Last week, as the US-Africa Leaders Summit opened with the “Civil Society Forum”, American Vice President Joe Biden spoke on the “cancer” of corruption to the assembled representatives.
Biden hit familiar chords as he discussed the “direct threat” to stability posed by illicit flows of currency and stated that corruption “prevents the establishment of a genuine democratic system. It stifles economic growth and scares away investment.”
The Vice President’s speech echoed a theme that has been prevalent from democracy and development advocates across the world when referring to Africa. Simply, in order to progress, corruption must be tamed.
This would be a major theme of the Summit, with an eventual agreement between the United States and several African states to form a “high-level working group” to fight the scourge across the continent. However, who will take part in this working group and what the mandate would be is not immediately clear.
The Summit would wrap up with an unfamiliar retort from several African states. On Thursday, in a joint statement several senior level diplomats from across the continent told the developed world it was time to do their part in fighting corruption.
According to the diplomats, without the tax havens and money laundering made possible by western banks and lax western tax laws, corruption would not be nearly as prevalent across the developing world.
Liberia’s Foreign Minister Augustine Kpehe Ngafuan may have put the point of African leaders best when he said “There are two sides to this coin. If there were no facilitators on their side, the miscreants on our side would not have succor.”
How much does corruption effect Africa? According to Global Financial Integrity, a Washington-Based think tank that focuses on corruption, Sub-Saharan Africa is, by percentage, the most effected region in the world.
The amount of money lost to corruption is equivalent to 5.7 percent of the region’s Gross Domestic Product, a marked step up from the 4 percent global average. Worldwide it is estimated that $1 trillion is paid in bribes annually and the developing world loses up to $8.4 trillion in illicit financial flows, ten times what it receives in foreign aid.
What then, can the developed world do to work towards the end of this scourge? While whether or not the high-level working group will materialize and what its recommendations will be are yet to seen one Federal Judge from Massachusetts believes he has the answer. An International Anti-Corruption Court.
The International Anti-Corruption Court
Judge Mark L. Wolf, a Senior US District Judge for the District of Massachusetts and a former public corruption prosecutor, wrote in July at the Washington Post, condensed and updated from an article for the Brookings Institution, that the easiest way to stamp out public corruption across the globe is through the formation of an international court, modeled after, or potentially even connected to, the International Criminal Court.
The International Anti-Corruption Court, or IACC as Wolf has taken to calling it in writing, would adopt the “unwilling or unable” legal standard for complementarity that has become the centerpiece of international criminal law.
This simply means that international courts are necessarily secondary to domestic courts and will only step in if a domestic judiciary is unwilling (often times corruption exists at such high levels of government that corrupt individuals are able to escape prosecution through political power) or unable (through judiciaries and law enforcement mechanisms that are not up to the complex task of investigating and prosecuting corruption) to do so.
In Judge Wolf’s mind, the court would take advantage of the United States model, where states are not asked to investigate corruption, rather federal prosecutors and Judges are responsible for enforcing the law and determining guilt.
If states were asked to investigate and prosecute corruption there is a strong potential that prosecutors, judges and corrupt officials would find themselves members of the same circles, potentially making them “unwilling” to zealously prosecute.
The lessons of the American two-tiered justice system could then be applied to individual countries attempting to shield corrupt officials from prosecution.
While there are immense logistical challenges to the creation of the IACC, Judge Wolf rightly identifies there are significant international legal instruments that support a broad commitment against corruption.
“Grand corruption is a crime in virtually every country. It is also a violation of the United Nations Convention Against Corruption, which more than 100 countries have ratified, and the OECD Convention on Combating Bribery of Foreign Officials, which 40 nations…have signed. A commitment to combat grand corruption is also a requirement of membership in the WTO….An International Anti-Corruption Court would only be a new forum for prosecuting violations of universal, existing obligations of honesty, rather than a place for the enforcement of new norms.”
In addition to working to end tax havens and money laundering, US Federal Judge Mark L. Wolf believes he has one more way that the developed world can assist the developing world in ending corruption. When the US and several African countries create their “high-level working group” perhaps the IACC’s time will come.
Andrew Friedman is a human rights attorney and freelance consultant who works and writes on legal reform and constitutional law with an emphasis on Africa. He can be reached via email at afriedm2@gmail.com or via twitter @AndrewBFriedman.
