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International Anti-Corruption Court will both deter and discombobulate the kleptocrats

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Paul Hoffman SC is a director of Accountability Now.

The levels of corruption in the world today are disturbingly high. But kleptocracy and kakistocracy do not flourish when strong institutions act effectively and accountably to curb their rampant injustice and abuse.

As South African voters ponder their options ahead of the national and provincial elections on 29 May 2024, it is timely to consider the bigger picture in a world in which good governance and sustainable development are increasingly rare.

Thirty years ago, South Africa set out to put in place open, accountable and responsive governance to ensure sound service delivery, respect for human rights and a better life for all, as promised in the Constitution. Voting for parties and independents who take these values seriously ought to be a given.

In September 2024, the United Nations plans a “Summit of the Future”. The intention is to forge a new pact for dealing with global governance challenges. The event is, according to the UN, “a once-in-a-generation opportunity to reinvigorate global action, recommit to fundamental principles, and further develop the frameworks of multilateralism so they are fit for the future”.

This article concerns one of the UN Sustainable Development Goals, UNSDG 16, which is officially described as having as its specific goals to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”.

These noble sentiments are adumbrated by the UN with the following observations:

Compassion and a strong moral compass is essential to every democratic society. Yet, persecution, injustice and abuse still runs rampant and is tearing at the very fabric of civilisation. We must ensure that we have strong institutions, global standards of justice, and a commitment to peace everywhere.”

The reference to rampant “injustice and abuse” is presumably polite UN language for the forms of oppression that arise from corruption through the abuse of public office for private gain. Plainly, the diversion of public funds, intended for the benefit of society in general, to private pockets of the corrupt and their cronies, is oppressive and damaging to the fabric of civilisation.

Kleptocracy and kakistocracy do not flourish when strong institutions act effectively and accountably to curb the rampant “injustice and abuse” that UNSDG 16 is intended to address. The levels of corruption in the world today are disturbingly high. Lord Peter Hain, delivering a lecture at the University of Cape Town in January 2024, observed:

“Corruption has reached alarming proportions, with money laundering alone causing global annual losses of $1.6-trillion. More than $7-trillion of private wealth was being held in secretive offshore accounts – the equivalent of 10% of global gross domestic product (GDP).

“Money stolen through corruption every year is enough to feed the world’s hungry 80 times over, yet impunity for grand corruption was thriving in many countries because kleptocrats controlled the administration of justice.”

How then are effectiveness and accountability to be achieved in the global struggle to rid modern society of the scourge of grand corruption?

These questions arose for judicial consideration in South Africa after the government decided to close down the effective and efficient anti-corruption entity known as the Scorpions and to replace its investigative functions with a police unit known as the Hawks. This stratagem was regarded as unconstitutional. Arguably it was one of the first steps in the Jacob Zuma-inspired State Capture project.

An application impugning the stratagem was launched by Johannesburg businessman Hugh “Bob” Glenister. The matter ended up with a successful appeal to the Constitutional Court. The approach of that court to the insidious parameters of grand corruption is summed up in its own words as:

“There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project.

“It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”

When the UN deliberates upon recommitting to fundamental principles, it would do well to have regard to the court’s reference to ethos, institutions and the foundational values set out in Chapter One of the South African Constitution. The separation of powers and the use of checks and balances on the exercise of power are also salutary.

In South Africa, a fourth leg of governance via the Chapter 9 Institutions of the Constitution is also a development that both supports and helps to bed down the notions of constitutional democracy under the rule of law. Were it not for the Office of the Public Protector there would probably not have been a Zondo Commission of Inquiry into State Capture.

In its judgment, the court laid down in binding terms the criteria by which anti-corruption entities ought to be measured. Chief among these criteria are that trained specialists must be employed to counter the corrupt.

Both operationally and structurally they must work in an independent institutional environment without executive influence or interference. Their resources must be adequate to their needs and guaranteed in a way that prevents kleptocrats (or others) from depriving them of oxygen. Those engaged in anti-corruption work must enjoy secure tenure of office, the form of tenure that the Scorpions lacked.

Read more in Daily Maverick: Bad news for the looters as bills establishing Anti-Corruption Commission are tabled

These criteria are drawn from the extensive research of the Organisation for Economic Cooperation and Development and now bear the imprimatur of South Africa’s highest court. They are of universal applicability. The Glenister precedent is of use to any public interest litigant dissatisfied with the state of anti-corruption efforts due to lack of political will to implement the rules laid down by South Africa’s apex court in binding terms.

What then of those countries in which the kleptocrats hold sway and control the administration of justice, and sometimes even the courts?

This issue is the subject of an international campaign for the establishment of an International Anti-Corruption Court or IACC. The campaign is being driven by Integrity Initiatives International and is gathering support from an ever-increasing number of countries, leaders and institutions.

By the end of 2024 it is planned that a draft international treaty setting the parameters of the activities of the IACC will be in public circulation. While it may be too much to expect support from those countries in which kleptocrats rule, it is well known that they “export” their loot to safe havens around the world, safe havens that may well be minded to join the IACC.

The proposed civil chamber of the IACC will then have the power to freeze and seize the loot that is within the jurisdiction of the member country. This will both deter and discombobulate the kleptocrats.

Those countries emerging from kleptocracy to democracy will also be able to rely on the IACC, which will operate on the basis of the doctrine of complementarity to lend support to fledgling national-level prosecutors – those who may not yet be ready to face the legal firepower that kleptocrats invariably engage, using their ill-gotten gains to pay lawyers top dollar to defend them. Moldova is an example of a country in which this solution is already being applied, albeit informally, in the absence of an IACC.

The interim “Peoples Pact for the Future” (which will be finalised in the coming months after a conference in May 2024 to be held in Nairobi) currently expresses the wish of civil society organisations to see action, rather than talk, as follows:

“An International Anti-Corruption Court would prosecute high-level officials and their co-conspirators in corruption cases where national jurisdictions are unable or unwilling to prosecute the offences that they are already required to criminalise as members of the UN Convention Against Corruption.

“It should be an international institution of last resort operating on the principle of complementarity. Accordingly, its jurisdiction would aid governments unable to prosecute kleptocrats and thereby help deter others. The Court should also help to recover and repatriate stolen assets and be a resource to national level authorities that seek to enhance their capacity to enforce anti-corruption law at the domestic level.”

Good governance is fundamentally dependent on the active presence of vigilant and well-equipped specialists who deal only with serious corruption and organised crime. Whether these specialists are stationed on the staff of the IACC or at national level, they are a precious resource in the battle for justice and accountability.

Without them the kleptocrats and their fellow travellers in business and some professions are free to behave corruptly to the detriment of society as a whole and, in particular, to the detriment of the weak and vulnerable, the poor and the aged.

The political will to address grand corruption creatively and responsively is all too often lacking, especially in those jurisdictions in which kleptocrats hold sway.

When the Summit of the Future is convened by the UN in September 2024, the delegates will do well to study the wishes expressed by civil society in the finalised Peoples’ Pact, the activities of Integrity Initiatives International and the judgment in the Glenister litigation that is summarised above.

Under the Swinging Arch is a compilation of essays written by the lawyers involved in the Glenister cases. It is an instructive resource for policymakers in constitutional democracies which have a justiciable Bill of Rights and a desire to clean up their act on the anti-corruption front. The fundamental issue is all too often a lack of political will to regard corruption as seriously detrimental to justice and accountability.

To reach the happy state in which the goals of UNSDG 16 are attained, it will also be necessary for the UN to get those governments which have signed up for the UN Convention Against Corruption (UNCAC) to audit their compliance with the undertakings solemnly given in that near-universal treaty. In its seventh chapter the following appears:

“A Conference of the States Parties to the Convention is hereby established to improve the capacity of and cooperation between States Parties to achieve the objectives set forth in this Convention and to promote and review its implementation.”

This process of promotion and review is supposed to establish and maintain independent anti-corruption entities that are effective and efficient; all too often this is not the case. There is no shortage of laws against corruption, but there is a great deficit in their proper enforcement due to the failure of UN members to honour their UNCAC obligations properly and dutifully.

An IACC, working along the lines of the Rome Statute, could help turn the tide of kleptocracy in the world. The political will at national level to take UNCAC obligations more seriously, and diligently work on the establishment of effective and efficient anti-corruption machinery of state of the kind approved in the Glenister case, will go a long way towards achieving the objectives of the UNSDGs, and in particular UNSDG 16.

Without strong institutions, good governance remains a chimera. The time for talking is over; implementation and accountability ought to be the order of the day. DM

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  • Murray Burt says:

    What a good story! Cant wait to see this start getting implemented, even though these things take time to get off the ground , at last the noose starts to tighten.

  • Murray Burt says:

    What a good story! Cant wait to see this start getting implemented, even though these things take time to get off the ground , at last the noose starts to tighten.

    • Kenneth FAKUDE says:

      I guess the same countries showing the middle finger to the ICJ and UN bodies will be above this law.
      There is a big weapons racket fermenting wars, a favorable party is chosen as soon as the war is started and supported with billions on condition the money is used to buy weapons from the supporting country.
      To africa and the middle east international law has proven to have died more than 75 years ago, its only being proven now.

      • Kanu Sukha says:

        You forgot to mention the middle finger shown to the ICC by a few ‘above the law’ countries/states. The desperate redefinition of and conflation of anti-semitism and anti-zionism in one corner of the globe, is a perfect example of not what Hoffman describes as ‘lack of political will’ … but the misdirection or redirection of ‘political will’ to serve the interests of world hegemony. This attitude is particularly prevalent in ‘western’ states (accounting for 10% of global population) … the ‘original’ imperialists and colonialists.

    • Steve Davidson says:

      Oh absolutely. And do you know which unexpected country I’d expect to be against the idea? Fair enough, SA might be there, but frankly, it’ll be Hain’s own adopted one, the UK. Those right wing Tories particularly, were the ones that pushed for a Hard (and really stupid) Brexit because, apparently, the EU Tax Commissioner was about to start investigating the UK’s offshore tax havens and they didn’t fancy it! And it had to be ‘hard’ because if they’d stayed in the single market (the more useful answer for the common folks) the commissioner would have still been able to go after them. So, as you imply, the IACC takes off, it could be very very interesting. I’d love to see those crooked bliksems’ pips squeak, for the damage they’ve caused (but obviously not to themselves).

      • Kanu Sukha says:

        Just recently I read about how ‘slavery’ took a long time to ‘abolish’ … but the inventive British (once ‘great’ but now stolen by US!) in their ‘smartness’ … replaced it with indentured labour (which did not carry the same stigma as slavery). King Sunak has not heard about it yet … I believe. Because that is what the Palestinians are for the Zionists . Not unlike our ‘homelands’ for the apartheid regime. It took a long time to be rid of ‘indenture’ ! There exists ‘variations’ of that approach in many parts of the globe today.

  • Indeed Jhb says:

    Pie in the sky. As SA has shown you can step into the fold or out when it does not suit – think of the ”arrest on sight” President of a certain country that could visit SA and not be arrested and then unseen and mysteriously left the country
    I am glad ”Lord” Hain is concerned about corruption, abuse and bad governance – pity a bit late. Suppose it is wisdom with age. Should recover from him some of our corruption losses considering his ”assistance” in giving us the current government.

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