27 October 2015, by Dr Juanita Olaya.
After years of working in the field of governance and anti-corruption I am convinced that fighting corruption should not be a goal in itself, and is of little help if it doesn’t translate into better services or better life conditions for citizens – in other words, it should benefit the public good.
The damage done by corruption to the public good is real and tangible and should be repaired. This is not only a basic principle of law; it is also a way for societies to recognise the value of the public good and to act upon it. This is particularly pertinent in grand corruption cases, where funds are stolen directly from the public purse; often these are funds destined for health, education or other social services.
The good news is that there are judges, prosecutors, lawyers and activists doing this good work: seeking channels, ways and options to repair the damage caused by corruption and ensure compensation and redress for the public (corruption’s real victim).
To cite only a few examples, In Nigeria, the NGO SERAP has been pursuing public interest litigation before the Economic Community of West African States (ECOWAS) and the Nigerian courts to seek recognition of the impact corruption has on education, the environment and other public goods.
In Costa Rica prosecutors have made good use of the authority given to them by the law to claim compensation for the damages caused by corruption in cases involving high ranking officials.
At the 6th Conference of States Parties (COSP) in St Petersburg, the Costa Rican delegation and the UNCAC Coalition have joined efforts to host a side event on this topic. The event will take place on Thursday 5 November 2015, under the heading “Compensating the costs of corruption: The concept of social damage and other experiences and best practices in implementing UNCAC’s Article 35”. This event is welcome and timely, as it will facilitate an exchange of experiences among States Parties, raising some interesting questions and the opportunity to learn from each other.
As efforts in this field begin there are also challenges. An earlier entry to this blog by Kolawole Olaniyan gives a good overview of some of them: limited access to judicial mechanisms for victims, measurement dilemmas, evidence management, and the conception, use and correct implementation of compensation. I have researched those dilemmas and presented a paper to be included in an upcoming publication of the Open Society Justice Initiative, surveying the field of legal remedies for high-level corruption from the standpoint of the role of civil society. You will find the draft here and I would be happy and grateful to hear back from you with your experience, reactions and comments.
As we search for solutions to these challenges we need to take enabling steps. The UNCAC Coalition in its statement to the 6th COSP calls on States Parties “to take effective measures to address the consequences of corruption and ensure compensation for victims”. It also “welcomes the legal concept of social damage presented by the Government of Costa Rica during the 4th COSP”. Transparency International’s statement to the 6th COSP on grand corruption makes a sharp point when it recommends increased prosecution of grand corruption cases and at the same time for State Parties to: “Allow victims of grand corruption greater recourse to the courts, in both criminal and civil proceedings”. It also asks the “UNODC to prepare an in-depth study of implementation of UNCAC Article 35 and to provide more guidance on private prosecutions”.
We look forward to seeing positive steps in this regard.
About Dr Juanita Olaya
Dr Juanita Olaya is a Governance, Sustainability and Anti-Corruption expert, and Legal Adviser to UNCAC Coalition.