circular letter n°004/CAB/PM of 31 May 2007 relating to the protection of the real estate of the state, public and parapublic establishments and companies.
THE PRIME MINISTER, HEAD OF GOVERNMENT
The vice-prime Minister ;
Minister of state ;
Minister delegates ;
secretaries of state ;
chairpersons of boards of directors general managers and managers of public and parapublic establishments and companies ;
liquidators of public and parapublic companies.
I have noticed that legislative and regulatory provisions governing the alienation of the real estate aree systematically lost sight of, notably within the framework of the implementation of privatization processes of those which have been dissolved.
If this violation of the law in such a sensitive sector is detrimental to the state and other corporate bodies whose real estate is often misappropriated for unacknowleged reasons, it is also detrimental to economic operators given that transactions resulting thereof may not lead to issuing them land certificates.
The circular letter therefore aims at recalling the legal framework relating thereto in view of a strict implementation on these provisions by all, so as to put an end to erring ways.
I- LEGAL FRAMEWORK GOVERNING THE ALIENATION OF STATE AND OTHER CORPORAT PUBLIC BODIES REAL ESTATE
Ordinance N° 74/2 of july 1974 to establish rules gouverning state lands and its subsequent amendements stipulates the principe of alienation of state lands while defining state and other corporate bodies private land fixing the rules governing their management.
to this end, the following form part of the private property of the state ;
personal and property acquired by the state without consideration or fo valuable law ;
lands which support buildings, construction structures and installations established and maintaind by the state ;
real property devolving upon the state by virtue of striking off or expropriation for reasons of public interest ;
Furthermore, the private property of the state may be :
allocated to public services ;
assigned to public corporate bodies ;
allocated as contribution to thecapital of companies with a right of reincorporation in the private property of the state in the event of dissolution, bankruptcy or liquidation of the said companies ;
allocated leashold or freehold to natural persons or corporate bodies.
As concerns the private property of public bodies such as public and parapublic establishments under privatizing or liquidation, it is made up of :
immovable property and rights acquired under private law ;
immovable property and rights forming part of the private of the state and transferred to the private property of the said bodies ;
immovable property and rights incorporated in thier private property within the framework of execution of projects of economic or public interest.
As regards immovable property and rihts of public and parapublic establishments, ordinance N°74/2 of 6 july 1974 above mentioned states in article 13 that instrument of alienation of the private property of public bodies other than the state shall, under pain of being declared void, bear the prior approval of the minister in charge of lands.
consequently, dealings carried out in violation the provision shall be null and void.
It is this respect that the head of state had, in the past concelled sale and compensation instrument on state public and private land in the wouri division.
This is the occasion to point out in order to deplore the fact that some managers of establishments under privatization or liquidators of those which have been dissolved don not seem to understand the meaning of the message contained in the head of state’s decision so, they continue to carry out transactions on their private property in violation of the law and regulations in force.
II - SPECIFIC PROVISIONS TO PRIVATIZATION OPERATIONS
In pursuance of article 18 of decree n°90/1257 of 30 August 1990 to enforce ordinance n°90/004 of 22 june 1990 relating to the privatization of public and parapublic establishment is settled, no asset of the establishment concerned shall be transferred during committee, unless the interministerial committee gives a prior written approval.
Obviously, some heads of public and parapublic establishment under privatization notably general managers, interim mangers and others still ignore this provision and proceed to direct sale of immovable property of the companies they head.
furthermore, these sales are generally carried out in violation of public contracts regulation that systematically provides for sanctioned.
However, it goes without saying that these dealings carried out in violation of the above mentioned decree are null and void.
III - PROVISIONS PROPER TO LIQUIDATION OPERATIONS
Liquidators of public and parapublic dissovelved companies must abide by the provisions of ordinance n°74/2 of 6 july 1974 as well as by its implementation instrument.
Moreover, they must comply with the provisions of law N°99/016 of 22 december 1999 relating to the rules and regulations of public establishment and companies of public and parapublic sector as concerns the selling out of assets.
In this aim, before proceeding to the selling out of assets, the liquidators must make sure of their free transferability and if necessary, obtain withdrawal of opposition of sureties.
The selling out of any immoveable asset must be done in conformity with the invitation to tender procedure as follows :
The liquidator drafts up the (invitation to ) tender file stipulating selection criteria and submits it to the liquidation follow-up committee put in place by the minister in charge of finance and invetably comprising a representative of the minister in charge of lands or of other structure serving as such ;
the invitation to tender is published in appropriate newspapers ;
the tender’s analysis report is submitted to the liquidation follow-up committee before the award of the contract by the liquidator.
The initator, his accomplices and the beneficiary of any transfer of shares carried out in violation of this procedure are liable to administrative and legal sanctions in force.
IV- MEASURES OF CONSERVATION
In oder to sateguard state real estate,
I urge the minister of the Economy and finance, in collaboration with the minister of state property and land tenure, to brief me every month on property transaction initiated by the managers of public and parapublic establishments and companies under liquidation as well as by their liquidators, and if necessary to send to me reports to be forwarded to the higher attention of the president of the republic.
I attach mush importance to the strict respect and rigorous implementation of the instructions for this circular letter which falls within the framework of sound maangement of state and bodies real estate.