Kabarak B - Grand Corruption As A Crime Against Humanity

THE 2^ND ALL KENYAN MOOT COURT COMPETITION

14^TH TO 15^TH FEB 2014

IN

GRAND CORRUPTION AS A CRIME AGAINST HUMANITY

RESEARCH PAPER

BY

LUCY NJOKI

TEAM CODE: 112

Introduction

Black’s Law Dictionary¹ defines ‘Grand’ as ‘of or relating to a crime involving the theft of money or property valued more than a statutorily established amount and therefore considered more serious than those involving a lesser amount’. ‘Corruption’ is defined as ‘the act of doing something with an intent to give some advantage inconsistent with official duty and the rights of others; a fiduciary’s or official’s use of a station or office to procure some benefit either personally or for someone else, contrary to the rights of others’. Grand corruption therefore, can be viewed as large-scale corruption. Large amounts of money and high level officials are involved. Crimes against humanity on the other hand have been defined in various statutes. The Rome Statute has provided a list of offenses it terms to be crimes against humanity. For them to be referred to as such, the acts have to be committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack. It defines an ‘act directed against any civilian population’ to mean a course of conduct involving multiple commission of the acts it refers to as crimes against humanity, against any civilian population pursuant to or in furtherance of a state or organizational policy to commit such an attack.² The trial chamber in The Prosecutor v Jean Paul Akayesu³ stated that the concept of widespread may be defined as massive, frequent, large scale action carried out collectively with considerable seriousness and directed against a multiplicity of victims. It went further to say that the concept of systematic may be defined as thoroughly organized and following a regular patter on the basis of a common policy involving substantial public or private resources. There must be some kind of preconceived plan or policy. Article 3 of the Statute of the International Criminal Tribunal for Rwanda specifies that the crimes must have been committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic or religious grounds.

How does Grand Corruption become a crime against humanity?

Grand Corruption destroys credibility and confidence in a government and its organs.⁴ For there to be political stability in a country, people have to have faith in their government and its ability to do things in a transparent way, and in service to the people. People lose respect for authority and the law where it is revealed that the government of the day is carelessly using funds, or that leaders are selfishly using public funds for their own gratification. Leaders therefore get insecure about themselves and the positions they hold therefore they may try to do anything to retain their positions including bribe their way through elections, raise the ethnicity card and blame people’s troubles on another ethnic group and all other available measures to help themselves retain power at whatever cost. In the end, a change of government occurs only through violence,⁵ which leads to massive bloodshed, people end up being displaced from their homes in an effort to escape a situation that has been selfishly created to cover up dirty deeds. This is not new to Kenyans. Thousands of them are affected whenever there are ethnic clashes. Elections and sometimes change of government have occurred through violence. Many people have lost their lives through electoral violence. Rigging elections is a form of corruption. It undermines the people’s faith in the government and it is easy to incite persons to demonstrate or cause chaos in protest to a regime that is viewed to be illegally in power. These bursts of violence often lead to murder, torture, rape, persecutions on ethnic grounds and displacement among other inhumane acts. It is sad to note that some and most of these problems have their root in grand corruption. Kenya lost over 1000 people in the burst of violence that ensued after the elections held in 2007. In the public sector, grand corruption leads to wastage of resources. Money meant for infrastructure is used for personal gratification instead of what it was planned for.⁶ If meant for the construction of roads, non-use contributes to the road’s deteriorating nature and the subsequent accidents due to compromised safety measures compromised. In other instances, funding that may have been used for the construction of a hospital or school when channeled towards unnecessary use leads to masses being deprived of their right to the highest attainable standard of which includes the right to health care services and the right to education. Human dignity is upheld when people are able to have access to hospitals and to good quality medicine. In a society where people do not have mechanisms in place to facilitate the achievement of their right to health, then the right to inherent dignity⁷ and the right to have that dignity respected and protected is violated. Similarly, in instances where there were prospectors seeking to invest in a country, constant acts and reports of corruption would lead them to invest in other countries. Funding that would have been very beneficial to the country and its people is therefore lost and as a result hospitals are left without basic drugs, schools without facilities, roads are left unfinished or not even done in the first place. Grand corruption incurs heavy economic costs; it distorts the operation of free markets and slows down a country’s economic development.⁸ Countries are unable to deal with poverty when there is grand corruption as it leads the country further down that road.⁹ The judiciary is the custodian of law and order in a country. If affected by corruption then the people in a country hardly have anywhere else to get justice. If the arm of government that has the role of acting as a check to the rest of the arms of government cannot adequately perform this function, lawlessness will prevail. Plus, where this becomes rampant at the highest echelons of power, then who is to preach integrity to the ordinary citizen or call out for the spirit of nationalism? The law and policy makers determine the extent of corruption that exists in a country since the law defines what constitutes a crime, and in this case, a crime against humanity. Where the law makers give a blind eye to grand corruption and its effects or work it in their favour,¹⁰ it will continue to thrive and cause the downfall of the very society they represent.

Conclusion

Grand corruption destroys a people’s faith in their system. Corruption is endemic in Kenya today. It is everywhere. Everyone knows it exists. When one speaks of the failures of a state or an organization, the phrase ‘grand corruption’ finds its way into the explanations given. Grand corruption has been part of the dark history and still is a major problem facing Kenya. Grand corruption leads to deficits of funds in a country's budget, which leads to joblessness, this in turn leads to higher rates of crime and consequently many people are subjected to atrocities in the course of the commission of crimes. The Goldenberg scandal, it was said, led the country to a loss of billions of shillings. About 56.3 billion was lost to the Anglo-leasing¹¹ scheme. Banks were closed after this,¹² and many people lost their jobs. Taxpayers bore the burden of it leading to inflation and devaluation of the shilling. Corruption was the backbone of the Goldenberg scandal and the Anglo-leasing scheme, some of the best known cases of grand corruption in Kenya. Grand corruption prevents growth of an economy since it reduces the efficiency of public spending, the effectiveness of public service delivery, and the attractiveness of the investment climate¹³. Grand corruption in Kenya has hampered progress, led to political instability, poor provision of amenities, the disappearing of foreign aid, a weaker productive capacity, reduced administrative efficiency and undermined legitimacy of public order and public institutions.¹⁴ Many nations have been faced with this problem as expressed in The United Nations Convention against Corruption which in its preamble, shows that states have been curbed with serious problems and threats posed by corruption to the stability and security of societies, it has undermined institutions and values of democracy, ethical values and justice and has jeopardized sustainable development and the rule of Law.¹⁵ Corruption may lead to acts of terrorism, where funds are inappropriately used for unknown projects. These funds could be used to finance acts of corruption. . All the things that emanate from Grand corruption lead to widespread suffering and other inhumane acts. Deaths caused by tribal clashes, roads that are in poor condition because of misused funds, hunger because of poverty or misuse of allocations, lack of housing and improper sanitary conditions, among other things mentioned above, are all contributors to human suffering.

Recommendation

Radical mind surgery; There has to be a change of mind in the way corruption is seen today. People have to remove it from the pedestal of ‘usual things that happen in society’ and refuse to allow it to go unpunished. Where there is suspicion of grand corruption, there should be full investigations carried out and persons involved, prosecuted. There should be open and transparent reports made available to members of the public. Investigations conducted and the results yielded should not be kept secret from the public. This promotes active participation of individuals and groups outside the public sector and raises public awareness regarding the existence, causes and gravity of and the threat posed by corruption.¹⁶

Laws made should be adhered to. Enforcement mechanisms should be put in place and kept running. It is said that the best place to hide something is in plain sight. This should not be what informs institutions charged with combating corruption. They cannot be seen or afford to be suspected of being corrupt themselves as this defeats the whole purpose of their existence. A state ought to take measures to ensure transparency in public administration.¹⁷ Property that is acquired through corrupt channels should be confiscated¹⁸; this will help deter others from trying the same scams to illegally acquire property. Having made provisions for the recovery of assets, the authorities should go on to do the same. They should not be efforts only laid down on paper. A free, proactive and independent media; the media can be used to publicize the country’s efforts at combating corruption, thereby helping to restore the faith of the people in their government¹⁹. The free and independent media could also carry out its own investigations and air its results on the ways of the government. This would keep the public officials on their toes and contribute towards the eradication of grand corruption in the country. Sources should also be kept anonymous to encourage people to come forward and report cases of grand corruption.

Nationalism to be included in school curriculum; Children are the future of any society. Presently, most people believe and have accepted corruption to be a daily and regular affair. It is important, for the future of this and any other society that the children ought to be taught what is right and what is wrong. They should be taught to reject or change the bad things, not accept them. Persons with a history of being involved in grand corruption should be barred from vying for positions during elections. Chances are that these persons will continue to enrich themselves at the expense of the people they are supposed to represent.

APPENDIX

BIBLIOGRAPHY

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