Riara B - Grand Corruption As A Crime Against Humanity

THE 2^ND ALL KENYAN MOOT COURT COMPETITION

14^TH TO 15^TH FEB 2014

IN

THE SUPREME COURT OF PADMA

BETWEEN

RIGHTS SHIELD (APPLICANT)

AND

THE PADMESE GOVERNMENT (RESPONDENT)

MEMORIAL FOR THE

TEAM CODE: RESEARCH PAPER, RIARA UNIVERSITY, MASEKA KITHINJI

GRAND CORRUPTION AS A CRIME AGAINST HUMANITY

1. Introduction

There is no universally accepted definition of corruption. To many religious believers, all sin is corruption. To moral purists, all moral decadence is corruption. To most citizens, bribery is the epitome of corruption¹. Corruption is defined as the dishonest or fraudulent conduct by those in power, typically involving bribery.² The constitution of Kenya 2010 does not define corruption even though it refers to it severally³.

Corruption is often said to be immoral, unjust and repugnant to the ideals of humanity.⁴ As the latter illustrations show, corruption has different definitions to different people, but there is one view that is collective in society, that corruption is a wrong and immoral act; And Whoever indulges in corruptive behavior should, without a doubt be frowned upon by society.

Corruption has become part of our⁵ lives. We have seen it before our own eyes, fill our roads with potholes; deny medicines to our hospitals; literally remove desks from our classrooms. Corruption has undermined our agricultural sector and thereby our attempts to feed ourselves as a nation; corruption has denied fresh water to parched sections of the nation; corruption has systematically eaten away at the very fabric of our society. Corruption is not merely a crime; it is a crime against humanity⁶.

Corruption is a virus that has started from the roots of our homes and spread to our nation. Indeed, this virus has been prominent even before civilization. The Law and religion are important institutions to help us analyze the extent to which this “virus” has now become a crime against humanity. Whereas the law would say it is acting as a shield against this virus, by protecting society (prevention is better than cure); Religious institutions would say that this virus is as a result of human greed, and an immoral act against us is an immoral act against mankind. Why should corruption be tolerated? In fact, it should not even exist! The act of being corrupt would therefore technically be undesirable to a given society due to its decadent backdrop.

It is true that corruption exists in many if not all jurisdictions, with exceptions to a minority whose degree of corruption is limited⁷. As a result, many aspects of society are affected economically, politically and social-economically.

2. Are we Locked in the shackles of Corruption?

Indeed, corruption for many of us cannot and should not be justified as being something “trivial”. Just like some of the crimes that are deemed immoral and unacceptable in our society (Rape, murder et al) so should corruption be placed in the same list. It is unjust, it is sickening and if no action is taken against it, it will continue to spread.⁸ Once this happens of course, we expect the law to be clouded with work. If at all it will be “work”. Or perhaps a bunch of immoral people dressed as lawyers “frauding people of their hard earned money”. This picture painted does not seem pleasant (and it shouldn’t be), but is a perfect image of what corruption does to not one, but many.

A wise man once wrote, “Just as a stone thrown into a stagnant pond causes ripples, is the same reaction corruption has in a country, causing ripples of destruction.” This effect is clearly illustrated in the case of Prosecutor v. Charles Ghankay Taylor⁹ (Crimes Committed in Sierra Leone). In which Charles Taylor was charged and found guilty on 11 Counts under the Indictment. Five of these counts charged Charles Ghankay Taylor with crimes against humanity punishable under Article 2 of the Statute¹⁰, in particular: murder (Count 2), rape (Count 4), sexual slavery (Count 5), other inhumane acts (Count 8) and enslavement (Count 10)¹¹. The remaining account charged the accused with conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities (Count 9), a serious violation of international humanitarian law punishable under Article 4 of the Statute.

This case links corruption and crimes against humanity. There was a continuous supply by the AFRC/RUF of diamonds mined from areas in Sierra Leone to Charles Ghankay Taylor, often in exchange for arms and ammunition. During the period May 1997 to February 1998 diamonds mined in Kono and Tongo Fields were delivered by the AFRC/RUF¹² to the Accused by Daniel Tamba (a.k.a. Jungle) in exchange for arms and ammunition¹³.

The series of chaos that fueled this civil war may be argued in different forms. Some might say, it was the unspoken evil of the ‘dark continent’ that finally was unleashed. However, I would be accurate to say that the engine of this war was corruption. Wealth was acquired from the sight of bodies rotting, bullets working, people dying¹⁴. Is it really “just” to gain material success through people’s hard earned money? I do not agree. That is when and how corruption is not just a crime but a crime against multitudes.

3. Is Corruption a crime against humanity?

Corruption is a crime against humanity; the link is now more vivid than ever. It has been said before and it will continue to be said, “It is as a result of the past we have the present happening as it is”. Perhaps it is essential to eradicate this virus from the past to ensure our present” future” is without a doubt cured of corruption. It is not prevention it is slowly to cure our generations from this virus called corruption. By prevention, doesn’t this give corruption a chance to work right back into our jurisdiction? This needs to be stopped, not prevention but eradication!

However, not to point fingers for corruption is a worldwide problem¹⁵; in which every country has suffered the consequence of this crime. This is properly demonstrated in the Transparency International’s 2013 Corruption Perceptions Index¹⁶; the Index scores 177 countries and territories on a scale from 0 (highly corrupt) to 100 (very clean). No country has a perfect score, and two-thirds of countries score below 50. This indicates a serious, worldwide corruption problem¹⁷.

Coming Back Home

“Devolution brings accountability and taking services to the people is the only way to bring corrupt cartels that have robbed our country millions of money under surveillance”, explained the chairman of the governors’ council¹⁸. The realization corruption as affecting humanity is alive. Corruption does not affect the moon and stars, but the neighbor’s in your community including yourself. The most affected are not only the poor in the country, but the children of the nation. “Every generation has a right to recreate the world”¹⁹, it is sad to think that this virus is now becoming a norm in our society. The Education sector of Kenya can be used to illustrate the consequences of corruption. School children are out of school, unable to go through the three levels of education; (a) primary (b) secondary (c) university, because of this virus called corruption. In the year 2005 – 2009 4.2 billion shillings had been lost in the Education Ministry²⁰, in which much of the money was given by Britain to fund free primary education²¹. Money went into the pockets of people, instead of fueling and molding the future generation. I deem it fit to ask, ‘to what extent must corruption thrive to be declared a crime against humanity in Kenya?’

4. Conclusion

Our future of “vision 2030” is blurred by the actions of today. Nonetheless, it is only WE the people of this republic who are bound by this country to guard and protect our nation. If corruption is the issue, what possible solutions could we establish to conquer this problem? If Corruption is affecting humanity, so can humanity affect corruption by saying “NO”. Nelson Mandela did mention that, “A saint is a sinner that keeps on trying”²². The world is a brutish, nasty and short-lived place to be²³, but as long as we keep on trying there is hope for better days.

Corruption is a crime against humanity, that is what it is, what it should be known for, what it should be taught as and what it should be punished as.