Considering corruption, harnessing human rights
There is a new text on the prevention of corruption and the protection of human rights conversation in Africa. Authored by Dr. Kolawole Olaniyan, Corruption and Human Rights Law in Africa represents a scholarship that responds to the urgent governance need in Africa. Dr. Kolawole Olaniyan constructs a narrative that is both profound and commendable.
It is important to begin with the understanding that the developing struggle against corruption follows the path laid by the human rights movement. Dr. Olaniyan argues convincingly, in this work, that anticorruption efforts would be best progressed by relying not only on the shoulders of national criminal law systems, but also thorough recognition by and integration into global and regional human rights law, norms and practice.
The 368-paged book painstakingly considers the many faceted perspectives of this proposition from a review of existing treatment of grand corruption schemes in domestic criminal law settings to a look at the wide-ranging scope of human rights protected by the African Charter on Human and Peoples' Rights and other international treaties impacted or violated by corruption, to the theoretical bases for applying the normative human rights framework to a problem which has proven too vast to handle through criminal law alone, results in a reference point for lawyers, judges, elected leaders and civil society alike to take the movement forward.
Dr. Olaniyan proffers several next steps, which will undoubtedly provoke thoughtful debate in the years to come.
Contesting the causes of corruption
The conceptualisation is that of a two-way street: anticorruption movement needs certain strengths the human rights law framework has established, and human rights, to be realised, must root out underlying causes of corruption. In answering the question, why look to human rights law to address grand corruption, Dr. Olaniyan highlights several key points from moral to legalistic. In the early chapters of the book, he discusses the potential of depoliticising and internationalising the problem, and attaching an appropriate level of moral imperative to it. It's not just an abstract, victimless crime or tool for political revenge. It's a central cause of human suffering and poverty, and real people are real victims, every day. He laments the fact that the victims are largely neutralised (and virtually anonymous) in the criminal process, with no access to human rights remedies.
Education, health, development, and basic freedoms to information, association and life, fair trials and private property rights all languish in the hands of a governance structure laced with corruption. Just as in human rights discourse, the socially and economically vulnerable suffer the most. But where can we, the people, the "victims of corruption" go for redress? Who will hear our cries for help when we know all too well that our treasuries are being pilfered while public services - from physical infrastructure to fair criminal justice systems and humane, equal treatment of our populaces - are routinely denied?
Dr. Olaniyan discusses three key developments in human rights law that start to unlock the blockages currently encountered in attempts to seek adequate redress for corruption: limitations on the concept of state sovereignty, expanded notions of standing of complainants, and rejection of strict rules of causation which dominate national criminal legal systems.
As long as instances of grand corruption continue to be treated solely as particular criminal acts of individuals, various immunities will protect wrongdoers from sanctions and the argument of state sovereignty will politicise instantly international efforts at accountability. The human rights normative framework, however, has succeeded in limiting otherwise unchecked state power by imposing the duties to protect, respect and fulfil human rights, in effect, realising a concept of public trust. The state is entrusted to operate for the benefit and security of the people, not to take what it will from the people's national coffers.
The power of protection
The human rights framework concludes that law protects people, not states; the power of the state is not absolute and cannot be used as a veil for abuse by its agents, but rather is responsible for their acts. The application of this framework to grand corruption is clear, as is Dr. Olaniyan's clear advice that sticking with a strict adherence to traditional norms of state and sovereign immunity of national criminal law systems will always keep us from touching the lifeblood of corruption. Looking instead to other frameworks, he spends considerable time with Article 21 of the African Charter on Human and Peoples' Rights, which evinces a clear intent to protect the peoples' exclusive right to "freely dispose of their wealth and natural resources." While he discusses many articles of the Charter which are violated by acts of corruption, Article 21 stands out as uniquely positioned to address massive theft of public assets and money-laundering plaguing much of the continent.
But how can people access the protection of Article 21 and the spectrum of human rights provisions, especially when "spoliation" or wasting away of what naturally belongs to them is indigenous?
Dr. Olaniyan looks to international human rights law notions of standing and causation. In contrast to restrictive domestic requirements of proving a specific and direct harm, by its very nature, the international human rights framework relies on universality and inviolability of rights, laying the basis for any citizen to challenge a breach. He proffers that we might go one step further to develop a type of derivative proceeding, akin to corporate shareholder actions, that members of the public could bring in recovering stolen assets.
In place of struggling through ill-fitting causation standards in criminal law, Dr. Olaniyan suggests "the obligations of the state rather than the corrupt acts of its high-ranking officials" are what should be considered to establish responsibility. That, we could look to a state's acts, or failures to act, in carrying out obligations and commitments under international treaties on corruption and human rights to determine a nexus of breach of diligence and vigilance, corrupt acts of high-ranking officials, and alleged human rights violations. This general form of showing causation is more fitting, considering especially the secrecy within which corruption lives.
Civil society's experience in initiating and supporting anticorruption proceedings, however, elucidate other complications in getting to accountability: exhaustion of remedies prior to an approach to a human rights venue is a serious obstacle for many, and the primary reason the Equatorial Guinea case brought to the African Commission by the Open Society Justice Initiative, mentioned in this book, was eventually not admitted. While it is encouraging to see the quotes from Commissioners that they would consider a case that alleged corruption in the violation of rights protected by the Charter, the denial of a case which alleged just that on exhaustion grounds, when there is considerable evidence of the impaired, partial judiciary in the country, torture and other forms of retribution against those who challenge the state, and resulting unavailability of true domestic recourse, shows we have much work to do in explaining the degree to which corruption impairs the widest spectrum of human rights.
Although relating corruption to human rights will enable governments and spirited public citizens to use human rights mechanisms to address the problem of corruption, making corruption a human rights issue will not necessarily on its own ensure that it is eliminated. The author acknowledges the limitation of this approach and rightly opines that human rights approach to corruption should only be a part of multi-tiered engagement that should incorporate all other mechanisms for fighting corruption. He outlines a multiplicity of strategies for addressing corruption in the region. It is clear, though, that a one-size-fits-all response to corruption cannot satisfactorily or effectively address the problem, especially given its complexities, multidisciplinary and contemporary nature (and the fact that its causes vary widely), and its varying but devastating effects on human rights in regions like Africa.
This scholarly treatise is quite accessible and should be a must-read for all judges, lawyers, students, academics and policy makers. Dr. Olaniyan provides a constructive and comprehensive contribution to an ongoing debate. For this we are indebted.
Executive Director of Open Society Initiative for West Africa and former head of Sierra Leone's Anti-Corruption Commission?