Vienna, 30 May 2013, by Adetokunbo Mumuni.
Mr. Chairman, distinguished delegates,
My name is Adetokunbo Mumuni and I am the Executive Director of the Socio-Economic Rights and Accountability Project (SERAP) in Nigeria. I would like to thank you for this opportunity to make a statement to this Implementation Review Group briefing for NGOs.
I would like to tell you first about some of the work of my organisation contributing to the promotion of the UN Convention against Corruption in Nigeria. I would then like to mention some recommendations regarding Articles 34 and 35 relating to consequences of corruption and compensation for victims.
SERAP was created in 2004 and registered as a non-governmental, non-profit organization under Nigerian laws. Since its establishment, SERAP has worked to hold the government to account through the framework of human rights and anti-corruption laws and standards. We have continued to offer free legal advice and services for victims of corruption and economic and social rights.
SERAP is a member of the UNCAC Coalition and has observer status with the African Commission on Human and Peoples’ Rights in Banjul, The Gambia. SERAP is also a member of the UN Global Compact, and works closely with the Global Compact office in New York. We also work closely with the Independent Corrupt Practices and Other Related Offences Commission (ICPC), and the Economic and Financial Crimes Commission (EFCC) in Nigeria.
Through strategic litigation efforts we regularly bring cases before Nigerian courts, the Court of Justice of the Economic Community of West African States (ECOWAS), the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights which raise issues of fundamental importance in human rights and anti-corruption standards, in particular, the UNCAC.
I will highlight just two of the most prominent of our litigation efforts on corruption and human rights; firstly, the widely cited judgment on the right to education by the Court of Justice of the Economic Community of West African States or ECOWAS.
The case started with information SERAP received from whistleblowers on the allegations of corruption in the Universal Basic Education Commission (UBEC). After that, SERAP staff and consultants successfully investigated and obtained critical information on massive corruption in the UBEC boards including in nine states. SERAP then petitioned the Independent Corrupt Practices and Other Related Offences Commission (ICPC) which conducted further investigations and produced a report. This initiative led to the recovery by the ICPC of over N3 billion (calculated at 158 naira to a dollar) meant for the education of disadvantaged and disabled children but misappropriated by top officials of the UBEC.
In 2007 we filed a case before the ECOWAS Court of Justice in Abuja, arguing that massive corruption in a government education body amounted to a denial of the right to a free, quality and compulsory education for Nigerian children. In a landmark judgment delivered in November 2010, the ECOWAS Court upheld SERAP’s submission and declared that the Nigerian government has a legal responsibility to provide as a right, free, quality and compulsory basic education to every Nigerian child.
The ECOWAS Court in its judgment stated that there was prima facie evidence of embezzlement of funds on the basis of the reports of the ICPC. The Court also stated that while steps should be taken to recover funds and/or prosecute the suspects, the Nigerian government should provide the funds necessary to cover the shortfall in order to avoid denying any of its people the right to education. The court also asked the government to ensure that the right to education is not undermined by corruption. The court held that the UBEC has the responsibility to ensure that funds disbursed for basic education are properly used for this purpose. Unfortunately, the Nigerian government has not yet implemented the decision despite several efforts by SERAP and others requesting the government to do so.
We filed a second case in 2009 against the Nigerian government, the Nigerian National Petroleum Corporation (NNPC) and six major oil companies operating in Nigeria before the ECOWAS Community Court in Abuja over pollution and associated human rights violations in the Niger Delta, and denial of the people to their natural wealth and resources. Other Defendants in the suit were: Shell Petroleum Development Company (SPDC); Elf Petroleum Nigeria Ltd; Agip Nigeria PLC; Chevron Oil Nigeria PLC; Total Nigeria PLC; and Exxonmobil Corporation. Although the ECOWAS refused to rule against the multinationals, it nonetheless held the Nigerian government responsible for these violations.
Among others the ECOWAS Court asked the government to: A. Take all effective measures, within the shortest possible time, to ensure restoration of the environment of the Niger Delta. B. Take all measures that are necessary to prevent the occurrence of damage to the environment. C. Take all measures to hold the perpetrators of the environmental damage accountable. Unfortunately, the government has not implemented this judgment despite repeated requests by SERAP, Amnesty International, the International Commission of Jurists and others.
Apart from our litigation efforts, SERAP has carried out anti-corruption and ethics training and sensitisation seminars for 200 magistrates and support staff in Lagos State. The UNCAC was the primary document we used through the project. SERAP has also published a document titled Understanding the UNCAC. This training was made possible through funding from the Dutch Government.
Also, SERAP has prepared and submitted to the National Assembly a bill to domesticate the UNCAC. SERAP organized a parliamentary dialogue on the issue.SERAP followed this up with other initiatives including issuing an open letter to the members of the National Assembly urging them to support domestication of the UNCAC in Nigeria. Unfortunately, this has not yet been taken forward by the National Assembly but we are hopeful that in the coming months we see some progress on this front. This work has been supported by the National Endowment for Democracy.
I would like now to turn to the recommendations on articles 34 and 35.
Although the words used seem to give considerable latitude to countries in determining the parameters of their application (i.e., subject to the fundamental principles of the state’s domestic law) articles 34 and 35 provisions are far reaching, and will undoubtedly enhance deterrence by creating additional weapons: civil and administrative sanctions. The two articles signal a resolve on the part of negotiators of the UNCAC to unleash the power of private civil litigation and collateral legal and administrative sanctions on persons that commit corrupt practices. Moreover, recalling the difficulties associated with the investigation and prosecution of offences, the evidence obtained from civil trials could be used in on-going investigations or in future criminal trials.
The above highlights SERAP’s approach to the operationalization of articles 34 and 35 of the UNCAC. Basically, we believe that these provisions contain very progressive statements on the consequences of corruption, and on the need for victims of corruption to receive compensation. These provisions are written exactly for regions like Africa (including my country Nigeria) where large scale corruption has had huge consequences in terms of undermining the well-being of the citizens and denying them the chance for personal development and prosperity. These victims of corruption hardly receive any compensation presumably because the modalities for doing this have not yet been established.
As noted, SERAP has been able to work around this through the application of international human rights. Corruption especially high level corruption, strikes at the heart of the rule of law which is essential for the enjoyment of human rights; it introduces an element of subjectivity and arbitrariness into administrative discretion and enforcement of criminal law which can result in many violations of human rights; it destroys judicial independence and impartiality which are essential for the provision of remedies for violations of human rights; and it weakens democratic institutions through the capture of the democratic process by special interests. It also encourages a culture of institutionalised impunity of human rights violators.
Perhaps, the way forward is to encourage states parties in their implementation of the UNCAC to enact national laws on civil remedies against corruption. This will be fulfilling the requirements of articles 34 and 35. We should also consistently encourage victims of corruption to use the human rights framework to file cases for compensation not only against multinational corporations but also against corrupt public officials. Training of lawyers and other members of the civil society is important for them to be able to engage with the issues. Non-governmental human rights and anti-corruption organizations should be supported to provide legal advice and assistance to victims of corruption and associated human rights violations. Collaborative work between anti-corruption and human rights defenders is crucial if any success is to be recorded in this endeavour.
A separate complaint mechanism similar to those existing within the human rights mechanisms should be established to allow victims of corruption to file complaints before this body. This is clearly feasible and practicable if there is necessary political will to make it happen.
The international community should also establish a global trust fund for victims of corruption. This is already happening for victims of international crimes recognized under the Rome Statute of the International Criminal Court. There is no reason why the same cannot be done in serious cases of corruption. Trust funds for victims of corruption would help to address the developmental needs of the victims of corruption.
As SERAP has done frequently in Nigeria, civil society groups should also be encouraged to use Freedom of Information laws in their countries where such laws exists to implement the provisions of articles 34 and 35 of the UNCAC. In countries where the laws do not exist, pressure should be brought to bear on these countries to enact these laws without delay.
Overall, guidelines should be developed to encourage consistent and universal enforcement ofarticles 34 and 35 on the domestic front. Suggested elements of any such guidelines may include some of the points highlighted above but other points like reaffirmation of commitment by states parties to the provisions of articles 34 and 35 in particular and the UNCAC in general; specific commitment to review and harmonize national laws to implement articles 34 and 35 provisions in a way that will allow victims of corruption to seek remedies before national institutions and courts, as well as commitment to involve civil society groups in the review and harmonization of any such laws; commitment to specifically allow National Human Rights Commission to hear cases of corruption (as is the case in Ghana for example); commitment to include in their human rights reporting obligations information on the degree to which they are implementing articles 34 and 35; and commitment to establish a trust fund for victims of corruption.