An international court with teeth needed to combat global scourge of grand corruption

by | Apr 16, 2024 | Chapter 9, General | 0 comments

By Richard Goldstone, Paul Hoffman and Ian Lynch

The establishment of an International Anti-Corruption Court would be a powerful step forward to successfully address the scourge of grand corruption as it manifests in the form of kleptocracy and State Capture.

It is appropriate in election season that Daily Maverick has given prominence to the work and views of those concerned with countering serious corruption. The plans of DA shadow minister of justice Glynnis Breytenbach for reform of the anti-corruption capacity of the criminal justice administration and the “whole-of-society” approach of former Corruption Watch member Kavisha Pillay both richly deserve careful consideration.

Their efforts complement each other and also the oft-quoted words of Judge Navi Pillay, when she was UN Human Rights Commissioner, who remarked: “Make no mistake about it, corruption is a killer.”

The scourge of corruption worldwide is also receiving close attention in Hamburg this week when the drafting team of Integrity Initiatives International meets to debate the framework of an international treaty aimed at establishing an International Anti-Corruption Court.

We add three points on the topic that so concerns three outstanding South African women and should concern all freedom-loving people. Our points are made from the perspective of lawyers working on countering corruption worldwide.

The three points we make are that international obligations, solemnly undertaken to counter corruption, are too often honoured in the breach; corruption is a human rights issue and should be tackled accordingly; the establishment of an International Anti-Corruption Court (IACC) would be a powerful step forward to successfully address the scourge of grand corruption as it manifests in the form of kleptocracy and State Capture.

International obligations

Politicians, from the UN to local village council level, are aware of the corrosive effects of corruption, as are courts called upon to address corruption in their judgments. There are currently 185 countries that have signed up to the United Nations Convention Against Corruption (Uncac). Many of these countries have domesticated the obligations undertaken in Uncac into their local laws, which means that public interest litigants can (and do) seek to hold them to the obligations contained in the treaty.

In terms of article 6(2) of Uncac, an undertaking is made by signatory nations – and is all too frequently honoured in the breach by many of them. Article 6 demands that signatories ensure the existence of a body or bodies that prevent corruption, granting such bodies the necessary independence.

The then secretary-general of the UN, Kofi Annan, observed after the Uncac treaty was accepted by the UN General Assembly in October 2003 (it entered into force in December 2005) that “the adoption of the new convention will be a remarkable achievement. But let us be clear: it is only a beginning. We must build on the momentum achieved to ensure that the convention enters into force as soon as possible.”

The political will to make the difference to which Annan alludes has not yet been sufficiently developed to counter corruption fully in its ugliest manifestations. This task is a work in progress and it is the business of all freedom-loving people worldwide who wish for peace that is secure, progress that is sustainable, and prosperity that is equitably shared.

It is in the architecture of the anti-corruption machinery of state that proper compliance with Article 6 is all too frequently lacking. The “necessary independence” is not routinely accorded to the entity or entities tasked with countering corruption at national level.

Their ability to act without fear, favour or prejudice is curtailed when executive interference, influence and control are tolerated in the structure and operations of such entities. This leads to the type of situation that was described by then Chief Justice Mogoeng Mogoeng in the third Glenister case:

“All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal.

“We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”

Worldwide, attention needs to be given to the need for dutiful and proper compliance with the existing treaty obligations that are relevant to eliminating the scourge of grand corruption. Uncac is the only universal treaty, but there are many more at continental and regional levels.

Building the necessary political will to achieve compliance via public education, voting wisely, lobbying of political decision-makers and public interest litigation (like the Glenister cases) are the tools available to those who have had enough of the corrosive effects of grand corruption.

Corruption as a human rights issue

In the second Glenister case in South Africa, the joint majority judgment of the Constitutional Court explains the relevance of human rights to the work involved in countering corruption.

“There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project.

“It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”

In any country which has a justiciable Bill of Rights and an independent judiciary, it is possible to win the type of relief that was obtained in the Glenister litigation. The judgments quoted above are a gift to the people of nations that are bound by the Uncac provisions to which we have drawn attention above.

The justiciable obligation of states to respect human rights finds legal remedies available in domestic law. Corrupt siphoning of public funds disables the realisation of the goals of any Bill of Rights. Proper service delivery in respect of guaranteed rights is crippled by the diversion of public funds to those involved in corrupt activities. Corruption is not a victimless crime.

The Glenister litigation rulings

The Constitutional Court has formulated the criteria by which to judge the efficacy and effectiveness of any anti-corruption entity that is required both to honour international obligations and to uphold rights guaranteed in terms of a justiciable Bill of Rights. These criteria have become known by the acronym of their main characteristics as the STIRS criteria:

Specialised in anti-corruption work of all kinds to prevent, combat, investigate and prosecute corruption; Trained to a level that is on par with the firepower the corrupt can harness in court; Independent both in operations and in the structure of the anti-corruption entity; Resourced both adequately and in guaranteed fashion so that kleptocrats cannot shut down anti-corruption work; and Secure in tenure of office, functioning free of executive interference, influence and control.

Towards an International Anti-Corruption Court

The NGO Integrity Initiatives International coordinates a growing coalition of several hundred luminaries – including more than 50 former presidents and prime ministers and more than 30 Nobel laureates – and civil society organisations that campaign for the establishment of an International Anti-Corruption Court (IACC).

Through their advocacy, the governments of Canada, Ecuador, Moldova, the Netherlands and Nigeria have backed calls for the court’s creation in recent years. Other states, including most recently the Democratic Republic of Congo, have expressed interest in joining such a court.

This new international institution will function as a court of last resort when national governments are unable or unwilling to enforce their own laws both in the realm of civil law – to rake back loot from the corrupt – and in the criminal law sphere to punish and deter those involved in kleptocracy, grand corruption and State Capture.

The political will to adopt a treaty, not unlike the Rome Statute that gave birth to the International Criminal Court (ICC), is being built steadily and is gaining momentum. Unlike the ICC, which deals with genocide, crimes against humanity and war crimes, the IACC will have a civil chamber for recovery of the proceeds of corruption and a criminal chamber for putting the corrupt and their co-conspirators that are arrested on trial.

The advantage of the two-chamber system is that even if kleptocrats hide in countries that are not party to the IACC, their loot is frequently stashed in jurisdictions which are likely to join the IACC. In those jurisdictions it will be possible to freeze, seize and return the loot. This will take away the incentive to be involved in corruption and will act as a deterrent to those contemplating a corrupt deal.

It is up to those who still have the right to cast a meaningful vote in the elections that will see half the world going to the polls this year to cast their votes for parties that have a clear and unequivocal anti-corruption stance.

Both the embrace of the IACC and the reform of criminal justice administrations at national level to render them Uncac-compliant are the manifestations of the political will needed to address serious corruption effectively and efficiently. DM

Richard Goldstone is a former Justice of the Constitutional Court in South Africa and vice-chair of Integrity Initiatives International (III).

Paul Hoffman SC is a director of III and Accountability Now; he was lead counsel in the Glenister litigation.

Ian Lynch is the managing director of III.

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