RESEARCH PAPER
ON
GRAND CORRUPTION AS A CRIME AGAINST HUMANITY
TEAM CODE: 115
TASKED BY: All Kenyan Moot Court Competition
RESEARCHER: Kevin Onchong’aOmwanza[1]
GRAND CORRUPTION AS A CRIME AGAINST HUMANITY
ABSTRACT
This 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.
Introduction
There is no universally agreed definitionof corruption, however some usually define it thus, ‘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.”[2]World bank defines corruption as an ’abuse of public authority for the purpose of acquiring personal gain.” and McMulan 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.’ Andfinally, 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 misusingthis authority to sustain their power, status, and Wealth.’[3] According to the Rome Statute explanatory memorandum, it is provided that grand corruption ‘are particularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of human beings.’Bassiouni argues that anything atrocious committed on a large scale is a crime against humanity.[4] From the foregoing definition, does grand corruption meet the threshold to be construed as a crime against humanity?
To establish grand corruption as a crime against humanity, there must first be congruence between the character of grand corruption and crimes against humanity. For a crime to constitute a crime against humanity, it must be, or bepart of, a widespread or systematic attack on a civilian population with a prior knowledge of the attack.[5]However it should not be interpreted to mean that the perpetrator had precise details of the plan or policy of the state or organization, the mental element would then be satisfied if the attacker intended to further such an attack.[6]The mental element would obviously prove difficult to prove as Bantekas argues that though grand corruption meets the actusreus of crimes against humanity, the mensrea, the clear intent to destroy is missing.[7] But none can be ignorant enough not to know that a systematic deprival of food or medical care or water etc is wont to ultimately cause death, or great suffering. Therefore, any act or omission, intended to cause such a distress, or negligent that such a distress would be caused, and such an act or omission ensuing from a person or persons whose responsibility or demands of their office require of him integrity in case of an act, or vigilance in case of an omission, and such an act or omission being part of a bigger scheme to cause widespread distress, constitutes a crime against humanity. As such, grand corruption by its very nature and manner of execution constitutes a crime against humanity.
Grand Corruption in Practice
These were the words of Moreno Ocampo, former ICC chief prosecutor when presenting the case against Sudan president for, inter alia, crimes against humanity: ‘’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.’’[8] That statement resonates withthat of Africanist Perspective, stating that ‘’3.5 million Kenyans were facing starvation per 2011 (because) the leaders consistently refused to plan ahead, opting instead for palliative measures like food relief with lots of opportunity for graft, andblaming 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…and because of the famine 800,000 children in the wider region could die from malnutrition.’’[9] From the foregoing a picture is emerging of the broad construction regarding culpability for crimes against humanity, for example, complacency where duty lies to apprehend, or outright participation in the violations, would both be equally condemned as crimes against humanity. States ought to intervene pursuant to their duty to protect.[10] Indeed, most cases of large scale or massive human suffering, morbidity and mortality are man-made. They are not the result of accident or force majeure; instead they flow directly from deliberate human action. This action, namely grand corruption is responsible for untold suffering.[11]
There is a significant link between corruption and child mortality foras many as 140,000 children die annually following deprival of food, medical care, water etc[12]. 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. TeodorinObiang, 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,[13] 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.’[14] 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[15]. 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.[16]Worse, the employment of public authority to advance selfish interests is condemnable. These acts, with their attendant evils are solely responsible for human miseries. Their impact on human life is so catastrophic.
It is easy then to see the ‘widespread’ element in perspective, the ‘attack’ being well orchestrated administrative policies inspired by state capture[17] practice, or the norm ‘hear no evil, see no evil, speak no evil’, and the ‘civilian population’being the masses in mortal despair, languishing in pain and suffering.
Rationing Rights
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 disempowered[18]. As such, the exercise of some rights is curtailed i.e. the right to information. In Reliance Petrochemicals Ltd. v 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. 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.[19]’ and in a conjecture so true, so profound, AkaashMaharaj 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.’’[20] 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 court 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.
Prosecution of grand corruption
In declaring grand corruption as a crime against humanity, GOPAC gave a quadripartite solution to its prosecution.[21]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.[22] 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 briberies and compromises.
Basically it will be autjudicareautdedere[23]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.’[24]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.[25]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.’[26] 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.[27] 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[28] 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.[29] 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. In light of talks of amnesty for the perpetrators of grand corruption in Kenya, Jim Onyango observed that the plan to offer amnesty to the architects of past corruption is wont to dash the hopes of Kenyans ever recovering more than 200 billion Kenyan shillings lost to corruption orchestrated at high levels in the last two decades.[30]
As evidence of universal jurisdiction’s efficacy, a grand corruption case brought by the Nigerian SERAP before ECOWAS community court of justice is telling. SERAP argued that Nigerian’s right to education had been breached, and cited an international convention, the African charter on human and people’s right as the applicable law. The court explicitly considered corruption a violation of human rights. The case also resulted in the recovery of N3.4 billion that had been stolen from the national education budget.[31] Further, The ICC has considered powers to trace, freeze, and seize stolen funds and can exercise jurisdiction where other domestic or international remedies are unavailable.[32] As such, the only viable option for the prosecution of grand corruption cases is the grant of universal jurisdiction to domestic courts, or the expansive interpretation of the Rome statute or the creation of regional courts.
In conclusion, grand corruption as a vice that threatens our development, that accelerates our deaths; the sole cause of misery, must be fought arduously, with all resources at our disposal. Scholars agree that the greatest impediment to the fight against graft is a complacent, apathetic or resigned populace,[33] therefore, emancipation of the public on their rights, and empowering civil societies will be key in this fight.