The inside story of Glencore's hidden dealings in DRC
06/11/2017
A copper mine seen from the air in Katanga province,
DRC.
Leaked files reveal for the first time how the secretive
firm enlisted a controversial diamond tycoon – ignoring ‘red flags’
A secretive multinational company worth billions, whose founder turned fugitive was pardoned by a president.
An Israeli diamond tycoon, rumoured to be the inspiration for a Hollywood blockbuster.
And a struggling African nation, blessed and burdened by natural resources, riven by war and corruption.
Behind the black letters of the Paradise Papers lies a world of extraordinary colour.
Obtained by the German newspaper Süddeutsche Zeitung, and shared with the International Consortium of Investigative Journalists, the Guardian and more than 90 media partners across the globe, the Paradise Papers reveal the reality of the arcane world of offshore tax havens and global finance.
And they raise serious questions about the conduct of the commodities multinational Glencore and the Israeli mining billionaire Dan Gertler in Africa.
They show that in 2009, Glencore, the world’s biggest mining company, gave a secret $45m loan to Gertler’s company after it enlisted him to secure a controversial mining agreement in the Democratic Republic of the Congo.
Over hundreds of pages, the papers expose in forensic detail how Gertler, whose previous diamond monopoly in DRC was described by the UN as a “disaster” for the country, held Glencore’s imprimatur as key negotiator with Congolese authorities.
The ‘nightmare’ diamond deal
In 1997, the 23-year-old scion of one of Israel’s most famous diamond trading families landed in Kinshasa, the dusty capital of DRC, seeking rough stones and a fresh fortune.
The African nation, bitten as hard as any by the resource curse of the developing world, had just emerged from a military coup, which changed the name of the country from Zaire and put Laurent-Désiré Kabila in control.
It was the self-declared president Gertler befriended, a move that would prove politically and commercially astute.
In Kinshasa, Gertler first met the president’s son Joseph and then the president. A friendship had begun and, according to a 2001 UN investigation, a deal was struck: $20m in cash from Gertler that Kabila would use to buy weapons and fund his war against rebels to consolidate his grip on power.
In exchange, Gertler’s company IDI was granted a monopoly on the DRC diamond trade, worth hundreds of millions a year. The deal was a “nightmare” for the country, the UN report found.
Gertler’s lawyers said he denied all allegations in the UN report and was not given an opportunity to comment before publication. The UN has not cited him “in any negative context” since 2001, his lawyers said.
The diamond deal would be the first of many. In the nearly two decades since, Gertler has become an unofficial gatekeeper in dozens of mining deals across DRC – a country the size of western Europe with a surfeit of natural resources.
But those valuable resources have not uplifted the country from poverty. Instead, they have brought war and exploitation. DRC remains one of the least developed nations. Devastated by long-running conflict and famines, it remains a place of chronic communal and state violence, where infants die at almost the world’s worst rates and nearly half of all children are stunted by chronic malnutrition.
According to the 2013 estimate of the Africa Progress Panel, headed by the former UN secretary general Kofi Annan, the unique ability of companies linked to Gertler to win cut-price mining licences and agreements in DRC cost the country more than $1.3bn, almost twice the nation’s combined health and education budgets, in one three-year period alone. Gertler’s lawyers said his companies “categorically refute” the allegations in the 2013 report, which they were not given an opportunity to respond to.
While DRC has suffered, Gertler – speculated in media reports to have been the loose inspiration for the Leonardo DiCaprio film Blood Diamond – has amassed a fortune. Forbes values his wealth at $1.22bn.
A broad, bearded man, Gertler is described as an “adventurer with a short fuse”. Fiercely private, he is shown at mines in most of the extant public photos, wearing a high-vis vest over a suit and, on his head, a helmet or yarmulke.
Dan Gertler at a copper mine in Katanga province,
DRC, in 2012.
Gertler was raised in a secular household but in adulthood has grown increasingly religiously observant. He typically spends his working week in Africa, but flies home for the sabbath in Israel with his family.
He has brought some development to DRC, building a 1,500-acre kibbutz-style farm to help address chronic food insecurity. And, in a country where sexual violence is systematically used as a weapon of war, the Gertler Family Foundation supports teenagers who become mothers after being raped, one of 50 programmes benefiting “tens of thousands of Congolese every year”, according to his lawyers.
But the Paradise Papers cast new light on background dealings between Gertler and Glencore that appear to have saved them hundreds of millions of dollars – money lost to DRC and its people.
The Glencore room
The Paradise Papers are an insight into the inner machinations of Appleby, one of the “magic circle” of leading offshore investment firms.
Glencore is one of Appleby’s most important clients. So central, in fact, has the company been that at one time, on the second floor of Appleby’s Bermuda headquarters, was the Glencore room.
Across the hall from the women’s bathroom, it was nondescript and rarely used. Glencore executives never visited. It contained no more than a filing cabinet, computer, telephone, fax machine and chequebook.
But the room gave Glencore a “robust footprint”, in the words of one Appleby MD, in the zero-tax island of Bermuda: a helpful asset in the event of any taxation investigation.
The files that are likely to have once lived in that room, and the contents of which were known only to a handful of people, are now globally exposed by the Paradise Papers.
What are the Paradise Papers? – video
The papers reveal some of the complexity of Glencore’s global operations and the breadth of its reach. Glencore is the largest commodity trader in the world and the biggest supplier of zinc and cobalt. The fruits of its products are used every day by millions, including anyone who drives a car or makes a call on a smartphone.
And Glencore is a company with an extraordinary history, founded in 1974 as Marc Rich and Co.
Rich, a former child refugee who became a naturalised US citizen after fleeing Nazi-occupied Belgium with his family, led his eponymous firm for two decades.
Marc Rich
The company forged a reputation for aggressive tactics and willingness to do business where others would not.
Glencore and its forerunner company have been accused of sanctions-busting in Saddam Hussein’s Iraq, apartheid South Africa and Iran.
In 2004, Glencore was cited by the CIA as having paid $3.2m in illegal kickbacks in violation of sanctions to Iraq’s state-run oil monopoly. It has also been accused of catastrophic environmental pollution, poisoning rivers, and allowing child labour in its African mines. The company has denied all allegations.
Rich fled the US in 1983, indicted on charges of sanctions-busting, fraud and tax evasion, and accused of arms dealing. After years on the FBI’s 10 most wanted list, he was pardoned by Bill Clinton – to whom his family had been a substantial donor – in the final hours of his presidency.
Bought out of the company in 1994, Rich died in Switzerland in 2013. But the firm, headquartered in Switzerland, has continued to drive hard for exploration and exploitation rights all over the world, particularly in resource-rich, regulation-poor Africa.
And for Glencore, when it came to doing business in DRC, one man could open all doors, including the highest in the land.
Joseph Kabila assumed the presidency in 2001, after his father was assassinated by his bodyguard. But the route to the presidential palace was unchanged.
Glencore’s key man in DRC was the president’s friend: Gertler.
Arcane deals
News organisations and anti-corruption NGOs, such as Global Witness, have spent years piecing together arcane deals involving international investors, Gertler and DRC’s leaders. Now the extent of those deals has been laid bare by the Paradise Papers and a settlement in the New York district court.
In September 2016, a New York hedge fund, Och-Ziff Capital Management, consented to a deferred prosecution agreement with the US Department of Justice, in which Och-Ziff admitted to participating in widespread and systematic bribery of government officials in DRC and other countries, and accepted a $412m penalty.
The agreement details bribery by a “DRC Partner”, described as an Israeli businessman, matching a description of Gertler, and widely reported to be him. “DRC Partner” controls a company called Lora Enterprises, the DPA states. Lora Enterprises is ultimately owned by the Gertler Family Trust.
“DRC Partner” was Och-Ziff’s key access to government figures.
The court agreement states that “DRC Partner”, together with others, paid $100m in bribes over a decade for Och-Ziff to have “special access to and preferential prices for opportunities in” the government-controlled mining sector in the DRC.
According to the agreement, at times he was paying multimillion-dollar bribes several times a month to “DRC Official 2”, known to be Augustin Katumba Mwanke, the president’s most trusted adviser, and the man with de facto control over mining contract negotiations, known as “dieu le père” (god the father) of DRC.
Gertler was not a party to the DoJ agreement and, according to his lawyers, it “does not constitute evidence of anything against Mr Gertler”.
“To the extent such agreement is alleged to relate to Mr Gertler, it did so without any participation by him or any opportunity to provide any comment whatsoever … Mr Gertler rejects absolutely any allegations of wrongdoing or criminality by him.”
Alongside the Och-Ziff agreement, the Paradise Papers shed new light on a controversial deal to mine copper in the south-east of DRC, through a company called Katanga Mining.
Several times over the course of 2008 and 2009, Gertler was called in to assist the embattled Katanga, in which he and Glencore held interests, by taking charge of negotiations with DRC, overseen by Katumba.
Over the same period, “DRC Partner” was allegedly paying millions of dollars into the pocket of the same man on behalf of Och-Ziff, the DPA states.
‘My twin brother’
In late 2007, as DRC rebuilt after a decade of war, on offer was a stake in Katanga, a poorly functioning operation but one holding some of the world’s largest copper deposits.
A bidding war for the company broke out. Gertler already had a stake, but after one bidder’s offer collapsed, Glencore won out, offering a $150m loan – convertible to Katanga shares. Aristotelis Mistakidis, a Glencore co-director, was installed on the Katanga board in February 2008.
In order to exploit its copper reserves, Katanga needed to renegotiate its joint venture agreement with DRC’s state-run mining company Gécamines, which owned one-quarter of the Katanga project.
Initially, negotiations on the JVA progressed smoothly. But by May, they had stalled, and Katanga was growing increasingly frustrated.
When Gécamines finally presented its proposal for the JVA, it differed dramatically from Katanga’s position.
On 23 June, the Katanga board met at lunchtime in the Hilton hotel at Zurich airport, and a decision was taken to break the impasse: call in Gertler. “It was agreed that the Gécamines proposals as they stood were quite unacceptable. [It was] suggested that Dan Gertler, who had a substantial indirect interest in the company, should be given a mandate from the board to negotiate with the DRC authorities,” board notes state.
Gertler had an agreement in 17 days.
Katumba was also the man with ultimate authority over all mining negotiations for Gécamines.
Elisabeth Caesens, an expert in Congolese mining deals who reviewed the leaked documents, said: “At the time, any major decision about Gécamines assets would require Katumba’s approval. He had more power over Gécamines than the minister in charge of state-owned companies.”
Katumba was key to taking anything from the ground in DRC. He had, the DoJ said, “the ability to take official action and exert official influence over mining matters in the DRC”.
In a revealing autobiography published posthumously, Katumba described his close relationship with Gertler in effusive terms: “Dan, my friend, my ‘twin brother’ … I am proud to be the brother you never had. Let us be as one, for ever.”
“All I started then, I owed to Dan,” he wrote.
Lawyers for Gertler told the Guardian that Katumba had only become acquainted with him “on a personal basis” after he had retired from the government. Gertler “categorically denies” any allegations of “corrupt relations” with Katumba.
Despite Gertler’s intervention, Katanga’s problems were still not resolved.
An excavator at Katanga.
In September 2008, the US investment bank Lehman Brothers collapsed and the global financial crisis paralysed the global economy. Commodity prices plummeted further and shares in Katanga fell to record lows.
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Katanga’s longtime boss, Arthur Ditto, left and the Glencore employees Steven Isaacs and Tim Henderson took over as chief executive and chief operating officer respectively.
By October, the JVA negotiations had stalled again. Gécamines wanted another half a billion dollars. The board of Katanga met again in October 2008.
“Gécamines … were seeking $585m additional monies … This was a substantial change from the memorandum of understanding that had been agreed and signed … it was agreed that Steven Isaacs, Steven Jones, Telis Mistakidis and Malta Forrest would have a discussion with Dan Gertler,” board notes state.
With Gertler again called in to negotiate, by December, that problem too had been solved.
The additional signing bonus demanded of Katanga – in the form of a pas de porteprice – was reduced in the final agreement by more than 75%, from $585m to $140m – a saving of $445m.
Caesens, who advises the Carter Center, the nonprofit human rights group founded by the former US president Jimmy Carter, said virtually all joint venture partners accepted to pay $35 a ton of copper Gécamines brought to the joint venture.
“Using this standard, KCC would have owed Gécamines a $581m signing bonus. Instead, it negotiated a bonus of $140m,” she said.
In a statement, Glencore said the final price was negotiated over the extent of the mineral reserves to be taken into calculations, and was based on principles agreed before Gertler was mandated to assist the negotiations.
“During the negotiations, Gécamines put forward various positions regarding the pas de porte it believed was payable … including amounts of $585m and $200m. Katanga successfully maintained its position that the sum it had previously announced was essentially correct … A joint venture agreement was concluded between Katanga and Gécamines which provided for the payment of a pas de porte of $140m,” it said.
Gertler’s lawyers said all negotiations had been carried out “in a bona fide manner on arm’s length basis”. They said there was no basis for the allegation that Katanga received “preferential terms” as a result of his involvement.
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The financial crisis continued to damage Katanga’s prospects. Globally, the copper price plummeted, and with it the value of Katanga’s shares to near-worthlessness. By December, Glencore – or another benefactor – needed to inject another $100m into Katanga to keep it running. Still, the agreement with Gécamines had not been finally negotiated.
In January 2009, Glencore upped its earlier loan – now to a combined $265m – convertible to shares. With the new money and moribund share price, Katanga would need to issue 1.4bn new shares to repay the loan, giving Glencore 77% of the company. Some on the Katanga board expressed alarm over a “backdoor takeover” of the company, but Glencore assured the firm it had no such intention.
Glencore’s intervention was opposed by other shareholders – the new capital injection would dilute their holdings to near-worthlessness – but Gertler, alone of other shareholders, was able to maintain his interest by investing $45m in the loan through Lora Enterprises.
However, the Paradise Papers show, the $45m was not Gertler’s capital, but a loan from Glencore, secretly given to Lora Enterprises. The loan, in the form of pledged shares, would have the effect of maintaining Gertler’s interest in Katanga, while other shareholders had their stakes diluted. Gertler alone received a loan.
Gertler and Glencore’s secret deal was first reported in 2014 by Global Witness, but for the first time, the Paradise Papers reveal the conditions of the loan in unambiguous detail. Loan documents confirm not only that Gertler was to be given a mandate to handle negotiations with DRC, but Glencore’s largesse was dependent upon the contract being secured quickly. The loan could be immediately called in if he were not successful.
Gertler walks through the Katanga mine complex.
“The facility shall become immediately repayable on demand in the event that the amended KCC joint venture agreement … is not finalised within three months from the date of this term sheet,” the loan agreement states.
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“Glencore shall use its vote at the board of Katanga to have Dan Gertler exclusively mandated to assist Katanga in finalising the terms of the joint venture agreement.”
Lawyers for Gertler told the Guardian that neither he nor any company or person related to him received any loan funds directly, and any allegation that the $45m loan was improper “demonstrates misapprehension of international finance transactions”.
“In the context of an African mining transaction, events of default would ordinarily include events such as the expropriation of a mining licence or breach of an underlying joint venture. The Lora loan agreement reflects appropriate terms negotiated on an arms-length basis,” they said.
Glencore said the loan to Lora “was made on commercial terms negotiated at arms length”, was filed to relevant registrars, and was fully repaid by Lora in 2010.
On 12 March 2009, Gertler resumed negotiations with DRC on behalf of Katanga. This time, he had a deal within two weeks.
The board met in late March, to good news.
“Mr Isaacs [the Katanga chief executive and former managing director of Glencore Finance] updated the board on the JVA negotiations explaining that as a result of Gécamines constantly frustrating progress, he has had to take a different approach. Mr Isaacs had a discussion with Mr Dan Gertler in Kinshasa, as a result of which, revised proposals were made by Katanga which has resulted in the resolution of most issues,” board notes state.
The final JVA was signed on 25 July 2009. Glencore now controlled Katanga and only Gertler remained as a significant co-owner. All the other shareholders had had their interests diluted.
Legal experts on corruption say Glencore should have known that the risks in using Gertler to negotiate with DRC authorities were unacceptably high.
“Glencore disregarded the many red flags Mr Gertler’s connections … should have raised, and exposed itself to the risk of non-compliance with anti-corruption rules,” Caesens said.
Mark Pieth, a professor of criminal law at Basel University, told the Guardian there were “red flags, which already in 2007 should have made it impossible for any Swiss company to enter into a business relationship with Dan Gertler”.
“The DRC is a high-risk territory in the first place. If you add to that a partner … getting access to state licence, the corruption risk becomes too high. Glencore’s compliance department should have stopped the partnership with Mr Gertler,” he said.
In a written statement, lawyers for Gertler told the Guardian and media partners that all allegations of improper behaviour were “false and without any basis whatsoever, and Mr Gertler vehemently rejects them absolutely”.
Workers at Katanga
“Mr Dan Gertler is a respectable businessman who contributes the vast majority of his wealth and time to the needy and to different communities, amounting to huge sums of money. He transacts business fairly and honestly, and strictly according to the law,” the statement said.
“There is no doubt that Mr Gertler has been a strategic investor in the DRC for many years and is highly familiar with the economic and regulatory systems therein. This fact makes Mr Gertler an important business partner for companies wishing to invest in the DRC, and the relations with him are based on clear and rational business interests. It certainly does not indicate in any way or manner whatsoever that the transactions … are tainted by inappropriate actions.”
The growing evidence linking President Joseph Kabila,
his family and close associates to bribery
and corruption.
In February, Glencore bought Gertler out of their shared assets in DRC for $534m, a move described by analysts as an attempt by the company to dissociate itself from Gertler.
DRC’s president, Joseph Kabila, did not respond to repeated requests for comment.
