UoN Kisumu - Grand Corruption As A Crime Against Humanity

THE 2ND ALL KENYAN MOOT COURT COMPETITION.

DATE 14^TH TO I5^TH FEBRUARY 2014.

VENUE: KENYATTA UNIVERSITY SCHOOL OF LAW

A RESEARCH PAPER ON:

GRAND CORRUPTION AS A CRIME AGAINST HUMANITY.

TEAM 105.

GRAND CORRUPTION AS A CRIME AGAINST HUMANITY

MAULEEN NELLY AWUOR¹

Abstract.

This research seeks to relate grand corruption and crimes against humanity and to see whether or not it is possible to prosecute grand corruption as an international crime and how easy or hard is it to achieve that.

“We believe there are some forms of corruption so grave, whose effects on human life, human rights, and human welfare are so catastrophic, that they should shock the conscience of the international community and mobilize the will of nations to act across borders,” Akaash Maharaj² told a side event on one of the United Nations Convention Against Corruption (UNCAC) conference in Panama City³.

Introduction

There is no specific definition of actually what is corruption but a number of renowned people have tried to give it a definition of course in their own understanding. Analytically speaking, the most promising answer is the one made by Vito Tanzi⁴: “Corruption is the intentional non-compliance with the arm’s-length principle ⁵ aimed at deriving some advantage for oneself or for related individuals from this behavior.

Background of corruption as an international crime.

I think corruption doesn’t have a history per se because it can be dated back to the history of our cultures and traditions e. g where it was only the king who was to own land back in the B.C in Britain Only that it did not look like corruption at the time.

Grounds of discussion

1. Causes of (Grand) corruption

2. Consequences of grand corruption

3. Grand corruption as a crime against humanity

4. Recommendations

5. The difficulty of prosecuting grand corruption at an international level

6. Conclusions

CAUSES OF (GRAND) CORRUPTION.

There are numerous reasons of which an individual would decide to actually be corrupt. The following are the some of them that caught the attention of this research⁶:

1. a clear opportunity such as the envelop of cash sitting at the parking lot.

2. Little chance of getting caught. This lack of accountability comes primarily from:

1. A lack of transparency, for example when public officials do not inform about or explain what they are doing, including a declaration of their wealth, houses and cars

2. Weak enforcement whereby law agencies do not pose sanctions on power holders who have violated their public duties. This is the case when, for example, the judges are in the pay of the ruling parties or there are too few police officers to enforce the law.

3. Bad incentives e. g a clerk not earning a lot to live on or not being sure that he will have a job tomorrow so that he supplements his income with bribes

4. Attitudes or circumstances that make average people disregard the law. People may try to get around laws of a government they consider illegitimate (e. g not paying taxes to the apartheid government in South Africa. Poverty or scarcity of goods e. g medicine) may also push people to live outside the law.

Consequences of grand corruption

The main reason corruption is so harmful to society is that important decisions affecting the allocation of resources are determined by ulterior motives – with little or no concern for the impact that these resource misallocations will have on the society that should be honestly served by the corrupt decision-makers. The general consequences of corruption and consequent bad governance are encapsulated in the first paragraph of the preamble to the UN Convention against Corruption (2003), which notes that State Parties are:

Concerned about the seriousness of problems and threats posed by corruption: to the stability and security of societies; undermining the institutions and values of democracy, ethical values and justice; and jeopardizing sustainable development and the rule of law...

The wide-ranging negative effects of corruption and corrupt political activities on society as a whole can be grouped into three broad categories: the undermining of fundamental human rights; the undermining of good governance; and, the undermining of economic development.

Undermining human rights: Numerous fundamental human rights are violated by corrupt practices and corrupt political activity, including so-called first generation rights, such as the right to dignity, privacy and equality, as well as second-generation social rights, such as the right to a healthy environment, the right of access to housing, healthcare services and social security, and the right not to be arbitrarily deprived of property.

Undermining good governance: It is clear that there is an inter-causal relationship between corruption and good governance, and that the effective guarantor of good governance is the effective application of the rule of law. In recent times, major international financial bodies – namely the International Monetary Fund, the World Bank and the United Nations Development Programme – have treated corruption and corrupt political activities as governance issues, and they have increasingly been attaching Preconditions of good governance – such as accountability, transparency and adherence to the rule of law – to financial assistance packages to promote economic development.

Undermining economic development: In Africa in general, extensive research has shown that the misappropriation or misallocation of resources intended for economic development by the grand corruption of individuals and groups in power is the major driver of economic underperformance and the perpetuation of the cycle of poverty in these countries. The knock-on effects are numerous: the withdrawal of, or reduction in, foreign direct investment; the distortion of resource allocation resulting in increased costs of goods and services; the wasting of money on large prestige projects – where the opportunities for graft and kickbacks are greater – to the detriment of basic services such as social welfare, health and education; the entrenchment of petty corruption, in this context sometimes also referred to as ‘survival’ corruption to supplement unrealistically low wages; the increase in violent criminal activity such as robbery due to unemployment and extreme wealth disparities; and, the development of ‘shadow’ economies as a prelude to the institutionalization of corrupt practices in a pervasive culture of corruption.

There are also external drivers and facilitators of Grand Corruption, including the tolerance, and even support and protection, of notoriously corrupt states by powerful non-African states to ensure and perpetuate economic, strategic or political advantages; the banks and other financial institutions that accept stolen billions from corrupt African leaders; and, private companies that pay bribes to secure lucrative contracts.

The problem is huge, requiring a multi-pronged approach and much has been written about it. However, nothing so far seems to have managed to stem the tide of corruption and bad governance – hence the need for new thinking and new approaches.

Grand corruption as a crime against humanity

Corruption costs nations billions in lost revenue. U.S.-based campaign watchdog Global Financial Integrity (GFI) estimates that developing countries alone lost $859 billion due to illicit financial outflows including corruption, the proceeds of crime and commercial tax evasion. Campaigners say that corruption is not just an economic issue but also a human rights issue because the public wealth lost to graft could eradicate extreme hunger and poverty globally.

First launched in 1995, the Corruption Perceptions Index has been widely credited with putting the issue of corruption on the international policy agenda. The Corruption Perceptions Index ranks countries and territories based on how corrupt their public sector is perceived to be. A country or territory’s score indicates the perceived level of public sector corruption on a scale of 0 - 100, where 0 means that a country is perceived as highly corrupt and 100 means it is perceived as very clean. A country's rank indicates its position relative to the other countries and territories included in the index. This year's index includes 177 countries and territories.

Grand corruption infringes on the social and economic rights of humanity at large e. g

Education

Education is a fundamental human right and a major driver of human and economic development. It strengthens personal integrity and shapes the societies in which we live. Since education typically comprises 20-30 per cent of a country’s budget, it is critically prone to corruption, from national education ministries to local schools and universities.

The cost of corruption is high. Stolen resources from education budgets mean overcrowded classrooms and crumbling schools, or no schools at all. Books and supplies are sometimes sold instead of being given out freely. Schools and universities also ‘sell’ school places or charge unauthorized fees, forcing students (usually girls) to drop out. Teachers and lecturers are appointed through family connections, without qualifications. Grades can be bought, while teachers force students to pay for tuition outside of class. In higher education, undue government and private sector influence can skew research agendas.

The end result is limited access to – and poor quality of – education, and a social acceptance of corruption through a corrupted education system.

No teacher should be appointed without proof of their qualifications and experience. We must also push for exam regulations to be widely published. And we must monitor grading, so students won’t have to buy their way to good mark.

The difficulty of prosecuting grand corruption at an international level

“While most countries have established a legal framework to fight corruption, they often struggle to enforce their laws in practice because those who have grown rich and powerful through corruption are able to shield themselves from the rule of law in their home countries,” said a paper published by GOPAC earlier this month. Most prosecutions for grand corruption today take place at the national level but there are few successes. Institutions that have the power to prosecute lack the independence to do so and those that have the will lack the power. There is also a deficit of political will and adequate legal frameworks and machinery to prosecute those most likely to be engaged in grand corruption – those in power. The solution seems to be a combination of various approaches. The ICC must begin to take seriously the investigation of the financial aspects of alleged atrocities. This will be crucial to prevent future crimes. The ICC must also seek to prosecute ‘pillage’ and expand the bounds of ‘other inhumane acts’.

Transnational corruption has in recent years been elevated to an international offence but in practical terms it is not considered serious enough in order for heads of state or cabinet members to be prosecuted in foreign jurisdictions. There is evidence to suggest that, in certain cases, corruption may take the form of a crime against humanity. This possibility extends significantly the jurisdictional ambit of national courts and empowers the International Criminal Court to consider a case. Moreover, the restorative component of such criminal prosecutions should aim at restoring, through civil mechanisms, the funds illegally appropriated to their rightful recipients, the defrauded local populations, under the principle of self-determination.

The feasibility of prosecuting Grand Corruption as an international crime is shaky. On a careful reading of the offences contained in the Rome Statute, the only crime which may, arguably, be interpreted to permit Grand Corruption to be viewed as an international crime is contained in Article 7, ‘Crimes against Humanity’. This Article reads as follows:

Article 7: Crimes against humanity

1. For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The Nuremburg Charter contained the first formal definition of a crime against humanity and defined it fairly narrowly as ‘murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds…’ As can be seen above, Article 7 of the Rome Statute expanded the limited scope of the Nuremberg definition, classifying crimes against humanity as an attack against a civilian population, which is widespread or systematic’, and setting out eleven possible underlying acts – any one of which could support a conviction.

Of particular relevance to Grand Corruption is the underlying act contained in Article 7(k), which includes ‘Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’.

Even if it were possible to amend the Rome Statute, it is uncertain that the ICC would be able to utilize 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 Gaddaffi. To date almost ten years since it came into existence, the ICC is yet to secure its first conviction, its investigations are far from first rate and its proceeding are expensive and interminable. Currently, the depth of discontent against the Court within Africa is immense. With all of these challenges, adding a new offence to the Court’s jurisdiction will stretch its already limited resources and threaten to totally overload it.

An amendment to UNCAC also seems very unlikely at this stage. The negotiation process to set up an implementation review mechanism for the Convention was marked by prolonged deadlock and the resulting compromise led to a far from desirable result. Combined with the stalled attempt to establish an international piracy tribunal, this indicates that there is currently insufficient appetite for an international tribunal on corruption.

Recommendations

GOPAC proposes four potential paths for prosecuting grand corruption:

1. the International Criminal Court (ICC) in The Hague;

2. endowing national courts with universal jurisdiction;

3. the creation of regional courts;

4. the creation of a new mechanism for providing justice

Although there is no specific mention of corruption in the Rome Statute, some have argued that a case could be made for grand corruption to be classified as ‘other inhumane act’ within the category of crimes against humanity in the Rome Statute. The Socio-Economic Rights and Accountability Project (SERAP) in Nigeria has gone a step further by petitioning the ICC and requesting the Court to investigate the corruption perpetrated by past governments as it amounts to a crime against humanity. Others are exploring how the war crime of ‘pillage’ can be used against companies whose theft of natural resources has sustained deadly conflict. However, no real international consensus has been reached on this issue.

To use your position and powers to examine and investigate whether the systemic/grand corruption in Nigeria amounts to a crime against humanity within the jurisdiction of the International Criminal Court, and to prevail on the Nigerian government to fulfill its obligations to effectively and fairly investigate and prosecute all allegations of grand corruption since 1985. Nigeria is a state party to the Rome Statute and deposited its instrument of ratification on 27 September 2001.’

To circumvent these doubts, there have been suggestions that the Rome Statute should be amended to include a crime of grand corruption, or alternatively that a separate tribunal similar to the ICC should be established to try such crimes. The latter may involve the adoption of a protocol to the United Nations Convention against Corruption (UNCAC). Neither option seems feasible at present. Due to the lack of political will, no amendment to the Rome statute will be possible soon. There is unlikely to be any consensus for this amendment so it would have to be adopted by a two-thirds majority vote in either a meeting of the Assembly of States Parties or a review conference called by the Assembly. In addition, if the amendment relates to any of the offences contained in the Statute, it would have to be expressly adopted and would only come into force one year after ratification. Negotiations to establish the elements for the crime of aggression were so protracted that they are unlikely to come into force any time before 2017 at the earliest. Likewise, no agreement was reached on a definition for terrorism, so it never made it into the Statute. Even if there is broad agreement on including grand corruption in the statute, defining the elements of such a crime would likely be an uphill and protracted battle and any others⁷.

Petty corruption
Small scale, bureaucratic or petty corruption is the everyday corruption that takes place at the implementation end of politics, where the public officials meet the public. Petty corruption is bribery in connection with the implementation of existing laws, rules and regulations, and thus different from “grand” or political corruption. Petty corruption refers to the modest sums of money usually involved, and has also been called “low level” and “street level” to name the kind of corruption that people can experience more or less daily, in their encounter with public administration and services like hospitals, schools, local licensing authorities, police, taxing authorities and so on.^{8 9}

However, this approach alone will not address the core problem. In line with the ICC’s principles of complementarity, the primary responsibility for prosecuting international crimes should always be domestic courts. International tribunals should only step up when no viable domestic options exist. Since most countries are often unwilling or unable to do so, the limited option of the ICC must be kept open. In addition, because of the international and regional dimension of corruption, there is a need to strengthen transnational accountability for grand corruption crimes. Regional courts such as the Economic Community of West African States (ECOWAS) Community Court may also be vested with greater powers to deal with grand corruption. They will help overcome obstacles of privileges and immunities, have better credibility than domestic courts and be more independent and fair in their proceedings.

Without all these efforts, many more Chilubas will get to keep their stupendous wardrobes.

Consequences of Grand Corruption: Undermining human rights, good governance and economic development

Without an exhaustive legal analysis at this point, it seems arguable that the systematic high-level theft of government revenue could, in many cases, result in ‘great suffering’ and ‘serious injury to mental or physical health’ (for example, famine directly linked to the diversion of funds or the failure to purchase food supplies due to corruption). Although each element of the definition is bound to be severely contested, the inclusion of the underlying act of Apartheid (Article 7(j))has opened the door for the acceptance of other policy-based underlying acts under sub-section (k), such as systemic corruption. In this regard, a Nigerian non-governmental organisation, the Socio-Economic Rights and Accountability Project (SERAP), petitioned the Prosecutor of the International Criminal Court (ICC) in 2009 as follows:

‘It appears that the ICC Prosecutor’s Office did not respond to this petition, but a careful reading of the full petition certainly appears to make out an arguable case. The SERAP petition may well serve as a useful basis for a test case in this regard. Despite the obvious potential legal and political hurdles, it does seem that there is sufficient justification to pursue prosecutions of Grand Corruption using Article 7. And this course of action may yet prove to be the most effective counter against Grand Corruption and impunity yet attempted – not only in Africa but worldwide.

Conclusions

It is in the better the opinion of this research that in as much as corruption doesn’t cause immediate mass killing, it does kill anyway (even if slowly) and it is widespread cause there is no country that doesn’t suffer from corruption. And as far as it being systematic:

Systemic corruption¹⁰

As opposed to exploiting occasional opportunities, endemic or systemic corruption is when corruption is an integrated and essential aspect of the economic, social and political system, when it is embedded in a wider situation that helps sustain it. Systemic corruption is not a special category of corrupt practice, but rather a situation in which the major institutions and processes of the state are routinely dominated and used by corrupt individuals and groups, and in which most people have no alternatives to dealing with corrupt officials. Examples might include contemporary Bangladesh, Nigeria, Kenya and Cameroon.

Bibliography

Abdul, Tejan-Cole, Don't Bank On Grand Corruption Becoming An International Crime .