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Human Rights as a Basis for Recovering the Proceeds of Grand Corruption

Document Cited authorities 2 Cited in Related
Vincent
Published date01 November 2018
Date01 November 2018
Author
DOI10.3366/ajicl.2018.0245
Pages483-506
INTRODUCTION

Grand corruption is the extreme form of corruption that pervades the highest levels of a national government, leading to a broad erosion of confidence in good governance, the rule of law and economic stability.1 It is characterised by the enormity of the wealth appropriated and the seniority of public officials involved.2 Although the conduct (which may manifest in wasteful or questionable expenditure)3 exists in every country, it appears to be particularly devastating to the economies4 and citizens of post-colonial states in Sub-Saharan Africa (SSA). Thus, in 2001, Transparency International in 11 African states adopted the Nyanga Declaration on the Recovery and Repatriation of Africa's wealth which in one of its preambles lamented that:

[A]n estimated US$ 20–40 billion has over the decades been illegally and corruptly appropriated from some of the world's poorest countries most of them in Africa, by politicians, soldiers, businesspersons and other leaders, and kept abroad in form of cash, stocks and bonds, real estate and other assets.5

Interestingly, the stream of corruption which the Nyanga Declaration strongly condemned has not stopped flowing as corrupt public officials in SSA countries remain deeply committed to plundering national wealth. For example, in January 2016, Nigeria's Information Minister alleged that between 2006 and 2013, 55 top officials in government and private establishments looted 1 trillion and 34 billion naira (about US$9 billion) from the treasury of Nigeria.6 Similarly, in Sierra Leone, the government's purchase of 100 buses from China – otherwise referred to as the Busgate Scandal – is believed to have cost the national treasury $12 million in the same way that opportunists capitalised on the tragedy of the Ebola epidemic that ravaged the country to plunder $14 million of Ebola funds.7 Furthermore, in Mali, there were $14 million worth of jet and defence scandals involving the political elite, leading the International Monetary Fund (IMF) and European Union to suspend economic support to the country.8 Regrettably, the loss to victim states’ economies is aggravated by the transfer of the plundered assets (through the mechanism of money-laundering) out of the locus of the predicate offence9 into personal bank accounts and businesses located in renowned world capitals and cities such as in the US, the UK, Switzerland, the British Virgin Islands, Liechtenstein and the Cayman Islands.10

Because such monumental misappropriation of wealth significantly undermines the second-generation rights11 of victim states’ citizens, there is the imperative need to recover the assets. Where assets plundered from the national treasury of a victim state are located in foreign jurisdictions (custodial states), the United Nations Convention Against Corruption 2003 (UNCAC) enjoins custodial states (or states other than the victim state) to cooperate with the victim state in recovering and repatriating the assets to the latter.12,13 This is, however, limited by the rule that only the victim state possesses the actio popularis to claim or initiate the transnational recovery of such assets. Importantly, such cooperation is dependent on several variables, particularly the political will of both the victim state and the custodial state. There are times when the custodial state is unwilling to positively respond to the victim state's request and also moments when the victim state is unwilling to ask for assistance. But more often than not it is the victim state that is unwilling to ask for cooperation. Quite strange! The truth is that the victim state, being an abstraction, cannot ask for help. It can do so only through the intermediacy of natural persons, that is, its officials. There is no problem where its officials faithfully represent its interest before other states for the purpose of recovery. But the problem arises where such officials hinder the recovery capacity of the victim state because they participated in plundering its collective patrimony.

This article examines victim states’ inability to recover their plundered assets because of their public officials’ culpability in the crimes or conduct from which the assets derive. Relying on the jurisprudence of international human rights law, it interrogates the adequacy of the traditional means of asset recovery. Because of the drawbacks in such a state-based approach, it advocates the introduction of a human rights-based mechanism for recovering such assets to the effect that custodial states, states other than victim states and even non-state actors (NSAs) would have a legal basis to participate in the process.

Section II considers the extant assets recovery regime, examines some indices of victim states’ reluctance to recover their stolen wealth, and critiques the contemporary relevance of victim states’ monopoly over assets recovery. Section III demonstrates the connection between corruption and human rights, and goes further to justify the need for a paradigm shift from a state-based assets recovery mechanism to a human rights-based assets recovery regime. Thereafter, section IV discusses the modalities for the participation of custodial states, states other than victim states and NSAs in asset recovery. Section V concludes the discussion.

 TRADITIONAL MEANS OF ASSET RECOVERY

Asset recovery comprises both provisional (seizure and freezing) and permanent (confiscation and forfeiture) measures. It is a critical component of the anti-money-laundering legal regime. Between 1986 when the US and the UK were lone rangers in money-laundering prohibition14 and 2003 when the UNCAC was adopted, most, if not all, states have prohibited money-laundering. Specifically, Article 31(2) of the UNCAC obliges each state party to take such measures as may be necessary to enable the identification, tracing, freezing or seizure of, inter alia, the proceeds derived from corruption for the purpose of eventual confiscation.15 The traditional means of inter-state or transnational assets recovery is victim state-based, that is, only the state that has suffered from the underlying corrupt and associated money-laundering conducts16 (the victim state or requesting state) is competent to sue in civil claim17 or to invoke the mutual assistance of another state (the custodial or requested state) in criminal recovery.18 Asset recovery based on mutual assistance is the focus of this article. Significantly, because a state is an abstraction for which only natural persons must act, asset recovery machinery is ultimately driven by state organs or agents with express, inherent and ostensible authority.19 For victim states, this means that state officials who looted and laundered national assets into their personal estates are coincidentally those entrusted with the responsibility for initiating the process for recovering them. But it is ridiculous to expect officials who elevated their personal interest over the collective interest by plundering national assets to request (on behalf of the victim state) foreign assistance to recover those assets in the plunder of which they were partakers or participants. Expectedly, those corrupt officials have various ways of undermining the recovery capacity of victim states as the instances below demonstrate.

In the first place, an incumbent government would not request mutual assistance in respect of the assets plundered by its officials. Because he who comes to equity must come with clean hands, this circumstance is understandable: their hands are so soiled and their bank accounts filled with looted wealth that they would not initiate recovery efforts either against their own illicit assets or those of their colleagues. Thus a country like Gabon whose late President Omar Bongo was implicated in the laundering of billions of dollars he misappropriated from his country's treasury20 could not originate any request for asset recovery. Similarly, during the administration of Mobutu (who was believed to have plundered millions of dollars from the treasury of the DRC), no person could on behalf of the country initiate any request for the recovery of its national assets. In the same vein, no body or entity could stand and claim on behalf of Kenya during the regime of Arap Moi who is believed to have siphoned an amount in excess of £1 billion and illicitly acquired properties in London, New York and Australia.21 The occasion where an incumbent government usually proceeds against the assets of some serving officials is when they fall out of the favour of the top national leadership.22 This probably explains the zeal with which the Obasanjo-led Nigerian government (1999–2007) hunted for the UK-based illicit assets of Joshua Dariye23 and Diepreye Alamieyeseigha24 (both enemies of the central government)25 when they were respectively governors of Plateau and Bayelsa States. Otherwise, it seems odd that the same government failed to take similar action against other governors and officials whom security agencies and the country's anti-money-laundering agency – the Economic and Financial Crimes Commission (EFCC) – investigated and found to have laundered illicitly acquired wealth abroad through lodgment into personal bank accounts, purchase of real property and portfolio investment.26

Secondly, since a request is usually made against the officials of a defunct government, the fate of recovery is down to chance as it is determined by the eventuality of the ascendancy of a recovery-minded government to the seat of power. For example, when Kenyans celebrated the electoral victory of Mwai Kibaki over incumbent President Arap Moi of Kenya in 2002, they thought their new President's ride to power on an anti-corruption platform automatically translated into passion for recovery. In the same year, Kibaki commissioned international risk consultants Kroll to investigate claims of corruption carried out by Moi's regime. Two years later, Kroll...

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