“SICOMINES holds assets of US$90,936,120 billion”
SICOMINES, scam of the century: 90,936,120 billion $US in assets, 3 billion in infrastructure for the DRC, to China 84,736,120 billion in profit and 2,163,623,850 billion in tax exemptions
February 16, 2023
Kiki Kienge
By
Kiki Kienge
“Some of these projects are today financed by the Republic within the framework of the PDL-145 Territories project,” specifies the report of the General Inspectorate of Finance (IGF).
WIN-WIN contract
It should be the "contract of the century" for the DR Congo with the People's Republic of China (the largest contract that China has signed on the Black Continent), signed in 2008 under the regime of Joseph Kabila Kabange. A barter contract that should be "win-win", from which China should obtain long-term access to the abundant resources, especially mining, that abounds in the country of Lumumba; cobalt, copper, including petroleum and others.
The first phase dates back to September 17, 2007, it provided for obtaining a loan from the Chinese bank EXIM Bank of 8.5 billion $US. The agreement notably provided for the granting of a US$2 billion loan linked to the modernization of the mining production apparatus. Two Chinese companies, Sinohydro and CREC (China Railway Engineering) were to carry out infrastructure works, at least 3,500 km of roads, as many kilometers of railways, road infrastructure, 31 hospitals with 150 beds and 145 centers healthcare for an estimated value of 6.5 billion US.
In 2008 the second phase, the agreement was completed with an additional loan of US$5 billion.
SICOMINES
Sicomines (Sino-Congolaise des Mines), a Joint-Venture created between the Congolese State represented by Gécamines with 32%, the Chinese CREC and SINOHYDRO with 68%, for a capital of US$100 million. Which is still debatable since SICOMINES held assets of
US$90,936,120 billion .
The Chinese CREC and SINOHYDRO should bring US$68 million and lend US$32 million to GECAMINES SA, for the release of the shares of the Congolese state company in the share capital of SICOMINES, which must be reimbursed with interest of US$10,979,566 by withholdings from Gécamines dividends.
It should be noted that China obtained in particular, as described in article 6 of the barter contract;
“total exemption from all taxes, duties, taxes, customs, direct or indirect royalties, inside or on import and export, payable in the DRC. »
Conclusion of the IGF report
Here is the conclusion of a report from the General Inspectorate of Finance of the DR Congo (IGF, Agency under the supervision of the Presidency of the Republic) published on February 15, 2023, clearly demonstrates the side of the contract between China and the DR Congo , winner for China and loser for DR Congo.
For example, out of the US$10 billion in revenue generated by Sicomines, Chinese companies collected US$9 billion and only US$822 million for infrastructure in the DR Congo (more or less 11%). Which have yet to be demonstrated, since they have no impact on the social life of the Congolese, nor on visibility:
" This program has therefore completely forgotten the railway sector, the airports to be rehabilitated (Goma and Bukavu), the hospitals ( 31) to be built, the two hydroelectric dams to be built (Kakobola and Katende), the electricity distribution networks to be rehabilitated (Kinshasa and Lubumbashi), the training centers for ITP trades to be built and rehabilitated, the 5,000 social housing units to be built, the 145 health centers to be built and two universities to be built. »IGF report
.
In brief, the 31 points raised in the IGF report
- Constitution of SICOMINES in 2008 in violation of article 1 of the Royal Decree of June 22, 1926 : USD 100,000,000.00 fixed by the GEC were very insufficient and therefore disproportionate to the corporate purpose. Point 6° of this article 1 also specifies that the statutes must indicate the precise designation of the partners who must provide values with an indication of the obligations of each.
- No evaluation of the mining deposits contributed by GECAMINES SA has been made and therefore, failure to integrate the value in the share capital : the Joint-Venture Sicomines with a value of US$90,936,120,000, has not was included in the share capital as a contribution in kind from the Gécamines Group.
- Arbitrary, discriminatory and illegal character of the fixing as well as the distribution of the share capital at US$100,000,000.00 : at the rate of 68% of the shares for the GEC and 32% for the Gécamines Group (while SICOMINES held assets of USD 90,936,120,000.00). Article 2 of Law No. 77/027 specifies that foreign natural or legal persons cannot hold more than 60% of the share capital.
- Significant financial imbalance to the detriment of the DRC between the advantages granted to the Chinese party and the commitments at its expense as well as the gains expected by the Congolese party: USD 90,936,120,000.00 to the Chinese against commitments at their expense of USD 6.2 billion , ie a gain for the Chinese of USD 84,736,120,000.00 to which must be added the tax and customs exemptions estimated provisionally at the lowest rates at USD 2,163,623,850.15. Even by determining the net present value (NPV), USD 76 billion US$ of gain for the Chinese part against 3 billion US$ of infrastructure for the DR Congo.
- Glaring weakness and modesty of infrastructure investments : SICOMINES has mobilized, in 14 years, financing for a total amount of USD 4,471,588,685.14 and has only allocated USD 822,190,060.14 for the financing of construction works. infrastructure, i.e. 18.38% of the total financing mobilized.
- Paradoxically Importance of disbursements made to Chinese companies in six years : In six years, from 2016 to October 2022, SICOMINES has disbursed. US$9,677,613,625.15 to Chinese companies and itself for various unsubstantiated reasons. For US$1,564,280,538.68 "contract payment" for US$1,506,989,864.14 and other debit transactions without indication of the reason for US$3,827,943,282.32.
- Lack of visibility and impact of the works carried out and their unjustified selectivity in violation of Annex C of the Agreement of April 22, 2008 : Eligible works performed: US$534,902,461.66 Ineligible works performed: US$287,287,598.42. “and therefore these works remained, for the most part, without visible impact for the populations. » This programming has therefore totally forgotten the railway sector, the airports to be rehabilitated (Goma and Bukavu), the hospitals (31) to be built, the two hydroelectric dams to be built (Kakobola and Katende), the electricity distribution networks in rehabilitate (Kinshasa and Lubumbashi), the training centers for ITP trades to be built and rehabilitated, the 5,000 social housing units to be built, the 145 health centers to be built and two universities to be built, Some of these projects are today financed by the Republic as part of the PDL-145 Territories project.
- Unjustified indebtedness of SICOMINES, instead of a contribution of funds by the Grouping of Chinese Companies : (for USD 6.2 billion) resources whose reimbursement had to be ensured by SICOMINES. Instead, it was the SICOMINES Joint Venture which got into debt, to the tune of USD 3,341,948,821.85 to finance both mining and infrastructure investments. But at the same time, she paid herself, from 2016 to October 2022, USD 5,464,880,564.06 on her main account in DUBAI for the benefit of one or other accounts not yet identified.
- Failure to produce proof of release of CDF 25,000,000,000.00 ( 50%) of the capital during the constitution of SICOMINES in September 2008 and 50% others after approval of the feasibility study.
- Ambiguity and confusion concerning the loan of USD 32,000,000 : The loan contract sometimes states that these US$32 million were paid to Gécamines (point G of the preamble) sometimes to SICOMINES (article 4.1 of the loan contract). In the elements made available to the IGF Mission, GECAMINES SA did not provide any document certifying that it received these funds. And, for its part, SICOMINES has not submitted any bank document attesting that on April 1, 2009, its account was credited with US$32,000,000.00.
- Confusion maintained between the GEC and SICOMINES : The GEC has not formed a temporary association. Also, on the ground, the GEC seems to be confused with SICOMINES and this, in many respects, making the latter bear the responsibility for the execution of its contractual and in particular financial obligations, taken well before the latter be created. This is particularly the case of Pas de Porte of US$350,000,000.00 which it had to pay to the Congolese party (article 5.1) but which SICOMINES paid in three instalments. Case also of the loan of US$50,000,000.00 requested by GECAMINES SA at the signing of the Agreement with the GEC (article 5.2) but finally paid by SICOMINES.
- Unfortunate positioning of SICOMINES as "Borrower" of infrastructure project investments : This unfortunate positioning of SICOMINES as Borrower seriously violates the following provisions: (1) article 10.1 which says the Joint Venture will be responsible for reimbursing mining investments infrastructure, (2) article 10.2 which stipulates that the reimbursement of the financing of the infrastructure works will be carried out by the Joint-Venture; (3) 9.3 which specifies that the GEC will mobilize and put in place the financing to carry out the most urgent infrastructure works.
- Failure to repatriate export earnings and 5% fines due by SICOMINES : SICOMINES failed to repatriate export earnings totaling US$2,004,167,489.24 over the period from 2016 to October 2022. As such, it owes fines of 5%, or US$100,280,374.46.
- Almost systematic unjustified recourse to pre-financing of exports and violation of the Foreign Exchange Regulations in the DRC and the Mining Regulations : from March 2018 to October 2022, SICOMINES benefited from the pre-financing of its mineral exports paid into its main account abroad up to from 1,771,408,731, US$89. This practice is governed by Article 39 of the Foreign Exchange Regulations in the DRC. It is, in effect, a loan that the buyer grants to the exporter, which is accompanied by interest.
- Existence of several transactions reported in the monthly report sent to the BCC and the Directorate of Mines as having been debited from the main account : – USD 858.548 million for payment of various suppliers; – 1.220 billion USD for debt services; – 760.124 million USD relating to other international transfers and – 1.773 billion USD for other debit movements and term deposits (DAT). Justifications not produced to date.
- Non-compliance with the minimum quantity of production planned : SICOMINES has not yet been able to reach the projected production of at least 200,000 tons of copper in 2016 and 400,000 tons of copper in 2019, despite the importance of the investments granted or the encroachment of the deposits of GECAMINES SA This also has consequences on its ability to reimburse the investments as soon as possible in order to avoid the DRC having to undergo litigation.
- Encroachment of the deposits of GECAMINES SA by the installations of SICOMINES (a deposit with high potential) : the installations, offices and housing of SICOMINES are erected on the most important target of the probable and possible deposits which could be the subject of a significant additional reserve, following a campaign of geological exploration and certification of mineral resources. This is SYNCLINAL DE LA COLLINE D with an expected potential of 1.3 million t/Cu and the storage of backfill from the exploitation of the DIKULUWE deposit and the KAMIROMBE flakes on PE 9682 from PE 8841.
- Irregular and unjustified payment of 4.8% of the amount of the works as “Amount to be claimed” : these costs amount to USD 37,256,434.59. The legality of such a levy and the destination given to the funds thus collected pose a problem.
- Unjustified payment of ROADS/CONCENTRATES tax to the Province of Lualaba : Payments totaling USD 7,700,000.00 in favor of the Province of Lualaba without known legal basis.
- Entry in the balance sheet of the Pas de Porte of USD 350,000,000.00 and application of the amortizations of USD 59,610,144 at 31/12/2021 : Impact on operating results. Situation criticized by the auditor of SICOMINES and GECAMINES SA
- Payment of USD 51,000,000.00 to PACIFIC TRINITY without production of the relevant contract : and without proof of the pecuniary disinterestedness of the populations relocated from the SICOMINES site.
- Commercial dumping practiced and Manipulation of transfer prices: USD 7,379,469,533.52 : SICOMINES only sells its production exclusively to GEC companies at arranged prices and, no one knows on what other condition (…) its sales at LME prices for the period shows a shortfall to the detriment of SICOMINES of USD 7,379,469,533.52. This represents almost 50.37% of the turnover it would have made if it had sold at international prices.
- Undeclared and unreturned movable tax to be paid: USD 5,424,698.36 : Financial years 2016 and 2017 and failure to declare movable tax for the financial year 2018.
- Financing of the entire construction investment of the BUSANGA hydroelectric plant by SICOMINES : Financing intervened in violation of the collaboration agreement and the Joint-Venture agreement: USD 596,066,577.28.
- Total release of SYCOHYDRO's share capital by SICOMINES : Release made in violation of the collaboration agreement and the Joint-Venture agreement: USD 5,000,000.00. Majority decision.
- Imbroglio maintained in the investment repayment periods : This imbroglio served to reduce the amount of infrastructure investments from USD 6.5 billion to USD 3.0 billion. We probably wanted to delay the repayment and therefore the settlement of the debt of the DRC vis-à-vis Chinese investors.
- Questionable, complacent and outdated nature of the conclusions of the CHINA ENFI Feasibility Study : the reduction of reserves. In 2021, SICOMINES has again introduced another feasibility study for the renewal of its Exploitation Licenses. There is also a reduction in reserves to 4,747,141.90 tonnes of copper and 94,982.97 tonnes of cobalt.
- Significant imports of goods in total exemption without evidence in the financial statements : Imports of SICOMINES from 2009 to the end of October 2022, of CIF of CDF 3,413,815,915,004.00 and at an FOB in USD of USD 2,275,848,597, 00 for 1,030,005.93 tons of imported goods. Without evidence in the financial statements, SICOMINES not having produced the final balances of accounts or the general ledger.
- Systematic rejection in the Board of Directors and in the General Meeting, of the positions and opinions of the Shareholders of the GECAMINES SA Group Abuse of majority as provided for by article 130 of the AUSCGIE : It was noted on reading the minutes of the Board of Directors and the General Assembly of SICOMINES, that the opinions and positions of the representatives of the GECAMINES SA Group are always systematically rejected (…) Thus, the Mission asks for justifications as to this almost outrageous position of the Directors of the Chinese part .
- Unjustified extension to SYCOHYDRO of the advantages granted to SICOMINES by virtue of the agreement : SICOHYDRO enjoys exactly the same advantages as SICOMINES in terms of tax, customs and parafiscal exemption on the grounds that it would be a commitment of the DRC. Which is not correct because the DRC has not made such a commitment.
- Non-performance by the GEC of its contractual commitments : It is SICOMINES which has financed everything to date thanks to loans contracted with Chinese banks. Hence the need for the DRC to oppose the GEC, the "Exception non adimpleti contractus" (the exception of non-performance of the contract).