South Africa can improve its international relations and global investment ratings if it throws its weight behind the development of a new International Anti-Corruption Court (IACC) to prosecute kleptocrats, corrupt officials taking bribes and those who pay them.
Richard Goldstone, the Integrity Initiatives International vice-chairperson and a former constitutional court judge, told delegates at the Anti-Corruption Enforcement in South Africa conference in Umhlanga, KwaZulu-Natal, this week that there is growing local and global support for the establishment of the proposed specialised court to prosecute corruption cases that member countries are either unable or unwilling to tackle.
Integrity Initiatives International is a global NGO leading a campaign to set up the court, which would be similar to the International Criminal Court (ICC), except judges would travel to member countries to hold court, making it accessible to citizens and journalists.
Goldstone said cases of corruption in Africa are rarely contained in the continent, which opens up avenues to seize assets that corrupt officials and private individuals stash around the world from Canada and Switzerland to the United Arab Emirates and Singapore.
Africa loses about $88.6 billion or 3.7% of itsGDP annually to illicit international flows, according to the Economic Development in Africa Report 2020 by the United Nations Conference on Trade and Development.
“Since Nigeria’s independence in 1960 experts believe that not less than $582 billion were syphoned by public and private officials in Africa’s most populous democracy,” Goldstone said.
“Corruption on the scale of state capture [in South Africa] would not be possible without the nefarious complicity of business. Criminal conspiracy around the world involves banks, law firms, real estate agencies and other financial service providers, essential aids to abet kleptocrats, high officials in the state for the international crime of money laundering.”
He said research had shown that more money appears to be flowing out of the Western world into Western accounts than is flowing through Western generosity into the Western world, especially in Africa, where outflows are likely exceeding $100 billion a year.
“I am an ardent supporter of the IACC, a court that would hold kleptocrats, senior state officials and their co-conspirators, those so-called professional enablers, accountable where national authorities are unable or unwilling to do so,” Goldstone said.
“The envisaged court would have jurisdiction over crimes committed by nationals of IACC member states and crimes committed in the territory of an IACC member state, similar to the jurisdiction of the ICC.”
He said the IACC would be a court of last resort to enforce laws according to the United Nations Convention Against Corruption, namely the bribery of public officials, embezzlement and other misappropriation of public funds, money laundering and the obstruction of justice.
He said most of the UN Convention Against Corruption signatories had domesticated the crimes of corruption defined in the convention.
“Kleptocracy is not a consequence of the lack of laws, it facilitates criminal activities. Kleptocrats have captured their criminal justice systems, they have taken control of the prosecuting authorities, the police and the courts. The laws are not enforced, ” he said.
“Few kleptocrats keep their ill-gotten gains at home. Billions of dollars of stolen assets are laundered in a number of countries that include Canada, the Netherlands, Singapore, the United Arab Emirates, Switzerland, the United States, the United Kingdom and its overseas territories, and there are others.”
He said kleptocrats would not allow their countries to join an international anti-corruption court and would do everything in their power to hamper investigations into their criminality.
“However, if some of the countries where laundered funds are held join an international anti-corruption court, and several of them are considering doing so, their illicit assets could be identified and frozen by the court. Through orders of restitution those funds could be repatriated to the countries from which they have been stolen.”
He said if in some cases there was a high risk of the funds being used for corrupt gain once returned they could be repurposed to be spent on humanitarian programmes or repatriated once it was safe to do so.
Goldstone said the IACC’s expert investigators and prosecutors could be called on for assistance by countries that did not have capacity and to obtain evidence obtained in foreign jurisdictions.
He said the court would be guided by the experience of the ICC and other international and hybrid courts.
Goldstine said more than 50 former presidents and prime ministers had signed a declaration calling for the formation of the IACC.
“Columbia was the first country to call for an IACC in 2016, more recently the Netherlands, Canada, Nigeria, Moldova and Ecuador have committed to working towards the creation of the court. In January this year the EU parliament passed a resolution calling for the IACC.
“In the United Kingdom, the labour party which has a good chance to win the elections next year announced last month that it will champion the IACC idea,” he said.
“The effort to create this court will take time but the momentum generated in the past two years suggests it may be possible sooner that even its strongest proponents think.”
“South Africa played a leading role in establishing the ICC. I am happy that its support for the IACC has gained momentum here in the past year. It is my hope that SA will join other nations that will support the establishment of the IACC. I have no doubt this will be and will be seen to be a positive development in our international relations. It will be a meaningful step away from the events that have left a significant downgrading of South Africa in international money markets.
“Both short and longer term anti-corruption solutions can knot together a powerful anti-corruption tapestry that strips kleptocrats of their impunity and thereby helps Africa and the world reach for a better tomorrow.”