9 May 2015, by Kolawole Olaniyan.
Today the level of confidence in Nigeria is remarkably high, and president-elect General Muhammadu Buhari has been described by many as embodying ‘the promise of change’. Hardly surprising given that one of the reasons he became president-elect is because of his apparent zero-tolerance approach to corruption. Nigerians have indeed continued to offer increasingly passionate support to the president-elect, and have been very busy setting agenda for the incoming government on how it can bring about real change. Expectedly, high on the list is the need to prosecute and punish corrupt high-ranking government officials.
But one useful complementary legal remedy against corruption has been largely ignored: the use of human rights law to empower the citizens and provide effective remedies for victims of corruption.
Corruption is anathema to effective enjoyment of human rights but it is often considered an ‘ordinary and victimless crime.’ It isn’t.
Yet the myth that corruption is a victimless crime has prevailed for many years, in part because of the narrowed conception of corruption, and the perceived legal and practical challenges, such as causation, legal standing, and evidence-gathering. However, it is not that those who characterise corruption as victimless completely disagree that it causes harms, especially to the economically and socially vulnerable (that is, any individual or determinate class of persons, who by reason of poverty, or disability or socially or economically disadvantaged and vulnerable position, suffer most the immediate effects of violations of human rights caused by corruption).
On the contrary, the argument often put forward is that since no one victim suffers more harm than others, and that there may be no direct victim, it is probably pointless to labour in search of ‘invisible victims’. This line of reasoning would appear weak and difficult to sustain, for the following reasons. First, apart from causing both direct and indirect economic and other harms to citizens and the public in the form of the loss of the common wealth and public revenue, corruption also causes non-monetary loss in the form of widespread and consistent denial of impartial application of the rule of law.
While it may be difficult to quantify the harms that corruption causes, this doesn’t make the harms less real, less destructive, or less corrosive. In fact, the manifestations and indicators of these harms can be easily recognised in the form of poverty and the systematic, gross human rights violations that millions of economically and socially vulnerable Nigerians have suffered for many years.
As former UN Secretary General Kofi Annan stated during the 2003 adoption by the General Assembly of the United Nations Convention against Corruption (UNCAC) corruption: ‘[H]as a wide range of corrosive effects on societies; undermines democracy and the rule of law; leads to violations of human rights; erodes the quality of life…hurts the poor disproportionately by diverting funds intended for development, and undermines a state’s ability to provide basic services.’
While it is true that the causes of poverty and underdevelopment in Nigeria are complex (and no single factor causes poverty), the longstanding problem of corruption is unquestionably one explanation for deficits in the rule of law, a drain on public treasury, and exacerbation of existing vulnerabilities and inequalities.
The Buhari government therefore can’t afford to treat grand corruption as an isolated incident if he doesn’t want to be accused in four years’ time of leaving both communities and individual victims of corruption powerless and without effective remedies.
At the moment, the legal frameworks against corruption in Nigeria do not reflect elements of the accountability of the government for the human rights violations faced by victims of grand corruption. The victims are largely neutralised (and virtually anonymous) in the criminal process, with no access to human rights remedies.
The overriding priority for the Buhari government starting on 29 May is, therefore, first, to provide a strong leadership by proposing and facilitating the passage of a bill by the National Assembly that would characterise grand corruption as a breach of national trust and grant the citizens enforceable human right to ensure the eradication of corruption and abuse of power and, second, to establish a Trust Fund for Victims of Corruption in the country.
With respect to the first point, the Buhari government can take a clue from the abandoned 1995 draft Constitution of Nigeria (proposed, ironically, while Abacha, regarded as one of the most corrupt leaders of Nigeria, was in power), which explicitly grants legal standing to the citizens to sue for violations of their human rights occasioned by corruption. The draft constitution provided in section 35 that ‘Every person shall have the right to: (a) ensure the eradication of corrupt practices, and abuse of power; (b) protect and preserve public property; (c) fight against misappropriation and squandering of public funds.’
The proposed legislation can also contain provision to characterise the failure of national and foreign banks to prevent stolen funds from being cached in their banks and to aid in their recapture as complicity, after the fact, and itself, a delict.
Secondly, the Buhari government should establish a Trust Fund for Victims of Corruption, drawn mostly from recovered stolen wealth and other interest that might be generated from this. Given the limited resources available, fines should be imposed on corrupt officials, and such fines should be set aside as endowment for the trust funds. The proposed trust funds can also be augmented by support from international development agencies and other relevant institutions and the private sector.
Part of the funds should be used to establish victims’ assistance programmes to ensure the victims’ perspective is fully integrated into the fight against corruption.
The notion of trust funds for victims of human rights violations is a well-established mechanism in international law and relations, such as under Article 75 of the Rome Statute of the International Criminal Court (which creates a fund for the benefit of victims of international crimes and their families, the assets of which may originate from money or property collected through fines or forfeiture imposed by the ICC on the individual perpetrator).
The idea of a trust fund is also frequently adopted in mass claims programmes (such as the Iran-United States Claims Tribunal of 1981) to provide ‘effective remedies for numerous individuals who suffered losses, damage or injuries as a result of an armed conflict or a similar event causing widespread damage’. The existence of armed conflict is not a requirement for mass claims: similar types of claims would arise from environmental disasters, causing widespread damage or injury, or from systematic human rights violations in peacetime caused by corruption.
The goal is presumably to achieve ‘practical justice: that is, a justice that would be swift and efficient, yet not rough’. Mass claims cases are clearly similar in kind to the adverse effects of corruption on human rights. Therefore, the Buhari government should replicate the mass claims principles, and work towards establishing trust funds (as an essential element of remedial justice) for victims of corruption.
By establishing such trust funds, the Buhari government will also be signalling that victims will no longer be marginalised in the fight against corruption.
Indeed, the UN Basic Principles of Justice for Victims of Crime and Abuse of Power provides some guarantees for victims (including family members of direct victims), such as those that suffer ‘substantial impairment of their fundamental rights’ through acts or omissions, including abuse of power. Corruption is implied here as the ultimate abuse of power. Victims of human rights violations would be entitled to effective remedies regardless of whether they bring their claims against the state in an individual or collective capacity.
On the one hand, the institutions of governance and the society as a whole are the victims. On the other hand, corruption disproportionately inflicts grave harms on the economically and socially vulnerable, who, in addition to violations of their specific human rights, are also denied access to effective operation of the rule of law and institutions of government.
In his ‘Covenant with Nigerians’ the president-elect stated ‘I believe if Nigeria does not kill corruption, corruption will kill Nigeria.’ He is spot-on. But if any significant and sustainable success is to be recorded in the fight against corruption, the Buhari government will need to avoid more of the same. Nigerians want to see General Buhari taking creative, radical, evolutionary, and bold initiatives to fight corruption and thereby working to create a state that serves its people’s interests.
Make no mistake, the road to ‘change’ will be filled with ‘potholes and blind curves.’ But four years from now, Nigeria can be ‘a new country’ where corruption is no longer considered ‘normal’ if the Buhari government can show strong leadership, political will, and the courage to do something dramatically different.
As John Maynard Keynes said in his famous speech in Manchester in 1926: ‘The political problem of mankind is to combine three things: economic efficiency, social justice and individual liberty.’ Buhari’s primary task in the next four years is to produce a country that will come closest to passing Keynes’s triple test.
Dr. Kolawole Olaniyan is the author of ‘Corruption and Human Rights Law in Africa’.