By Robert Wundeh Eno
Kolawole Olaniyan’s Corruption and Human Rights Law in Africa is a unique departure in many senses from typical books on corruption.
Some recent writings want us to believe that corruption is only a recently developed deviation in public morality. It is not. Corruption has been with us from the creation of humankind. The Roman Empire, for example, was already plagued by the buying of votes. Corruption is mentioned in the Bible, the Koran, Hindi writings, the teachings of Buddha and in Hebrew scriptures. In ancient Greece, Plato wrote in his ‘laws’: “The servants of the nations are to render their services without any taking of presents…The disobedient shall, if convicted, die without ceremony”.
This is evidence to the fact that corruption and indeed the struggle to combat it, has been there since the history of humankind.
In the first sentence of his book, Corruption and Human Rights Law in Africa, Dr. Kolawole Olaniyan, restates this irrefutable truth, that “Corruption is as old as humanity”.(1)
Kolawole Olaniyan in this book brings us face-to-face with the dangers of corruption not only to socio-economic and political development across the globe, but in Africa in particular, and that in spite of the concerted efforts to combat this scourge at national, regional and global levels, it continues to flourish with catastrophic consequences on the enjoyment of human and peoples’ rights in Africa.
While recognising the efforts made through the criminal law frameworks, at national, regional and global levels, to combat corruption, Olaniyan challenges us to think outside the box, and adopt the more attractive and all-embracing human rights law approach, to complement, but not replace, the criminal law approach. He wonders why despite the increasing global recognition of the connection between corruption and human rights, the two concepts are still to a large extent, treated separately.
Focusing on Africa, Olaniyan examines the source of corruption (large scale) in the continent, the criminal law instruments and mechanisms put in place to combat corruption nationally, sub-regionally and continentally, the clear lack of understanding of the very concept and absence of definition, and above all, the effects of corruption on the human and peoples’ rights guaranteed in the African Charter on Human and Peoples’ Rights. The approaches adopted to combat corruption by the national legal frameworks, as well as the approaches provided in the four regional and global instruments examined in this book, demonstrate a clear disconnect between corruption and human rights.
Due to the very nature of corruption, the secrecy under which it is practiced, lack of understanding of the very concept, absence of a clear and universal definition, coupled with the manner it is conceived by different peoples in different places, it is almost impossible to determine with certainty or exactitude the level of corruption in a state, and its effects on ordinary individuals. For the most part, because of this lack of understanding and confusion, corruption was and still is considered a victimless crime.
Olaniyan deflates this narrow understanding and has demonstrated in Corruption and Human Rights Law in Africa, that corruption has as its principal victim, the ordinary citizens, who are usually the most vulnerable in society, and who because of the lack of understanding of the real effects of corruption, usually end up without any effective remedy. That is why he propounds in this book that “as a matter of justice and fairness, they (victims) should ideally be entitled to an effective remedy through the anticorruption legal framework or human rights law.
In Chapter One, Olaniyan discusses the historical and conceptual frameworks of corruption and human rights law, noting that whereas the effects of corruption on human rights may seem self-evident, this link is rarely seriously explored, because ‘corruption is still narrowly considered as an ordinary crime and victimless”. He exposes the reason for this narrow mindedness, arguing that “at the heart of the matter is the reliance on a restrictive notion of corruption to address the grave problem that it has become (and its effects on human rights). (25).
The lack of understanding of the very concept of corruption and its impact on human rights is exacerbated by the lack of a universal definition of the term corruption, and the few definitions that do exist, are usually vague, imprecise, sometimes confusing and limited to criminal and law enforcement fields, and almost never include the victim element of corruption, (25) or reflect elements of the accountability of states for the human rights violations faced by victims of large scale corruption (73).
Chapter Two looks at the international dimension of corruption and establishes a link between corruption, money laundering and poverty. Using three African countries (Angola, Equatorial Guinea and Nigeria) to illustrate this relationship, Olaniyan demonstrates the challenges faced prosecuting large scale corruption perpetrated by high-ranking government officials, including Heads of State and Government and close members of their families. The difficulty of proving a case of corruption is enormous, but even when proven, Olaniyan notes that “the fundamental weakness of assets recovery” becomes glaring. (100). It is usually not clear whether the entire asset is fully recovered and how the recovered asset is used to provide effective remedy to citizens who are the real victims of corruption. In this Chapter, Olaniyan recognizes the important role Courts can and do play in holding African leaders accountable for the sake of victims of human rights violations caused by corruption. (100).
In Chapter Three, the book examines the national legal frameworks for fighting corruption in Africa. Today, it is rare to find any country in Africa without legal frameworks or institutions to fight and combat corruption, the only difference being on the legal system of the country (common law or civil law) or whether the country has ratified and domesticated a treaty in their legal system.
Using the same three countries mentioned in Chapter 2 as case studies, it is clear that the legal frameworks are in two main categories: constitutional and legislative. The constitutional provisions to fight corruption are particularly important, in terms of their potential to serve as a code of behavior, however, Olaniyan cast a shadow on them as effective tools to fight corruption, because they ‘are deemed programmatic and aspirational goals and therefore are mostly not justiciable, in the sense that citizens have no legal standing to challenge the government for non-compliance”. (130)
In the use of constitutional or legal framework, there are major obstacles in the fight against corruption, including the use of immunity clauses, prosecutorial discretion and political appointees, and the independence and effectiveness of anti-corruption mechanisms, executive interference and political pressure. Olaniyan proposes solutions to some of the obstacles, suggesting with respect to immunity clauses that “a public official, regardless of their title or office, will receive immunity that corresponds only to lawful official actions, and not serious crimes like corruption”. (142)
Olaniyan examines the international legal frameworks for fighting corruption across Africa in Chapter Four, and identifies three phases in the internationalization of the fight against corruption, namely: the tolerance of corruption in international business transactions, the twofold denial of the negative effects of corruption, and political resistance to adopting strong instruments to address the problem, and the engagement and discussions around development and governance concerns in developing countries. The latter phase coinciding with the end of the Cold War, globalization, increased technology, and the establishment of Transparency International.
Comparing anti-corruption treaties adopted at sub regional, continental and global levels, Olaniyan concludes that the objects and purposes of all the four anti-corruption treaties examined in this book are essentially the same. Some of the instruments make passive references to human rights while others omit any explicit reference to human rights, and there is no reflection of a strong tendency to recognize the connection between corruption, development, good governance and human rights in the normative content of the instruments.
Chapter Five on the effects of corruption on human and peoples’ rights describes in detail the devastating effects of corruption on the full and effective enjoyment of the human and peoples’ rights guaranteed in the African Charter and other human rights instruments. By revealing the immense human consequences of corruption, Olaniyan makes a case for human rights law to serve as a veritable complementary framework to combat corruption. Using a catalogue of rights guaranteed under the Charter and other human rights instruments on the continent, he demonstrates the strong causal relationship between corruption and human and peoples’ rights, as well as clearly identifies the direct victims of human rights violations in each case. While recognizing the rich jurisprudence developed by the African Commission, Olaniyan believes supranational human rights bodies such as the Commission and the Court can and should use the broad mandates conferred on them, to advance a human rights based approach to combating corruption.
The potential of human rights law in combatting corruption in Africa, as the title suggests, in Chapter 6, demonstrates that human rights law and mechanisms have the capacity to provide more effective remedies to victims of corruption than the traditional criminal law mechanisms. The longstanding legal principle of ubi jus, ibi remedium gives credence to Olaniyan’s thesis and provides a perfect platform for human rights law as a satisfactory complementary framework to combat corruption.
The effectiveness of the traditional criminal law instruments as the only approach to fighting corruption is put on the spotlight in this book. Olaniyan does not call for the abandonment of one approach over the other. While identifying the strengths and weaknesses of both approaches, he believes they can and should complement each other.
A clear warning is sent out to the international community when Olaniyan reminds us that “corruption breeds terrorism (and other organized crimes), encourages money laundering (and vice versa), precipitates poverty, undermines the operations of the rule of law, the working of the institutions of governance and, ultimately, leads or contributes to violations of human rights, and as such sufficient political will must be mustered to heed this warning.
Olaniyan also argues that “If Africa is to truly exercise its sovereignty – both political and economic – it must make as its utmost priority the betterment of its peoples without distinction of any kind.” According to him, “Sovereignty implies conducting an independent foreign and internal policy, building of schools, construction of roads, in brief, all types of activity directed towards the welfare of people. Sovereignty cannot be conceived as the right to kill millions of innocent people. Sovereignty is not a licence for states and senior public officials to commit acts of corruption that imperil human dignity, and with it citizens’ lives and hopes for a better future. Sovereignty should not (and cannot) be invoked to shield perpetrators of corruption from justice or victims from accessing effective remedies. The legal protection of human and peoples’ rights should therefore be the primary aim of the African Union and its member states. Deploying human rights law as a complementary framework to prevent and combat corruption can contribute to continental (and global) efforts to improve both the effectiveness of the regional human rights mechanisms and the instruments against corruption.”
Even so, “the key to success is ensuring global implementation of [anti-corruption] instruments [and human rights law] at the national levels, and establishing effective mechanisms for the international community to enforce collectively the spirit and the letter of national commitments.”
He proposes the establishment of a number of well thought out supra-national institutions to help in the fight against corruption in Africa. The apprehension that can be expressed here is that, with an already cash-strapped African Union, with a proliferation of institutions that are usually poorly funded, the institutions being proposed by Olaniyan will suffer the same fate and rendered them weak, ineffective, manipulated and perhaps, themselves corrupt, bringing us back to Olaniyan to proffer another solution.
This excellent book by Dr. Olaniyan lends itself to be read and reread in order to understand the relationship between corruption, development, the rule of law, governance and human rights. It is only when this relationship is understood and fully established that we can begin to deconstruct, in a constructive way, policies, guidelines, laws and appropriate mechanisms to effectively combat corruption.
The book’s excellent quality is buttressed by the fact that it was thoroughly reviewed by a host of law professors, including 6 anonymous reviewers commissioned by the Oxford University Press.
I am in full agreement with the renowned Professor of International Law and one of America’s best legal brains, Dinah Shelton of the George Washington University Law School when she said of Olaniyan’s book: “His focus is Africa but the valuable lessons he teaches in this comprehensive study can resonate throughout the world. The result is a comprehensive and holistic legal framework for addressing some of the root causes of human rights violations and poverty, not only in Africa, but wherever corruption exists.”
I can’t recommend this book enough. Corruption and human rights law in Africa is a perfect companion for all, but more importantly, for students interested in policy development, university lecturers, government policy makers, human rights and anti corruption advocates, and intergovernmental organizations seeking effective ways of combating corruption (such as the African Union and the United Nations).
Dr Robert Wundeh Eno, is Chief Registrar, African Court on Human and Peoples’ Rights, Arusha, Tanzania