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Ever wondered why negotiating cargo claims or retrieving bank guarantees can be so tough in Algeria?

One of the reasons is that under Algerian anti-corruption laws, an error or oversight which has led to “bad business results” exposes the individual concerned to being charged and possibly imprisoned for “economic crime”.

The government carries out audits with a view to ensuring that no economic crime is being committed, the idea being that a manager whose decision has resulted in a loss, may have sought to gain personally from a transaction.

To protect claims managers, local cargo insurance agencies have therefore set up commissions to make all the decisions about the level of claims settlements in the light of the company’s economic performance.

Each local insurance branch acts independently to ensure that their branch is constantly in the black throughout the year.

When the insurance agency is likely to make a loss, the commissions adjust claim settlement levels upwards.  The merits of the claim have little if any role to play.

The criminalization of individuals for their decisions is resulting a climate of fear and a very cumbersome system.

All is not lost, however.  In the 45-odd years that it has been operating in all of Algeria’s ports, Budd is fully familiar with the country’s complex evolution and has an in-depth knowledge of how the system works.

Budd’s guarantees are accepted by all claimants and, according to recent press reports, the Algerian President has just instructed the government to prepare appropriate legislation to decriminalize the management act, as this will hopefully end a situation which makes victims of executive managers.

Below is the translation of a recent article published in the Algerian media by “Horizons”:

Quote

The Legal Framework for the Depenalization of Administrative Acts Will Be Redefined by President AbdelmadjidTebboune

“An employee or manager has the right to make an administrative error or misjudge certain situations. However, on the condition that they do not derive any personal benefit, nor does their entourage, friends, or anyone else, from this managerial error. In this case, they benefit from total protection.”

State officials protected if they do not derive personal interest

With these words, the Head of State, AbdelmadjidTebboune, in his capacity as President of the Supreme Council of the Magistracy (CSM), stated unequivocally at the opening of the new judicial year 2024-2025 that state officials and managers are protected by the force of law in the event of errors committed in the exercise of their duties, provided that they are not motivated by personal interest.

According to Dr. Omar Haratache, professor of public law at the University of M’sila, “the President has committed himself, after 2019, to relaunch efforts to combat corruption. He has, in particular, denounced the actions of the ‘Issaba’*, accused of disinformation. This group never ceases to remind officials, at whatever level, that signing a document can expose them to legal proceedings.”

The distinction between “acts targeted by the law” and “management errors”

The President thus wished to reiterate, once again, that “this repressive aspect is not the main objective of the policy of fighting corruption and the change he defends,” stresses Haratache, affirming that “this approach is part of a desire to reassure officials and to redefine the contours of this fight.”

For him, “the Head of State has ensured, through legal texts and the criminal policy applied, to distinguish criminal acts targeted by anti-corruption law from management errors.” In this regard, he recalls that “when management errors are not motivated by bad faith or personal interest, they cannot be subject to criminal prosecution.” He adds that “the President has also insisted on the need to differentiate between acts of management and acts of a criminal nature, an essential distinction to protect executives and promote sounder management of public affairs.”

Promoting investment

In a previous speech, continues Haratache, “he even used a familiar expression, saying that the decisive criterion is ‘the fact of putting something in one’s pocket’,” indicating that “it is only when the act is committed for dishonest personal gain that it goes beyond the framework of management acts to enter that of criminal offenses punishable by anti-corruption law.”

Insisting on the importance of protecting executives, he assures that “the state’s commitment to offering them guarantees allowing them to exercise their functions freely, without fear of sanctions for errors made in good faith in the exercise of their functions, is a pillar of this policy.” Haratache will also say that “the judicial system is responsible for applying this distinction, as the President recalled at the opening of the new judicial year.”

Moreover, this approach promotes an environment conducive to investment and development. This is why, he explains, “the President wants to strengthen the confidence of executives and managers. This policy is essential, especially in the context of Algeria mobilizing the largest budget envelope in its history, amounting to 128 billion dollars, to launch major projects.”

Strengthening confidence in the judicial system

If the projects entrusted to state officials require creativity and initiative, they must, however, not escape the vigilant eye of the laws of the Republic, in order to prevent any form of deviation or excess. All the more so since the progress made in institutional construction, particularly in the judicial field, is able to preserve the freedom of action of executives in the conduct of various development projects.

In this regard, affirms Haratache, “the President recalled that the independence of the judiciary is based not only on legal texts, but also on adequate social conditions for magistrates, such as fair salaries and decent housing.”

“Judges bear a heavy responsibility”

The professor of constitutional law at the University of Algiers, Rachid Lourari, agrees. He affirms that “judges bear a heavy responsibility, because they embody the tool for protecting rights and freedoms, whether individual or collective, within society, hence the concentration of reforms and fundamental measures, particularly on the human aspect of the judicial system in Algeria.” Because, he specifies, “the human element is the key tool in the implementation of all reforms, particularly those related to the protection of rights and freedoms and the fight against all forms of excesses, deviations or corruption that may arise.”

He will add: “We have a judicial system that is being strengthened by the political will to contribute to the country’s economic change.” For the constitutionalist, this structural overhaul aims to strengthen confidence in the judicial system and to establish a climate where justice prevails. The reforms carried out aim to ensure that the law is respected and applied, regardless of the position of individuals within the state. He then specifies that “the ultimate objective of the Head of State remains to accomplish the mission of making justice more efficient and strengthening confidence in the administration.”

Unquote

*The term “Issaba” in the Algerian context refers to a powerful oligarchy or clan that was associated with the former regime of Abdelaziz Bouteflika. This group was seen as corrupt and having significant influence over Algerian politics and economy.

I can only be hoped that the reform will have the desired effect.

In the meantime, Budd is by your side for advice and assistance.

Information provided by Budd Algeria (budd.algiers@budd-pni.com)