AN INDEPTH ANALYSIS ON CORRUPTION
THE BASICS, FACTS AND FIGURES
This blog paper seeks to study the agitation leading up to the declaration of corruption
as a crime against humanity and the ramifications thereto. It also portrays
grand corruption in its truest form with a collage of depictions from the
world’s renowned scholars. This is a legal, theoretical, practical, political
and ethical discourse drawing immensely from current affairs to advance its
postulations. The first part shows grand corruption as a crime against
humanity, the second part deals with the investigation and prosecution of grand
corruption as a crime against humanity, and with a righteous bias, making a
case for universal jurisdiction.
GRAND CORRUPTION AS A
CRIME AGAINST HUMANITY
There
is no universally agreed definition of corruption, however some usually define
it as, ‘an illegal act that involves the abuse of a public trust or office
for some private benefit’, or ‘the misuse of public office for private gain.’
Corruption comes from a Latin word, corruptio,
which means ‘’moral decay, wicked behavior, putridity or rottenness.” World
bank defines corruption as an ‘’abuse of public authority for the purpose of
acquiring personal gain.” and Mc Mulan says that ‘A public official is corrupt:
if he accepts money or money’s worth for doing something he is under a duty to
do anyway, that he is under a duty not to do, or to exercise a legitimate
discretion for improper reasons.’ And finally, Transparency international
defines corruption thus ‘’misuse of entrusted power for private gain.”
Grand
corruption would therefore be the magnification of this misuse, or prostitution
of office, to a large scale involving organization, and to powerful players,
involving those in the high echelons of power, forming networks unto syndicates.
Elsewhere it is said that ’Grand corruption is when politicians and state
agents entitled to make and enforce the laws in the name of the people, are
misusing this authority to sustain their power, status, and Wealth.’[1] As
for a crime against humanity according to the Rome Statute explanatory
memorandum, it is provided that they ‘are particularly odious offenses in that
they constitute a serious attack on human dignity or grave humiliation or a
degradation of human beings.’ From the foregoing definition, does grand
corruption meet the threshold to be construed as a crime against humanity?
These were the words of
Moreno Ocampo, former ICC chief prosecutor when presenting the case against
Sudan president among other crimes, crimes against humanity at the ICC, ‘’Al Bashir
organized the destitution, insecurity and harassment of the survivors. He did
not need bullets. He used other weapons: rapes, hunger, and fear. As efficient,
but silent.’’ That statement resonates with Africanist Perspective, stating
that ‘’3.5 million Kenyans facing starvation per 2011 is (because) the leaders
have consistently refused to plan ahead, opting instead for palliative measures
like food relief with lots of opportunity for graft, and blaming western
colonization, neocolonialism, climate change etc. (but this) are nothing but
distractions…that millions of shillings in aid money was stolen, thus
endangering millions of lives in northern Kenya is a moral travesty…the usual
perpetrators of crimes against humanity-warlords and their militia- kill with
guns. But corrupt and mediocre civilian leadership continues to decimate
millions more through both inaction and well calculated misallocation of
resources…because of the famine 800,000 children in the wider region could die
from malnutrition.’’[2]
There
is a significant link between corruption and child mortality for as many as
140,000 children die annually following deprival of food, medical care, water etc.[3].
Case in point is Equatorial Guinea with a population of only 700,000 people; it
is the third biggest oil producer in sub-Saharan Africa. The majority of its
population lives in extreme poverty. It has the highest child mortality rate in
the world pursuant to the 2010 United Nations and World Bank Statistics. Yet
the power wielders schmooze in choice cars and have galleries of coveted
collections of art. Teodorin Obiang, the son to the president faces money
laundering charges in France and the US, and as there are many children dying
there in infancy, with the leaders engrossed in perpetrating blatant impunity,
according to Jack Blum, an anti-money laundering lawyer, it is at par with
genocide. This statistics vindicate this statement ‘There are some forms of
corruption so grave, whose effects on human life, human dignity, and human
rights are so catastrophic, that they should shock the conscience of the
international community.’[4]
For corruption impacts societies in a multitude of ways. In the worst cases, it
costs lives. Short of this, it costs people their freedom, health, or money[5]. A
survey of a couple of scholarly works reveals a concurrence and studied disgust
in reviling grand corruption and apprehending it in the most certain way to
bring it to an end. Indeed as transparency would state, the siphoning off of
public or common resources into private pockets is unacceptable in all cultures
and societies[6]
worse, the employment of public authority to advance selfish interests. These
acts, with their attendant evils are solely responsible for human miseries.
Scholars agree that grand corruption thrives in an atmosphere of fear, of
suppression of dissident voices and under the curtain of obscurity.
Transparency asserts that Corruption thrives where temptation meets
permissiveness: where institutional checks on power are missing, where decision
making is opaque, where civil society is dis-empowered[7].
As such, the exercise of some rights is curtailed i.e. the right to information.
In Reliance Petrochemicals Ltd. vs.
Proprietors of Indian Express, AIR 1989 SC 190, the Supreme Court of India
has gone on to say that the Right to Know is an integral part of the Right to
Life and unless one has the Right to Information the Right to Life cannot be
exercised. I can’t agree more. Suppressing human faculties and the functions
thereto is nothing short of an affront to the whole human, and his humanity,
philosophically. Language and its expression is one such faculty. Man as an
intelligent being is naturally prompted to inquiry, and a check on such an
enterprise is simply rationing his humanity. Grand corruption as a vice that
usually checks the administration of our inherent humanity, by curtailing
rights that flow wherefrom, has imprisoned, enslaved many a people by
condemning them to silence and ignorance. Sample the world’s great democracies;
go through international human rights instruments, the recurring theme are the
protection of human rights by the recognition and respect of the right to know.
The Promotion of Access to Information Act, 2000 in South Africa dedicates an
entire segment of the Act to access of information from Private bodies. It has
been lauded as one of the most comprehensive worldwide. Behind those muted
lips, lie imprisoned thoughts and ideas that could be the hope of humanity,
chained by draconian laws and intolerant despots. The gravity and pain of a
constrained populace is vividly captured in these words, ‘I see a miserable
people groaning under an iron yoke, the whole human race crushed by a handful
of oppressors, and an enraged mob overwhelmed by pain and hunger whose blood
the rich drink in peace. And everywhere the strong are armed against the weak
with the formidable power of the law.[8]’
and in a conjecture so true, so profound, Akaash Maharaj the executive director
of GOPAC, beautifully rephrases that by saying ‘The world is littered with men
and women who feed on the misery of entire societies, who have grown fat in
their spoils and comfortable in their impunity, sheltering behind national
jurisdictions and national institutions that they have been able to twist to
their benefit. But there is a higher law. There is a deeper justice. And we
have a responsibility to stand up for it.’ This statement insinuates a
globalized war on graft.
Grand corruption often entails powerful players who
traverse the globe causing havoc wherever they go, and as such, local or
domestic mechanisms may sometimes prove inadequate to respond to crimes of such
a magnitude. Most national institutions are unable or unwilling or both unable
and unwilling to apprehend the perpetrators. There is usually a certain silence
or calculated lenience that is often construed as license to the perpetrators
of impunity to plough on corruption. The formidable powers at play hold
judicial and security institutions at ransom, and in the face of global
syndicates, hapless, spineless and
petrified judicial and security officers choose what is expedient to what is
right. The Global Corruption Report 2007 finds that ‘’…despite decades of
reforms to protect judicial independence, the pressure to rule in favor of
political interests remains intense. Though many judges around the world are
indeed acting with integrity, problems remain. Erosion of international
standards is evident in countries such as Argentina and Russia, where political
powers have increased their influence over the judicial process in recent
years. And for judges who refuse to be compromised, political retaliation can
be swift and harsh. Unfair or ineffective procedures to discipline and remove
corrupt judges can end up being used instead for the removal of independent
judges. In Algeria, judges considered too independent are transferred to remote
locations. In Kenya, as part of an anti-corruption campaign that was widely
perceived as politically expedient, judges were pressured to step down without
being told of the allegations against them.’’[9] A
survey of high profile anti-corruption cases reveals a consistent propensity of
the corrupt cheating the law. In R v the
judicial commission of inquiry into the Goldenberg affair ex parte Saitoti
<misc civil Application 102 of 2006> eKLR>, a three judge
constitutional ordered the Attorney General or any person to be prohibited from
filing or even prosecuting the applicant in respect of any matter relating to
the Goldenberg affair. And so easily, the greatest graft case went unchecked.
Enter universal Jurisdiction.
In declaring grand
corruption as a crime against humanity, GOPAC gave a quadripartite solution to
its prosecution.[10]
One is the expansive interpretation of the jurisdiction of the International
Criminal Court by amending the Rome statute to include grand corruption as a
crime that can be prosecuted at The Hague. Second is to empower national courts
with universal jurisdiction. Third, is the creation of regional courts and
fourth is reparation to victims of corruption. Kenya on its part has begun in
earnest on the course towards achieving this end. The judiciary contemplates
setting up a court to try international and organized transnational crimes.
Part of its aim is to bring to book the perpetrators of 2007/2008 post-election
violence. It will also try organized crimes like piracy, terrorism and drugs
trafficking. Though the idea is facing stiff opposition from the office of the
prosecutor who had dashed the hopes of Kenyans getting justice by declaring
that there wasn’t enough evidence to try the 5000 people suspected of being
involved in the post-poll violence.[11]
This is a step on the right direction as terrorism, piracy and drug trafficking
are a form of corruption and they are nourished by money laundering activities.
Drug trafficking itself involves a series of bribery and compromises.
Basically it will be aut judicare aut dedere for Nations
world over. The indictment of Chilean dictator Pinochet in a Spanish court
demonstrates this universal jurisdiction that courts may be endowed with. Leila
Sadat puts it expressly thus, ‘Successful prosecutions of crimes against
humanity must occur at the international criminal court (ICC) if it is to
succeed in its mandate to punish the perpetrators of atrocities and deter
others from committing such crimes….crimes against humanity have evolved from
the paradigm of state totalitarianism typified by the Nazi regime, many whose
leading members were tried at Nuremberg, to internecine struggles for power
between political factions that attack civilians with impunity.’[12] Global
criminal’s itinerant nature and conduct have caused mass fear and
outrage….terrorism and drug trafficking have replaced totalitarianism as
problems believed to justify limits on civil liberties.[13] Scholars
in making a case for universal jurisdiction especially the possibility of the
crimes being prosecuted at the ICC cite many a reason. Hannah Arendt counsels
that ‘Extreme evil explodes the limits of the law.’[14]
But this does not mean that this evil is incapable of condemnation through the
law but that the law has to catch up to it.[15]
Extreme evil is then qualitatively different from ordinary crimes insofar as
its nature is more serious.
The cases to whose prosecution universal
jurisdiction is invoked, differ in many a respect from those that come before
domestic tribunals primarily because of the nature of the serious nature of the
crimes being prosecuted[16]
It has been warned that there is a stalking danger that international crimes,
such as grand corruption, might be characterized as an ordinary crime in
domestic jurisdictions and this danger justifies universal jurisdiction.[17]
There is also the danger of complacent institutions and rogue governments
falling in league with the architects of impunity once government resources
have been looted and granting them amnesty, to the chagrin of the defrauded
masses.
That said, its then apparent that corruption is a perverse concept and its cultivation in international instruments is a good step towards remedying this evil.
[1]
U4: THE Anti-corruption resource center. The
Basics of Anti-corruption. (2013)
[2] [2]
Mediocre leadership is the biggest crime
against humanity in THE Africanist Perspective found at http://www.kenopalo.com accessed on February
7, 2014.
[3]
PLOS ONE: Corruption Kills: Estimating the global impact of corruption on
children deaths, found at
http://plosone.org/article/journal accessed on February 9, 2014.
[4] Akaash Maharaj, executive director of the
global organization of parliamentarians against corruption.
[5]
Question and Answers
[6]ibid
[7]
ibid
[8]
Jean-Jacques Rousseau, the state of war,
1756-1758
[9] ’
Global Corruption Report 2007: Corruption in Judicial Systems by transparency
international, 2007.
[11] Macharia Mwangi, Daily Nation, 7th
February 2014, pp 4.
[12]
Leila Sadat, crimes against humanity in
the modern age, American journal of international law,2013
[13] Michael
Bohlander,constitutional criminal
procedure, in globalization of criminal justice, Ashgate
[14] Hannah
Arendt, letter from Hannah arendt to carl jaspers (august 18, 1946), in Hannah
Arendt & Carl Jaspers, Hannah Arendt, Karl Jaspers: CORRESPONDENCE,
1926-1969, 54 (Kohler & Saner eds, 1992)
[15]
Drumbl, Mark A.,extraordinary crime and
ordinary punishment: an overview, in Atrocity, punishment, and
international law (Cambridge university press, 2007)
[16]
Prosecutor v. Deronjic, case no. IT-02-61-A, PP 136 (ICTY Appeals chamber, July
20, 2005)
[17] Prosecutor
v Tadic, case no. IT-94-1 (ICTY appeals chamber, October. 2, 1995)
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