It is time for an International Anti-Corruption Court

Grand corruption, or kleptocracy, as it is sometimes called, is one of the most intractable problems facing the community of nations today. Its tentacles stretch from the developed world to the developing world, from the rich countries to those that are still immovably poor, often despite their great store of natural resources.

The conundrum is that the kleptocrats take control of the institutions that are meant to dispense criminal justice fairly and on the basis that no one is above the law. Even when control is not achieved by the malfeasant minority, its ability to exercise influence over or interfere in the intricate investigative work required to prosecute the corrupt successfully, effectively stymies equality before the law.

This bind creates a culture of impunity for grand scale corrupt activities which erode the rule of law, good governance and accountability at all levels. The poor suffer most from this sorry state of affairs because public funds are diverted from serving their needs.

In South Africa, the perverse Zuma administration was able to have the specialist anti-corruption entity, the Hawks, persecute the Minister of Finance on trumped-up charges. That dirty trick was designed to secure his premature exit from his portfolio and improperly enable the corrupt to lay their hands on the levers of power in the Treasury. This plot nearly succeeded.

Now, post Zuma, cleaning up after the corrupt is impeded by the operatives put in place in the Hawks during the Zuma era. Crooks in blue uniforms have no appetite for going after those whose largesse put them in the positions they undeservedly hold. The friends of the kleptocrats in the business sector and elsewhere shelter, unpunished, under their protective wings.

A civil society initiative, The Peoples’ Tribunal on Economic Crime, has revealed and highlighted the inter-connected nature of corruption in successive administrations in South Africa.

The final report by the Peoples’ Tribunal, which was released in mid-September 2018, suggests that apartheid crimes committed by the state and civilians must be investigated by the United Nations. However, the UN does not really have the machinery to investigate economic crimes. The International Court of Justice only adjudicates disputes between states. It has no direct criminal jurisdiction. Other less well known agencies also lack the jurisdiction and authority needed to be successful in the necessary, but absent, confrontation with the corrupt.

The International Criminal Court, now with 123 member states, was established to counter war crimes and crimes against humanity and that is unlikely, on a proper interpretation of the Rome Statute, to include grand corruption.

Led by retired Constitutional Court Justice, Zak Yacoob, the tribunal noted:

“We stress that the events pertaining to State Capture [in the Zuma era] are integrally related to the acquisition of arms by the South African democratic government during the 1990s and the early 2000s and the sanctions-busting shenanigans during apartheid.

“It would be a mistake to examine State Capture in isolation. Apartheid economic crimes, the arms deal and State Capture are all part of one system, never tackled or resolved (although the Zondo Commission of Inquiry into State Capture is trying), and until we understand and confront apartheid grand corruption – the root of the cause – we won’t be able to prevent mass looting in the democratic era.”

There is a straightforward way to deal with the problems the tribunal has examined in the course of its work. Based on the principle of complementarity, an International Anti-Corruption Court (IACC) could and should be used to get to the bottom of grand corruption. This need is especially pertinent when it occurs in states in which the criminal justice administration is not up to the task of preventing, combating, investigating and prosecuting those involved in grand corruption.

Setting up an apex body with the necessary skills and properly trained investigators is not as difficult as one might think. It can be achieved, provided the necessary political will to do so can be generated through a groundswell of civil society activism, pressure from professional bodies and help from those who monitor and implement the UN Convention against Corruption (UNCAC) and those who research countering grand corruption for the Organisation for Economic Co-operation and Development.

It is from the work of the OECD researchers that the South African Constitutional Court has drawn the criteria it regards as necessary to be an adequately independent efficient and effective corruption-busting body. In its structure and operations an IACC will need to be properly resourced in guaranteed fashion. Its expert personnel will have to enjoy security of tenure of office. Skilled and appropriately trained investigators must be given the space to do their work without fear, favour or prejudice. The 184 countries that have signed up to UNCAC have thus far generated the political will to be seen to be standing against corruption. Doing so efficiently and to good effect is a logical next step.

It is true that some pay mere lip-service to UNCAC principles by day while they loot and pillage by night. The need to address this phenomenon by ending impunity is critical to the eradication of poverty and inequality in the world. While these perennial features of modern society continue it is impossible to build a peace that is secure, progress that is sustainable and prosperity that is equitably shared among the people of our planet.

The idea of an IACC is the brainchild of US District Court Judge Mark Wolf of Boston. After sitting in a long and complex criminal trial in which a corrupt official was found guilty of grand corruption and punished appropriately, Judge Wolf pondered upon the pervasiveness and intractability of the type of grand corruption that had kept his court busy for so long.

The IACC idea is the product of this process. Already Colombia has accepted the idea as a neat solution to the post-conflict problems it faces. Other countries emerging from a dark past are sure to follow suit and do what is best for their people by escaping the cycle of corruption via the good offices of an IACC.

President Muhammadu Buhari in Nigeria has emerged as the African champion of the idea of an international tribunal dealing with grand corruption effectively.

The simplicity of the idea of an IACC is not replicated in the rolling out of the work required to convert the idea to the lived reality of those currently prejudiced by grand corruption, which means nearly everybody. There are turf battles to be won, a great deal of persuasion to be done through advocacy work, co-option of the great and the good, conferences, debates, lobbying and public education. The UN and other world bodies certainly have a leading role to play in this process, but so do ordinary folk, especially young people and those in academia.

The IACC idea has become the mission of Integrity Initiatives International, a non-profit organisation established to turn the idea into reality. Visit www.integrityinitiatives.org to read the scholarly research and advocacy efforts needed to make a good idea into the lived reality of nations throughout the world.

Those contemplating a future career in grand corruption should think again. A specialist court to deal with kleptocrats at international level is the answer to the prayer of the Peoples’ Tribunal and many others. Its mere existence will have a deterrent effect.

The enthusiastic support of the UN for the idea could well end the notion of impunity for corrupt activities that currently holds sway in high places throughout the world. In Africa this notion is called “It’s Our Turn to Eat”. It is time for the eating to stop.

Establishing an IACC with skilled, secure and independent-minded staff, properly resourced and appropriately supported by the UN, the World Bank, the IMF, the WTO and the relevant regional organisations around the globe is the next big task of the community of nations. Confronting the corrupt is overdue. DM

Richard Goldstone is a member of the Board of III, a retired Justice of the Constitutional Court of South Africa and former Chief Prosecutor of the ICTY and ICTR.

Paul Hoffman SC is a member of the International Committee of III and a director of Accountability Now. He is the author of Confronting the Corrupt– a chronicle of the anti-corruption work of Accountability Now.