their name?
The legal challenge to repayment of debt used for improper purposes was first developed after the Spanish American War of 1898. The legal doctrine of “odious debt” was given its current formulation by a Aleksandr Naumovich Zak (Sack), a Russian professor of law with specialization in international financial legislation. In 1927, Sack published a treatise on the debt and financial obligations of successor states under international law following a revolution or change of government. The general principle of pacta sunt servanda (“agreements must be kept”) in international law prescribed that debts are obligations of state (the juridical entity) rather than to a specific regime, leader or government and are therefore deemed public debts despite a change in government or other factors. This principle has enormous practical significance. It would be impossible to transact international business if successive government could freely repudiate the debt obligations of their predecessors.
Sack argued that there should be an exception to the broad rule in circumstances where the debt is created not in the interest of the state but other reasons. He designated such financial liability “dettes odieuses” (“odious debt”). Sack argued:
If a despotic power incurs a debt not for the needs or in the interest of the State, but to strengthen its despotic regime, to repress the population that fights against it, etc., this debt is odious for the population of all the State. This debt is not an obligation for the nation; it is a regime’s debt, a personal debt of the power that has incurred it, consequently it falls with the fall of this power…
‘Odious’ debts, incurred and used for ends which, to the knowledge of the creditors, are contrary to the interests of the nation, do not compromise the latter — in the case that the nation succeeds in getting rid of the government which incurs them except to the extent that real advantages were obtained from these debts. The creditors have committed a hostile act with regard to the people; they can’t therefore expect that a nation freed from a despotic power assume the “odious” debts, which are personal debts of that power.
Even when a despotic power is replaced by another, no less despotic or any more responsive to the will of the people, the ‘odious’ debts of the eliminated power are not any less their personal debts and are not obligations for the new power….One could also include in this category of debts the loans incurred by members of the government or by persons or groups associated with the government to serve interests manifestly personal —interests that are unrelated to the interests of the State.
Sack’s theory resonated strongly with the decolonizing states of Africa, and in the post-independence period, Africans living under military or civilian dictatorships. Are the people of the newly independent states of Africa liable for the debts accumulated by their former colonial masters? Are the new liberation governments that overthrew their colonial oppressors obligated under international law to assume and repay the debt of the predecessor colonial state? In the post-colonial period, are the people in a given African country liable for the money borrowed by their military and civilian dictators (without the consent of the people) who rule through brute force and spend loans given in the name of the people on their personal luxuries, to repress and persecute the people or simply transfer the money to offshore bank accounts in the names of their relatives and cronies? Should a successor democratic government in an African country be legally required to affirm the debts of the previous dictatorship? If an African country were to raise the defense of “odious debt” to repudiate a debt, who bears the burden of proving that the debt was misappropriated and misused against the recipient nation’s public interest with actual knowledge or reasonably imputable knowledge to the creditors? Should creditor nations/institutions bear the burden of proving that the money they gave was used for legitimate purposes in their exercise of their due diligence? Are the people liable for debts incurred by dictators who use the proceeds in flagrant disregard of their needs and the interests of the State?
The stock of outstanding public sector external debt [in Ethiopia] reached US$12.2 billion in the first half of FY2013/14 and was US$ 11.2 billion at the end of FY2012/13, reflecting mainly additional concessional multilateral loans. Of the additional loans disbursed in FY2012/13 and first half of FY2013/14 (about US$2.4 billion, including Ethiopian Airlines), one third was for transport and communication sector, 18 percent for electricity related projects and 12 percent for highways. Debt service payments have increased in recent years, but favorable terms have kept the debt burden at low levels. (“Favorable terms” simply mean low interest rates, long maturities, technical assistance, etc. In my cynical mind, all that translates into cooking the books until Ethiopia drowns in an ocean of debt or is left on its own to paddle its way up that famous creek without a paddle.)
Sack argued that the burden of proof should be on creditors to show that the loans they provided were used in a manner consistent with the contractual terms of the obligated debt and served legitimate public purposes. If the creditors fail to carry their burden before an international tribunal, then the debt would not only be unenforceable but also null and void.
Many contemporary legal scholars advocate that inherited debts lacking clear public purpose are entitled to repudiate them as odious debts under international law. Patricia Adams of Probe International has argued convincingly in her book, Odious Debts: Loose Lending, Corruption, and the Third World’s Environmental Legacy, that the legitimacy of the Third World’s debts should be tested according to the doctrine of odious debts and the rule of law. She proposes a simple test for odious debt: “Who lent what and to whom, where did the money go, what did it do there, and where is it now?”
Application of the doctrine of odious debt and precedents under international law
The U.S. was actually a trailblazer in the “odious debt” movement. In the 1898 peace negotiations following the Spanish-American War, the U.S. government successfully contended that neither the United States nor Cuba should be held responsible for debt incurred by Spain which colonized and ruled Cuba without the consent of the Cuban people and in flagrant disregard to their welfare. The U.S. argued the debt was not contracted for the benefit of Cubans and was in fact hostile to them because the debt was used to suppress popular uprising by the Cuban people. Spain reluctantly accepted responsibility for the Cuban debt under the Treaty of Paris.
Other governments have essentially used the logic and principles of the U.S. position against Spain to absolve themselves of odious debt. Following the abdication of Tsar Nicholas II in 1917, the Russian Provisional Government under the leadership of Alexander Kerensky honored Tsarist debts. In October of that year, Kerensky’s government was removed and replaced with a Bolshevik (Communist) government. In 1918, the Bolshevik (Soviet) Government, possibly informed by Sack’s theory of “odious debt, decreed: “All foreign loans are hereby annulled without reserve or exception of any kind whatsoever.” They argued that “governments and systems that spring from revolution are not bound to respect the obligations of fallen governments.” The Soviets contended the Tsarist debts were personal debts of the Tsar and his regime and could not be transferred to the new Soviet government.
The case most cited as legal authority for “odious debt” discharge involved an arbitration dispute between the governments of Costa Rica and Great Britain. In 1917, following a military coup, Costa Rican dictator José Federico Tinoco Granados (Tinoco) and his brother established a junta. Tinoco, without securing the constitutionally required bicameral action in both houses of the Costa Rican legislature, made a lucrative deal with a British oil company. Tinoco granted a concession to the company with his signature and the approval of one house the legislature. In 1919, a few months after his brother was assassinated, Tinoco resigned. His successor Juan Bautista Quirós rescinded the contract on the grounds that the previous government had acted ultra vires (“beyond their (legal) powers”) when it concluded the contract. The Quiros government enacted the “Costa Rican Law of Nullities” and challenged the concessions and debts Tinoco had incurred with the Royal Bank of Canada.
… The whole transaction here was full of irregularities. There was no authority of law, in the first place making the Royal Bank the depositary of a revolving credit fund. The bank knew that this money was to be used by the retiring president, F. Tinoco, for his personal support after he had taken refuge in a foreign country. It could not hold his own government for the money paid to him for this purpose. The case of the money paid to the brother… is much the same…. All the circumstances should have advised the Royal Bank that the [money] was for personal and not for legitimate government purposes.
Taft required the Royal Bank to carry its burden of proving the Costa Rican Government had used the money for legitimate purposes. The Royal Bank was unable to do so and Taft dismissed the claim of Great Britain on behalf of the Royal Bank of Canada because the contract was ultra vires and unauthorized by the Costa Rican Constitution in force at the time.
A more recent counter-example of odious debt affirmed involves the government of the African National Congress in South Africa. Despite calls and campaigns by many leaders and organizations including the Archbishop of Cape Town and the Truth and Reconciliation Commission to have apartheid-era debts declared odious, the post-apartheid government of South Africa has declined to take action. Those campaigning for repudiation of apartheid-era debts argue that the loans given to the minority white regime made it possible to oppress and exploit the black population and loot the economy. There could be no case more deserving of classification as “odious debts” than those given to the apartheid regime.
“Foreign direct investment has been tiny – only two thirds of the profits repatriated by companies on investments they made in the apartheid State. And new lending has not kept up with repayments – over six years South Africa paid out $3.7 billion more than it received. If South Africa had frozen profits on apartheid-era investments and simply repudiated the odious apartheid debt – or even if it had demanded a ten year moratorium – it would have been $10 billion better off. Foreign aid during this period was only $1.1 billion, so even if aid had been cut off, South Africa would have profited by $8.9 billion.”
According to a March 2014 Forbes magazine report, “South Africa’s total outstanding external debt, or debt owed to foreign creditors, increased by 250 percent in the past ten years, and nearly 87 percent since 2008. South Africa’s external debt now totals $136.6 billion or 38.2 percent of the country’s GDP…”
Similar arguments based on the doctrine of odious debt have been raised successfully in other cases. One interesting case involves the 1947 Treaty of Peace with Italy. Under this treaty, the Franco–Italian Conciliation Commission ruled that “ ‘debts contracted by the ceding State for war purposes, or for the purpose of expanding a territory which was first annexed and subsequently liberated, cannot bind the successor or restored State.’ The ruling drew a parallel with the Italian occupation of Ethiopia, considering it inconceivable that Ethiopia should have to assume the burden of expensesincurred by Italy in order to ensure its domination over Ethiopian territory.”
What could be done about the odious debts incurred by the odious T-TPLF ?
The need for an independent debt audit of World Bank “loans to Ethiopia”
I call for an independent debt audit of World Bank “loans” to Ethiopia. (Just so my readers will not misunderstand: I am not so delusional as to believe that my call for an independent audit of World Bank “loans” will be heard in the soundproofed halls of the World Bank. I know they are stone deaf.) I have no illusions that I am speaking to a brick wall (I know there are some who say I have been doing just that for the past eight years), but speak I will to the mighty World Bank. I call, better yet, demand an independent audit of all World Bank loans to Ethiopia over the last two decades and half to determine, among other things, the
1) original terms of the loans,
2) amount of interest paid,
3) purposes for which the money loaned was used,
4) amount of money that could not be accounted for by standard accounting procedures and the World Bank’s own procedures,
5) identity of those who authorized and negotiated the loans and the legal authority they had to negotiate the debts,
6) role of the World Bank in the loan negotiations and the identity of all negotiators;
7) extent to which officials and employees of the World Bank administered the loans according to the terms of the loans, the policies, regulations and practices of the World Bank.
8) accuracy, reliability and completeness of World Bank financial and loan documents and records,
9) risk of “falsification”, material misstatements or glaring omissions in World Bank documents and records as revealed in the recent Inspection Panel (IP) Report? (Is the IP Report the tip of the iceberg?)
10) efficacy of internal financial and management control mechanisms for the World Bank in the loans it has given to Ethiopia, and
11) existence of mechanisms, policies and procedures in place to test for intentional or negligent misstatements (a/k/a bold faced lies) as evidenced in the World Bank’s demonstrably bogus claim of 10.7 percent annual growth over ten years in Ethiopia and revealed in the IP Report.
Notice to the World Bank that the PBS III loan (and any other loans) are odious debt
The World Bank should be on notice that at the right time and place its “loans” to Ethiopia will be scrutinized and challenged as odious debts. I can imagine the Bank bosses falling out of their chairs laughing at my audacious and impertinent suggestion. Let the “money-changers” who have made Ethiopia a “house of trade” walk to their bank laughing at the Ethiopian people. We shall walk to an international tribunal to vindicate the blood, sweat and tears of the Ethiopian people suffering under bone-crushing and grinding debt.
Our case for repudiation of the World Bank’s odious debt is righteous one.
We can prove by clear and convincing evidence that the World Bank provided PBS III and other loan to the T-TPLF with knowledge that the T-TPLF is an illegitimate regime that seized power by brute force and clings to power by brute force and stolen elections. (Which country in the 21st Century has a ruling party winning an election by 99.6 percent? Even Robert Mugabe, the senile and doddering 91 year –old dictator of Zimbabwe, won his last election by 61 percent.)
We can prove by clear and convincing evidence that the World Bank knew or should reasonably have known that the money it loaned to the T-TPLF in PBS III has and continues to be used for illegal purposes and in direct violation of international human rights law and the Bank’s own policies by causing the large scale deportation, forced resettlement and arbitrary deprivation of property and deaths of indigenous populations in Ethiopia. (The World Bank’s Inspection Panel’s report, “Ethiopia: Promoting Basic Services Phase III Project (P128891)” is compelling prima facie evidence of actual knowledge of the illegal purposes of the loan in Gambella.)
We can prove by clear and convincing evidence that the World Bank and its in-country representatives in Ethiopia and policy makers at headquarters knew or should have reasonably known that the money they loaned in the name of the people of Ethiopia was being used and abused in direct violation of their own policies and depraved indifference to the harm cased to victims impacted by the loan. (The World Bank’s Inspection Panel’s report is compelling prima facie evidence intentional and willful disregard of the Bank’s policies, regulations and practices.)
We can prove by clear and convincing evidence that the World Bank and its in-country representatives in Ethiopia (with actual or imputable knowledge of policy makers at headquarters) concealed, suppressed and covered up information and facts that would have shown harm to the indigenous people of Gambella by conducting three “Joint Review and Implementation Support” (JRIS) missions since it began implementation of PBS III and “keeping silent” on the harm being done to the Anuak people. We can also prove that the omissions of the JRIS are in flagrant disregard of the monitoring provisions of the Bank as required by the Bank’s Investment Lending Policy (OP/BP 10.00).
We can prove by clear and convincing evidence that the World Bank failed to exercise due diligence and reasonable care in its administration of the PBS III loan in willful and depraved disregard of its own policies, guidelines, ethical and professional standards and organizational practices.
We can prove by clear and convincing evidence that the World Bank that the World Bank knew beyond a shadow of doubt the T-TPLF is one of the most corrupt, if not the most corrupt regimes in the world. Ethiopia is the only country for which the World Bank has prepared a 417-page report entitled, “Diagnosing Corruption in Ethiopia”. (In that 2012 report, the World Bank documented massive corruption in the health, education, rural water supply, justice, construction, land and telecommunications sectors. In 2012, the World Bank approved USD$600 million for PBS III.)
The legal bottom line is that the World Bank knew its PBS III loan was contracted by a ruthless and illegitimate thugtatorship with a long history of documented massive human rights violations. The World Bank actually knew its loan money was being used to harm the Anuak people and actively attempted to conceal and cover up that fact in its official evaluations. The World Bank gave the PBS III loan with the knowledge and intention of strengthening the T-TPLF. By its own massive corruption study, the World Bank knows that it is extended a loan to a corrupt regime whose leaders operate a corrupt racketeering state within a state which siphons off loan money for the private and personal use of senior leaders and cronies.
My personal view on the non-enforceability of thug-debts and U.S. policy on African racketeering
Here I go again coining more words for the English language. This time it is a compound word, “thug-debts”. My conception of “thug-debts” is different from odious debt. I will elaborate on my theory of “thug-debt” at another time. Suffice it to refer my readers to my May 2011 commentary, “Steel Vises, Clenched Fists and Closing Walls, (Part IV)” in which I argued organizations such as the T-TPLF seize political power to operate sophisticated criminal enterprises to loot their national treasuries and squander domestic and foreign-provided resources.
The Obama Administration, in one of its efforts established a “Kleptocracy Asset Recovery Initiative (KARI)” in the U.S. Justice Department to recover the money they and their criminal cohorts have stolen from their citizens and restore it to its intended use. U.S. Attorney General Eric Holder went to Kampala Uganda in July 2010 appeared before the African Union summit to announce the launching of the program. Hold told the African “leaders”:
I’m pleased to announce that the U.S. Department of Justice is launching a new Kleptocracy Asset Recovery Initiative [KARI] aimed at combating large-scale foreign official corruption and recovering public funds for their intended – and proper – use: for the people of our nations. We’re assembling a team of prosecutors who will focus exclusively on this work and build upon efforts already underway to deter corruption, hold offenders accountable, and protect public resources.
It was a surreal moment. Announcing KARI before the African Union Summit was the equivalent of appearing before the “Commissione” of all the Mafia families from New York City, Chicago, Detroit, Miami, Atlantic City, Las Vegas, St. Louis, Los Angeles and Philadelphia and declaring war on them. In Kampala, Holder served notice to the African equivalents of the Godfathers of the Bonnano, Columbo, Gambino, Genovese, and Lucchese crime families in one place. It was a breathtaking moment. Like all of the other African initiatives of the Obama Administration, KARI proved to be all talk and no action.
In my analysis, the T-TPLF is a racketeering and corrupt organization similar to organized crime families in America. They are organized criminals in suits and brief cases. They engage in racketeering activity by using shell corporations. The World Bank knows the T-TPLF is a racketeering organization. Dr. Helen Epstien in April 2013 reported in the New York Review of Books:
According to the World Bank, roughly half of the rest of the national economy is accounted for by companies held by an EPRDF-affiliated business group called the Endowment Fund for the Rehabilitation of Tigray (EFFORT). EFFORT’s freight transport, construction, pharmaceutical, and cement firms receive lucrative foreign aid contracts and highly favorable terms on loans from government banks. Ethiopia is not a typical African kleptocracy, and there is no evidence that Meles personally benefits from these businesses. Rather, they are part of a rigid system of control that aid agency officials, beguiled by Meles’s apparently pro-Western exterior, have only recently begun to recognize.
It is unjust for the people of Ethiopia to repay thug-debts. The World Bank should man up and do right by the Ethiopian people and come clean.
The looming Armageddon of Odious Debt in Africa: A frantic call to African lawyers everywhere!
According to the United Nations Office of the Special Advisor on Africa (OSAA) and the NEPAD-OECD Africa Investment Initiative, “in 2009, with an external debt of around $300 billion, African countries spent about 16% of the continent’s export earnings on servicing their external debt.” Thirty years ago, Prof. Henry F. Jackson opined, “The foreign debt of African nations has increased so rapidly in recent years that threats of bankruptcy hover across the continent, raising the prospect that Africa’s most serious crisis will be triggered not by drought, but by debt.”
Welcome back to the future!
I call on all African lawyers everywhere to rise up and defend Africa in the looming Armageddon of Odious Debt!!!