In search of remedies for victims of grand corruption

25 October 2015, by Kolawole Olaniyan.

Corruption, especially grand corruption, is anathema to the effective enjoyment of human rights, but it is often considered an ‘ordinary and victim-less 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 to identifying victims such as causation, legal standing, and evidence-gathering.

What I have in mind as grand corruption is the deliberate, intentional mass stealing of public wealth and resources by senior state officials entrusted with its fair and honest management for the common good and achievement of human rights. This is whether carried out individually or collectively, but with the support, encouragement, or acquiescence of the state and combined with a refusal to genuinely, thoroughly and transparently investigate and/or prosecute the mass stealing and recover stolen assets.

Grand corruption fundamentally contrasts with even a minimal notion of the rule of law, and the ideal of government as a public trust. It is especially devastating to the rules of a law-based society, and leads to a loss of confidence by citizens. Grand corruption undermines the ability of states to carry out their good-faith human rights obligations and commitments, as it diverts critical resources needed to achieve the full enjoyment of human rights.

It’s not that those who characterize corruption as victimless completely disagree that it causes harm, 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 several reasons. 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 the impartial application of the rule of law and access to justice.

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. 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:

… has 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, undermining a government’s ability to provide basic services.

Although there are attempts to prosecute corrupt acts as crimes, criminal prosecutions of corrupt officials have not been very effective up until now. Similarly, the legal frameworks against corruption in several countries don’t 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 inevitable result of lack of accountability is for example the sporadic and lax prosecution and punishment of officials responsible for grand corruption, while, conversely, the imposition of severe sanctions for petty corruption, so as to give the impression of justice.

While criminal law in developed countries can provide some short-term enforcement benefits, human rights law establishes both significant accountability mechanisms and normative standards for implementing long-term, durable, sustainable, and broad legal and institutional reforms against corruption.

It is true that human rights law continues to face implementation and enforcement challenges across the globe, and there remain some differences of opinion in terms of its conceptual interpretation, scope or philosophical foundation. But to use these grounds as justifications to minimise the potential role for human rights law to combat corruption is to fail to recognise the significant improvements that have taken place in this field over the years, and the law’s remarkable achievements.

Human rights law on its own may not provide the whole solution to the corruption problem. Nonetheless, it can ensure a measure of justice, fairness and effective remedy to victims of corruption and can serve as a strong deterrent, and incentive for action.

The UNCAC Conference of States Parties (COSP) should pay more attention to the effects of corruption on human rights. We need a protocol to the UNCAC to agree a universal definition of grand corruption in the form that recognizes it as a human rights issue, and a breach of national trust, and therefore grants victims the legal standing to seek effective remedies against states and corporations. The COSP can lead this process and make it a reality. It can also support the proposal being championed by Transparency International and others to establish a UN Special Rapporteur on Corruption and Human Rights.

About Kolawole Olaniyan

Kolawole Olaniyan is Legal Adviser at Amnesty International’s International Secretariat, London, and author of ‘Corruption and Human Rights Law in Africa.’