Nigeria, Colombia, Peru and Malaysia are pushing for the establishment of an International Anti-Corruption Court (IACC). It will make it possible to prosecute powerful corrupt political leaders who escape justice at home. But there are obstacles in the way, writes ROBERT EGBE.
The figure sounds too mind-boggling to be true, but it probably is: $582 billion has been stolen from the Nigerian treasury by public officials since Independence on October 1, 1960.
A study by a London-based international policy institute, Chatham House, said $400 billion of the sum was taken between 1960 and 1999, while in just nine years – 2005 to 2014 – some $182 billion was lost through illicit financial outflows.
When the report, “Collective action on corruption in Nigeria, a social norm approach to connecting societies and institutions”, was published in May 2017, it raised concern, but caused no real outrage in the country.
Nigerians were already aware that public officials had kept the populace impoverished through grand corruption.
The evidence, mostly anecdotal, is everywhere — billionaire ex-Generals, politicians and their associates with often barely credible history of enterprise.
For instance, the late military dictator Gen. Sani Abacha, who ran Nigeria in the 1990s, deposited billions of dollars in banks in the West, no questions asked.
More than $1 billion has since been recovered and returned. But when Switzerland, one of the countries whose banks are historically notorious for helping kleptocrats hide their loot, returned $500 million of the Abacha money in 2005, most of it could not be accounted for.
“A substantial part of that money disappeared. That’s not to say that it was stolen, but it was lost in the accounting system of the Nigerian federal state,” Oliver Longchamp, a finance and tax expert of Swiss NGO Public Eye, which monitored the return, told SWI SwissInfo.chi
Recovering loot and keeping light-fingered officials from the public till is a constant battle, and the government has had some success. For instance, in March, the Economic and Financial Crimes Commission (EFCC) Acting Chairman, Ibrahim Magu, said the anti-graft agency had “revolutionised the process of assets tracing and recovery,” leading to the forfeitures of “billions in Naira and other foreign currency”.
Magu, who was responding to United States’ criticism that “there is a culture of impunity in the President Muhammadu Buhari government that allows officials to engage in corrupt practices with a sense of exemption from punishment,” said EFCC convictions were at their highest in history.
According to him, there were 943 convictions between 2015 and March 2019.
But challenges remain. No ex-president, even those in whose administrations monumental frauds occurred, has been prosecuted.
Also, only five governors, including Jolly Nyame and Joshua Dariye, have ever been convicted by the courts. A sixth, James Ibori, was convicted abroad. Several others are at various stages of trial – some lasting over 10 years – in Nigerian courts.
The government is also often accused of failing to act against high-profile members of the ruling All Progressives Congress (APC) party prosecutorial agencies often lose high profile corruption cases, the court system is usually slow and bogged down by delays, judges are overworked and are swamped with a deluge of cases. Meanwhile, some high-profile grand corruption suspects, like former Petroleum Minister Mrs Diezani Alison-Madueke, continue to live abroad without trial, despite her suspected involvement in an alleged $2.4 billion fraud, according to the EFCC.
Magu recently deplored the United Kingdom’s failure to try Mrs Alison-Madueke or extradite her and others to Nigeria. He has also lamented the difficulties in repatriating the loot stashed abroad.
According to him, the matter “has dragged on in the UK for more than four years with no visible result and no end in sight”.
Perhaps this, among others, is why Nigeria is backing other ways of prosecuting corruption suspects.
Nigeria’s position
President Muhammadu Buhari, during the 20th anniversary of the International Criminal Court (ICC) at the Hague, in July, last year, backed the growing push for the recognition of corruption as an international crime whose perpetrators can be prosecuted at the ICC or at another global organisation such as an International Anti-Corruption Court (IACC).
Buhari said: “(A) strong and effective international criminal court, can also act as a catalyst for other justice efforts, expanding the reach of accountability. This could include serious cases of corruption by state actors that severely compromise the development efforts of countries and throw citizens into greater poverty.”
The President is not alone. Colombia’s leadership has been at the forefront in urging the United Nations (UN) to create the IACC and to discuss doing so at its 2021 Special Session on Corruption.
The governments of Peru and Malaysia have also openly supported the establishment of an IACC, with the belief that it will help tackle grand corruption, especially by national leaders who are able to evade prosecution locally.
The case for an International Anti-Corruption Court
One of the leading non-governmental voices for the establishment of an IACC is a Senior United States District Judge and Chair of Integrity Initiatives International (III), Mark L. Wolf.
Wolf and other stakeholders renewed the call on September 24, during the United Nations General Assembly (UNGA) meeting in New York.
They spoke at a high-level side event with the theme, “The UNGASS 2021 on corruption: a path forward to enhance and strengthen the International Anti-Corruption Legal framework”.
Wolf argued that the time was ripe to create an IACC. He said: “The refugee crisis around the world has been generated by people fleeing failed corrupt states…indignation and grand corruption is destabilising many countries”, thus necessitating the need for the creation of such a special court, in order to “prosecute and punish corrupt leaders in countries that are unwilling or are unable to prosecute such leaders because of the clout they have over the system”.
According to Wolf, the IACC will operate on the principle of complementarity, “so that only leaders of countries that are unable to prosecute kleptocrats that rule them will be vulnerable to prosecution at the court”.
“It will also strengthen countries to enforce their own laws in order to keep their leaders out of the anti-corruption court,” he added.
‘Kleptocrats enjoy impunity in their own countries’
All countries have laws against corruption. Most countries are also signatories to the United Nations Convention Against Corruption (UNCAC). But Wolf feels this is not enough.
Last June 13, during the Global Expert Group Meeting on Corruption Involving Vast Quantities of Assets, Wolf gave a more detailed explanation of how the IACC would operate.
He said: “…Grand corruption is endemic in many countries and has devastating consequences. It does not flourish because of a lack of laws. 186 nations are parties to the United Nations Convention Against Corruption (UNCAC). They all have criminal laws prohibiting extortion, bribery and money laundering. They also have international obligations to enforce those laws against their nations’ leaders.
“However, kleptocrats enjoy impunity in their own countries because they control the administration of justice, including the courts.”
Wolf noted that in 2016, leaders from more than 40 countries met in London for an Anti-Corruption Summit. They endorsed a Global Declaration Against Corruption, committing each represented nation to the proposition that “the corrupt should be pursued and punished.”
He added: “Implicitly recognising that existing institutions and efforts have not been adequate, the participating governments committed themselves to “exploring innovative solutions” to combat corruption. An International Anti-Corruption Court (IACC) would be an invaluable innovation.”
Who would the IACC prosecutors be?
Wolf admits that the IACC is an evolving concept. Nevertheless, he does not envisage a shortage of lawyers to serve as prosecutors.
The IACC “would employ: expert investigators, such as those at the International Anti-Corruption Coordination Centre; excellent attorneys who have prosecuted cases in international tribunals; and international judges with the demonstrated ability to try and decide complex cases”’, he said.
IACC jurisdiction
The judge suggests that the IACC should have jurisdiction over corrupt leaders and those who conspire with them, “including those who pay them bribes or assist in laundering their illicit assets.
“The IACC would, therefore, provide for the prosecution of public officials who demand or accept bribes, which is not permitted under the United States Foreign Corrupt Practices Act or its counterparts in other countries.”
Are new criminal statutes required?
Not really, says Wolf. “The IACC would not necessarily require the enactment of any new criminal statutes. It could enforce each nation’s domestic anti-corruption laws that are required by the UNCAC. Alternatively, a uniform statute adopted by members of the IACC could be enacted.
Referencing his July 2018 article, “The world needs an International Anti-Corruption Court,” he said: “The IACC could be made part of the existing International Criminal Court (ICC). However, for principled and pragmatic reasons, III believes a separate court would be preferable.
“Like the ICC, the IACC would operate on the principle of complementarity. This means that only leaders of countries that are unwilling or unable to prosecute them for corruption would be subject to prosecution in the IACC.
“The principle of complementarity would give countries an incentive to strengthen their national institutions and efforts to combat corruption, which will remain of primary importance. For example, the threat of prosecution in the ICC prompted all parties to support strengthening the sanctions in the agreement to end Colombia’s lengthy civil war.”
Where would the IACC get funding?
What would be the IACC’s sources of funding? Would its operations not be too costly? Wolf disagrees.
He said: “The IACC would impose fines that could be used to pay for its operations, as fines partially fund the United States courts. Sentences of kleptocrats would also include orders of restitution to the countries they robbed. Therefore, prosecution could be a much more efficient and effective means of recovering assets than civil suits, which often last for decades and are frequently inconclusive.”
The case against IACC
Former Professor of International Law and Jurisprudence at the University of Lagos Prof Akin Oyebode is excited at the idea of an IACC, but does not think it will become a reality.
Oyebode feels a failure to agree on what constitutes corruption would be a stumbling block.
He said: “The idea of an anti-corruption court is novel and exciting but I am not too sure if it would get the requisite traction to attain effectiveness and focus on account of the lack of consensus regarding corruption.
“While to the capital exporting countries corruption constitutes the necessary ingredient for ensuring adequate returns on investment, those at the receiving end see corruption as unjust enrichment or unearned income extracted from their parlous economies.
“The efforts towards creating an international anti-corruption court appear laudable might be considered pyrrhic and unnecessary more so as there is in existence the 2003 UN Convention against Corruption and the International Court of Justice and other fora where grievances can be ventilated.”
One of the few Africans who have first-hand experience of the challenges surrounding the establishment and operations of an IACC is Charles Adeogun-Phillips.
Adeogun-Phillips, an international lawyer and former genocide and war crimes prosecutor for the International Criminal Court, spotted the problem with the proposed IACC immediately.
‘Corruption not recognised as a violation of international law’
Adeogun-Phillips believes the first problem is that corruption is not yet considered a violation of international law.
“The only reason why genocide, crimes against humanity and war crimes are the subject of prosecution before the International (Criminal) Court is because those crimes have been codified under international law. So, that is actually the starting point.
“You cannot have any sort of international adjudication system for a crime that is not considered an international crime.
“One of the uniqueness of the War Crimes Tribunal at the ICC or the ad hoc tribunals that came before was that it was the first time that the scope of international law was extended from a law that governs the relationship between countries to one that now covers individuals.
“Before 1995 when the first War Crimes Tribunal was created at The Hague for Yugoslavia and Rwanda, international law had never extended to individuals. So, these tribunals were the ones that extended scope of international law to cover violations of international criminal law.
“Basically, those crimes were considered by the international community as international crime under the genocide convention and other conventions.
“So, first of all the starting point before you even start talking about an international anti-corruption tribunal or Court is that corruption itself has to be codified and recognised as an international crime and a violation of international law.
“Then the courts can be established internationally or member states of the UN can now domesticate corruption as an international crime under their own domestic statues.
“So, once you’ve accepted that corruption is an international crime, there are two ways you can seek sanctions and enforcement following violations of that crime: it’s either you prosecute at an international fora or in an international court or member states that have ascribed to that convention could seek to domesticate that convention domestically and it becomes part of their domestic laws so then they can prosecute corruption as an international crime.
“So that’s really what the challenge is going to be. The challenge would be getting the international community to recognise corruption as an international crime or a violation of international criminal law.”
Why IACC is unnecessary
In Adeogun-Phillips’ view, the IACC may not be unnecessary.
“Why do you need to set up an institution like an International Anti-corruption Court when there’s already an ICC?” he asks.
“Once corruption has been recognised as a violation of international law what then needs to happen is that the Rome statute of the International Criminal Court has to be extended to cover and recognise corruption as an international crime.
“That’s all that needs to happen, you don’t need to set up a separate chamber for it, they just need to extend the subject matter jurisdiction of the ICC to recognise that additional crime as a violation of international law and then people will be brought before the court. Since the crime has been recognised they are now able to prosecute a violation of it.
“For now, the court only recognises genocide, crimes against humanity, war crimes and most recently they’ve added the crime of aggression.
“So, the assembly of state parties (at the UN) would now have to recognise corruption in its various forms as an international crime.”
The International Law Commission’s role
Adeogun-Phillips sees a role for the International Law Commission (ILC).
He notes that if the UN General Assembly passes a resolution that corruption can be recognised as a violation of international law “it will then refer that matter to the International Law Commission which will now codify it. Once the international law commission has been able to codify and define it then it can be recognised as a violation of international law.”
What is corruption?
But he believes that’s easier said than done, because, like Oyebode observed, agreeing on a definition for corruption might be problematic.
Adeogun-Phillips said: “Corruption is such a wide term that for it to be codified effectively it has to be defined, it has to be analysed; there are many variants of it.
“Will there be subsidiary offences like complicity to commit corruption? Will attempt to commit corruption become an offence? Will conspiracy to commit corruption become an offence? They have to qualify the various elements of the crime and that can only be done by the International Law Commission.
“So, it’s a lot of work and not as easy as people make it out to be.”
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