Building vibrant and tolerant democracies
(Read the full comment here or download it below) - By Abdul Tejan-Cole, Regional Director for Africa at the Open Society Foundations - In August 2009, former Zambian President Frederick Chiluba, who was derided in the local press as a ‘high-heel wearing, adulterous, dwarf thief’ after accounts of his more than one hundred pairs of custom-made Swiss shoes became public, was acquitted on six counts of theft by a public servant under the national penal code. Despite the best efforts of the Zambian Taskforce against Corruption, Ndola Magistrate Jones Chinyama concluded that the prosecution failed to prove beyond a reasonable doubt that Chiluba stole public funds amounting to US$500,000 and found him not guilty on all counts.
A few years earlier, based on largely similar facts, Chiluba was found liable in a civil case in the United Kingdom for stealing US$46 million from public accounts. He was lambasted by Justice Peter Smith for shamelessly defrauding his people and flaunting his wealth with an expensive wardrobe of ‘stupendous proportions’. But attempts to register and enforce the London High Court judgment against Chiluba in Zambia proved futile. Had Chiluba been charged with crimes against humanity, war crimes or any other crimes under the Rome Statute, the International Criminal Court (ICC) may have reached the conclusion under Article 17 of the Statute that the proceedings against him in Zambia were a sham and the Court may have been able to retry him.
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. 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 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.
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.
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’.
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.