Grand corruption and the international law option

Alternatives such as prosecuting the offence through regional courts would stand a much better chance of success. At least they won’t have to deal with criticism of being “too western” or “anti-African”

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By Newton Arori

Although corruption is generally harmful, it is the specific type described in the literature as “grand corruption” that is the most damaging. To put this into perspective, consider the funds lost in the infamous Goldenberg scam which cost the taxpayer at least Sh40 billion.

That money could fund the average county’s budget for close to 10 years. One can almost tell how many roads went unrepaired, or hospitals lacked essential equipment owing to the loss. Corruption is harmful not only in terms of economic cost; it also contributes to human right abuses.

Because of the massive adverse effects of grand corruption, scholars have on numerous times called for its criminalisation under international law. The justification given is that in many countries, grand corruption creates a culture of impunity in which the corrupt do not fear punishment. For instance, Friedrichs David in “Trusted Criminals: White Collar Crime in Contemporary Society” (2007) writes: “While most countries have established a legal framework to fight corruption, they often struggle to enforce their laws in practice.

Far too frequently, perpetrators are able to vitiate their national judicial systems and shield themselves from the rule of law, in direct proportion to their scale of illicit wealth and power. As a result, the worst perpetrators of corruption can be the least likely to face national justice.”

It is therefore apt to devise ways of dealing with grand corruption but first, understanding what grand corruption is and is not turns out to be extremely important if it is to be successfully legislated against and combated.

What is ‘grand corruption’?

The name might suggest otherwise, but “grand corruption” is not merely ordinary corruption on a large scale. It differs from ordinary corruption in both the scale of its effects and the nature of its operation.

Robin Palmer of the Open Society Initiative for Southern Africa explains: “Grand corruption is that which takes place at the highest level of political authority and decision making. It occurs at the formulation of public policies and may involve the appropriation or embezzlement of government funds or the tailoring and selective implementation of public laws, codes and regulations for the benefit of particular “favoured” persons or groups in return for bribes, or simply to preserve political support and power”.

According to Moses Montesh of the University of South Africa, grand corruption is defined as “corruption that involves heads of state, ministers or other senior government officials and serves the interests of a narrow group of business people and politicians as criminal elements”.

Since grand corruption clearly undermines human rights, good governance and economic development, how should it be dealt with?

International law

The preamble of the United Nations Convention Against Corruption (UNAC) acknowledges that corruption is no longer a local matter but a transnational phenomenon that affects all societies and economies, making international cooperation to prevent and control it essential.

The Convention requires state parties to cooperate internationally to implement the convention, taking into account the negative effects of corruption on sustainable development and on society [Article 62(1)], and requires state parties to establish, if necessary, any appropriate mechanism or body to assist in the effective implementation of the convention [Article 63(7)].

The convention further requires state parties to consider the possibility of transferring to another proceedings for the prosecution of an offence established in accordance with the convention in cases where such transfer is considered to be in the interest of the proper administration of justice, in particular in cases where several jurisdictions are involved, with a view to concentrating the prosecution [Article 47].

State parties are required to cooperate closely with one another, consistent with their respective domestic legal and administrative systems, to enhance the effectiveness of law enforcement action to combat the offences covered by the convention [Article 48].

The ICC option

Some have argued that corruption amounts to a crime against humanity that should be prosecuted by the International Criminal Court (ICC). Professor Michael Wabwile in his paper “Transnational Corruption, Violations of Human Rights and States Extraterritorial Responsibility: A Case for International Action Strategies”, argues that corruption cases can be classified as a crime against humanity and thus fall under the jurisdiction of the ICC. His argument stems from a reading of Article 7(1) of the Rome Statute which defines a “crime against humanity” to include “inhumane acts… intentionally causing great suffering or serious injury to body or to mental or physical health when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. Article 7(2)(a) of the same statute defines an “attack directed against any civilian population” to mean a course of conduct involving the multiple commission of acts …pursuant to or in furtherance of  state or organisational policy to commit such attack”.

According to Wabwile, therefore, corruption cases meet the above criteria. This proposition in not new; the Socio-Economic Rights and Accountability Project (SERAP) in Nigeria has in the past petitioned the ICC requesting the Court to investigate the corruption perpetrated by past governments as it amounts to a crime against humanity. The matter is yet to be decided on. The problem with this approach is that the ICC is largely seen as a struggling court at present which should not be burdened with additional tasks. Abdul Tejan Cole in “Don’t Bank on Prosecuting Grand Corruption as an International Crime” (2012) writes:

“Even if it were possible to amend the Rome Statute, it is uncertain that the ICC would be able to utilise it effectively. The court currently faces serious political obstacles, not least among them enforcing its arrest warrants. The African Union decided not to enforce the arrest warrants for either Sudanese president Omar Al Bashir or before his death, Libya’s Muammar Gaddafi. To date, over ten years since it came into existence, the ICC is yet to secure its first conviction…”

The other challenge is that “grand corruption” is difficult to define. Specifically, what categories of people would be capable of grand corruption? While there is general consensus that it is senior government officials and other “high level” individuals, at what point are individuals considered high level? How much money would have to be looted or misappropriated for the act to be considered as amounting to grand corruption? How much physical or mental damage has to be sustained by the population to meet the threshold of grand corruption, and how would such damage be assessed? Is it even possible at all? Finding answers to these questions is sure to be an uphill and protracted task.

International Anti-Corruption Court

Another proposition in dealing with grand corruption has been to set up a separate tribunal modelled on the ICC to try such crimes. Internationally, this idea is being spearheaded by Judge Mark Wolf of the United States, who is proposing the establishment of an International Anti-Corruption Court (IACC).

Justice Wolf argues that “massive violations of human rights by high level officials in countries with a culture of impunity led to the creation of the International Criminal Court, in 2002, for the prosecution of genocide, crimes against humanity, and war crimes. An International Anti-Corruption Court, as part of the ICC or as an independent entity, is now equally necessary and appropriate because of the consequences of grand corruption.” He further suggests that in order to ensure that countries submit to the jurisdiction of the IACC, “submission to the jurisdiction of the International Anti-Corruption Court should be incorporated into the United Nations Convention against Corruption. It should also be made a condition of membership in international organisations such as the Organisation for Economic Cooperation and Development (OECD), and WTO, and for obtaining new loans from international lenders.

Though this proposal is made with the best intentions, many have (justifiably) expressed scepticism as to its viability. Prof Mathew Stephenson in his paper “The Case Against an International Anti-Corruption Court” notes that adopting any of the above sanctions would require the agreement of many of the same countries which would not want to join the court in the first place.

Stephenson further notes that even if the conditions were somehow implemented, the attempt to force submission to IACC would likely backfire. In his words, “the result of forcing countries to choose between accepting IACC jurisdiction and suffering punishment is likely to be that countries opt for the later rather than the former thus (a) causing the WTO to collapse and thereby destroying the international trading system and (b) denying loans to countries that need them most (and where the economic development those loans support might make real contribution to the fight against corruption).”

Lastly, even in the very unlikely event that countries are forced to submit to IACC jurisdiction, it would create perceived neo imperialism of the whole enterprise, which would in turn provoke hostility towards the court. Perhaps alternatives such as prosecuting the offence through regional courts would stand a much better chance of success. At least they won’t have to deal with criticism of being “too western” or “anti-African”.

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