Opinion: How To Tame The Monster Called Corruption

Posted by African Examiner Articles/Opinion Thursday, August 14th, 2014

By Eze Anaba

Besides wars, diseases and violent militant groups, nothing has threatened law based states in recent times more than corruption.

It is often stated that one of the ways a functioning democracy is judged is how corruption is treated. That is why the founders of democracy defined good governance – as a government that is transparent, participatory and based on the rule of law.

Yet, corruption is especially difficult problem in poor states like Nigeria endowed with natural resources highly valued by people in wealthier states.

We are told by the pan African institution, the African Union that corruption across African states and capital flights to developed economies run into billions of dollars every year. Senior government officials are responsible for the larger share of that amount.

A timely example of the evil of corruption is poverty, inequality, insecurity and under-development in many African states. Everyone is a victim when some officials appropriate the commonwealth for their own personal benefit. The biggest of the problems is the chronic under-enforcement of anticorruption laws in many countries.

Take Nigeria as an example, the issue of corruption has become a recurring theme in discussions on the reason behind the country continuously lagging behind in the development index and its front seat on the corrupt countries scoreboard. The reason Nigeria is so poorly rated in the anti-corruption index is because successive years of military rule and the civilian administration that succeeded it have not been able to tackle the problem.

Rather every attempt that has been made to confront the issue has turned out to be a media stunt. Impunity remains the norm. While the masses have borne the effects of these corrupt leaders, there has not been any effective mechanism to check corrupt practices in government. It is no longer secret that while corrupt government officials have gotten more powerful, the criminal justice system that is meant to check them has progressively been weakened through a plethora of reasons ranging from incompetent judicial staff through starving the judiciary of funding.

Unless and until these problems are fully addressed and corruption effectively combated, Africa’s natural wealth and resources will continue to be a scant benefit to most people.

All hopes are however not lost as Dr Kolawole Olaniyan’s new book on ‘Corruption and Human Rights Law in Africa’ responds exactly to these concerns. I have had a chance to read the book, which was recently released.

Dr Olaniyan works as Legal Adviser with Amnesty International in London. In his book scheduled to be launched in Lagos on Monday 18 August (and with no other eminent legal personality than the Chief Justice of Nigeria, Justice Mariam Mukhtar chairing), he proposes a theoretical, legal and policy frameworks to effectively reform the traditional criminal law instrument against corruption so that corruption can be deterred and critical institutions of government improved.

Almost all of his suggestions entail the use of human rights law, in particular, the African Charter on Human and Peoples’ Rights (which African states except South Sudan have ratified) to complement a criminal law approach to the problem. He eloquently tells us the advantages of the former over the latter.

Dr Olaniyan said that, “corruption unquestionably violates Article 21 of the African Charter, as well as other substantive human and peoples’ rights in the charter. Not only is it the case that every dollar lost from corruption is one less than can be spent constructively, but also that the loss is often offset by government borrowing. These loans or international aid received from abroad may be considered part of the ‘national cake’ to be shared among high-ranking state officials, or, in plain language, stolen or mismanaged.

He also argued that, “Human and peoples’ rights are seriously compromised because corruption undermines the integrity and impartiality of a government, the important values for the effective and efficient functioning of any state, and the enforcement of the rule of law and human rights. Clearly the public trust, confidence, and support on which every civilised government depends upon to discharge its duties and which is necessary for the effectiveness and survival of governments is lost without integrity and impartiality.”

Dr Olaniyan’s thesis is motivated by the twin observations (A) that large scale corruption is incredibly harmful because according to him, it “fundamentally contrasts with even a minimal notion of the rule of law, and the ideal of government as a public trust. It is especially devastating to the rules of a law-based society, and leads to a loss of confidence by citizens.” As Dr Olaniyan correctly asserted, “the staggering amount of public funds involved, and the fact that much of the stolen funds are deposited in developed economies (often with complicated and secretive banking systems that tend to inhibit recovery of stolen assets).” (B) that although corruption is “as old as humanity,” large scale corruption in many parts of Africa has created a culture of impunity in which the corrupt need not fear punishment.

Leaning on his rich expertise of the African human rights instruments Dr. Olaniyan said that corruption is “a human rights violation insofar as it interferes with the rights of the people to use their natural wealth and resources,” and therefore “increases poverty and economic development.” But he also powerfully argued that corruption leads to multitude of human rights violations.

In what seems to be a ground-breaking proposition, Dr Olaniyan states that corruption should be seen as a violation of the rights of the individual as against being seen as an offence against the state the way corruption is currently seen through the eyes of criminal law.

One of the most interesting aspects of the book is the idea of imposing a “public interest duty” on financial institutions and banks that accept and keep stolen funds from Africa. Dr Olaniyan said that, “in relation to stolen public funds at least, this duty of due diligence would at the minimum demand complete fidelity to the public trust. If this is so, victims of corruption and public interest groups can rely on human rights law to ensure compliance with the duties of due diligence and Know Your Customer rules, thereby enhancing the effectiveness of the rules in practice. This public trust function would be undermined, for example, if financial institutions were to unreasonably withhold information on transactions concerning Politically Exposed Persons from the public upon request.”

I am very much in agreement with him about the insufficiency of the traditional criminal law instrument against corruption particularly in several countries in Africa beset by the culture of impunity, and the utility of human rights law to act as a complementary tool to achieve justice for victims of corruption.

Dr Olaniyan’s seminal book is probably the most detailed elaboration of the relationship between corruption and human rights law, at least in Africa. And given the threat that corruption generally poses to developing countries today, Dr Olaniyan’s proposal is something to be taken seriously.

In Nigeria corruption has affected leadership at every level. It has made life, to use Thomas Hobbes’ popular quotation, “solitary, poor, nasty, brutish and short”.

While Dr Olaniyan’s proposal may not be the only way to make headway against a culture of official corruption, it is certainly a major and revolutionary one. Nigeria and indeed governments across Africa would do well to give Dr Olaniyan’s idea a go. And civil society groups, senior lawyers and other concerned African citizens and their partners have a responsibility to make this happen.

Eze Anaba is Deputy Editor, Vanguard Newspaper, Nigeria