Glencore – Africa’s textbook case of corruption supply side

Diversified commodity trading and mining multinational Glencore has taken up tenth place in global corruption’s hall of shame. In the first week of November, the UK’s Serious Fraud Office (SFO) ordered Glencore Energy UK, the UK subsidiary of the Switzerland-headquartered giant, to pay £280-million (equivalent to $325-million) after an SFO investigation revealed it had paid $29-million in bribes to gain preferential access to oil in Africa.

This follows a settlement deal agreed with US Department of Justice (DoJ) regulators in May, in terms of which the company was charged with, and pleaded guilty to, violation of the US Foreign Corrupt Practices Act (FCPA) and a commodity price manipulation scheme. Glencore was forced to pay $700-million in criminal penalties and forfeiture.

The size of the US award pushes Glencore into the big league of proven corrupting companies. It assumes its place among the enforcement log kept by the US anticorruption site, the FCPA blog. Glencore joins US-based Goldman Sachs ($3.3-billion), France’s Airbus ($2.09- billion) Brazil’s Petrobras ($1.7-billion), Sweden’s Ericsson ($1.06-billion) and Telia ($1.01-billion), Russia’s MTS ($850-million), Germany’s Siemens ($800-million), the Netherlands’ Vimpel ($795-million) and France’s Alstom ($772-million) as this list’s tenth member.

Glencore plc has set aside some $1.5- billion for estimated fines for what the UK judge, Justice Peter Fraser, described as “not only significant criminality but sophisticated devices to disguise it”. This echoes the statement of the US attorney for the Southern District of New York earlier this year that for Glencore “bribery was built into the corporate culture”. The company’s shareholders may feel that that money would be better spent on dividends or even on community-based programmes in the countries from which it derives its revenue.

The investigation that led to these record fines revealed a cavalier attitude to all international anticorruption norms, starting with the executive leadership’s attitude to win business “no matter what it takes”, according to US attorneys. Indeed, two of the individuals involved in the bribery scheme were members of Glencore’s Business Ethics Committee!

Glencore executives hired private jets to ferry money from one African country to another to pay bribes in Nigeria, Cameroon, Equatorial Guinea, Cote d’Ivoire and South Sudan. The company kept a cash desk in Switzerland to fund the bribes, which were variously described as expenses – up to $15-million worth of office expenses. The SFO reported that two of Glencore’s West Africa desk executives flew to South Sudan by private jet, carrying $800 000 in cash. The money had been withdrawn from the cash desk at Glencore plc’s Swiss headquarters and recorded as expenses for “opening [the] office in South Sudan”. The money was paid through a local agent to officials in the newly established government in South Sudan.

The SFO’s successful prosecution of Glencore represents a significant first for the understaffed and poorly funded agency, which has made a series of blunders in recent years, with costly prosecutions coming to nothing.

The Glencore case is the first in which a corporate has been convicted under the UK’s Bribery Act 2010 “for the active authorisation of bribery, rather than purely a failure to prevent it”. With a significant notch on its belt, and its £4-million ($4.64-million) costs paid as part of the settlement, its confidence to do more is likely to have increased. What is also new is the increased cooperation between international regulators and enforcement agencies – in this case, between US and UK regulators in the investigation and prosecution of Glencore. Moreover, law firms are increasingly looking to define and to represent victims of the crimes of bribery and corruption, whether they be corporate rivals that lost out on deals that were won with bribes or governments.

One such law firm is the UK’s RPC. Although the firm – representing the Federal Republic of Nigeria – lost its application in October for a portion of the criminal compensation that Glencore paid the SFO to be returned to Nigeria, a precedent exists. In February, the SFO agreed a portion of sums awarded to the UK Treasury for bribery in Nigeria would be paid to the federal government to repay Nigeria’s lost tax revenue from corruption.

The case also opens the door to these victim countries’ own regulators to act against corrupt companies. In South Africa, where Glencore has its origins, several organisations have called for the company’s activities to be investigated. Those shouting the loudest are opponents of President Cyril Ramaphosa who claim that there was something untoward in Ramaphosa’s owning shares in a coal mining company, Optimum, which Glencore acquired in 2012. Ramaphosa divested himself of the shares in 2014, when he became Deputy President.

Optimum gained notoriety following Glencore’s alleged forced sale of the mine to the infamous Gupta brothers in December 2015. Glencore rejects claims that Ramaphosa had any involvement in the company’s management and South Africa has not featured in either the DOJ or SFO findings to date. However, the DOJ and SFO cooperation on corruption investigations is relevant for South Africa’s National Prosecuting Authority. Not only are the work and costs shared, but a portion of these substantial fines could cover the costs of future anticorruption investigation and enforcement.

As for Glencore, which has admitted guilt, it claims that it is under new management and is a reformed organisation where bribery and corruption have no place. But it has had to agree to a DOJ-mandated three-year compliance monitoring programme, its former staff could face criminal investigation for their involvement and failure to prevent bribery, and the risk remains that the company will continue to face compensation claims from the victims of these crimes. As the saying goes, it ain’t over until the fat lady sings.