By Eze Anaba
BESIDES wars, diseases and violent militant groups, nothing has threatened states in recent times more than corruption. It is often stated that one of the ways a functioning democracy is judged is how it treats the issue of corruption. That is why the founders of democracy defined good governance as a government that is transparent, participatory and based on the rule of law.
Yet, corruption is especially a difficult problem in poor states like Nigeria endowed with highly valuable natural resources. The African Union, AU, has noted that corruption across African states and capital flight to developed economies run into billions of dollars every year. AU indicts senior government officials for the larger share of that amount. A timely example of the evil of corruption is poverty, inequality, insecurity and under-development in many African states. Everyone is a victim when some officials appropriate the commonwealth for their personal benefit and the chronic under-enforcement of anticorruption laws in many countries is responsible for this state of affairs..
In Nigeria for example, corruption has become a recurring theme. In several discussions where reasons behind the country’s poor showing in the development index crop up, corruption continues to hit the front seat. The reason Nigeria is so poorly rated in the anti-corruption index is because successive years of military rule and the civilian administration that succeeded the military have not been able to tackle the problem.
All hopes are, however, not lost as Dr. Kolawole Olaniyan’s new book on ‘Corruption and Human Rights Law in Africa’ responds exactly to these concerns. I have had a chance to read the book, which was recently released. Dr. Olaniyan works as Legal Adviser with Amnesty International in London. In his book scheduled to be launched in Lagos on Monday, August 18, (and with no other eminent legal personality than the Chief Justice of Nigeria, Justice Mariam Mukhtar chairing), he proposes a theoretical, legal and policy frameworks to effectively reform the traditional criminal law instrument against corruption so that corruption can be deterred and critical institutions of government improved.
Almost all of his suggestions entail the use of human rights law, in particular, the African Charter on Human and Peoples’ Rights (which African states except South Sudan have ratified) to complement a criminal law approach to the problem. He eloquently tells us the advantages of the former over the latter.
Olaniyan states, “corruption unquestionably violates Article 21 of the African Charter, as well as other substantive human and peoples’ rights in the charter. Not only is it the case that every dollar lost from corruption is one less than can be spent constructively, but also that the loss is often offset by government borrowing. These loans or interna tional aid received from abroad may be considered part of the ‘national cake’ to be shared among high-ranking state officials, or, in plain lan guage, stolen or mismanaged.”
He also argued that, “human and peoples’ rights are seriously compromised because corruption undermines the integrity and impartial ity of a government, the important values for the effective and efficient functioning of any state, and the enforcement of the rule of law and human rights. Clearly the public trust, confidence, and support on which every civilised government depends upon to discharge its duties and which is necessary for the effectiveness and survival of governments is lost without integrity and impartiality.”
Olaniyan’s thesis is motivated by the twin observations (a) that large scale corruption is incredibly harmful because it “fundamentally contrasts with even a minimal notion of the rule of law, and the ideal of government as a public trust; (b), and that although corruption is “as old as humanity,” large scale corruption in many parts of Africa has created a culture of impunity in which the corrupt need not fear punishment.
Leaning on his rich expertise of the African human rights instruments, Olaniyan notes that corruption is “a human rights violation insofar as it interferes with rights of the people to use their natural wealth and resources,” and therefore “increases poverty and economic development.” But he also powerfully argued that corruption leads to multitude of human rights violations.
In what seems to be a ground-breaking proposition, Dr Olaniyan states that corruption should be seen as a violation of the rights of the individual as against being seen as an offence against the state the way corruption is currently seen through the eyes of criminal law.
One of the most interesting aspects of the book is the idea of imposing a “public interest duty” on financials institutions and banks that accept and keep stolen funds from Africa. Dr Olaniyan said that, “in relation to stolen public funds at least, this duty of due diligence would at the minimum demand complete fidelity to the public trust. If this is so, victims of corruption and public interest groups can rely on human rights law to ensure compliance with the duties of due dili gence and Know Your Customer rules, thereby enhancing the effectiveness of the rules in practice. This public trust function would be undermined, for example, if financial institutions were to unreasonably withhold information on transactions concerning Politically Exposed Persons from the public upon request.”
I am very much in agreement with him about the insufficiency of the traditional criminal law instrument against corruption particularly in several countries in Africa beset by the culture of impunity, and the utility of human rights law to act as a complementary tool to achieve justice for victims of corruption.
Olaniyan’s seminal work is probably the most detailed elaboration of the relationship between corruption and human rights law, at least in Africa. And given the threat that corruption generally poses to developing countries today, Olaniyan’s proposal is something to be taken seriously.
EZE ANABA is Deputy Editor, Vanguard Newspaper