Grand corruption is a crime against humanity

Three weeks ago the United Kingdom Serious Fraud Office (SFO) announced that they had discontinued an investigation into the US$750 million Anglo Leasing scandal fraud scandal. They cited the failure of Attorney General Amos Wako to cooperate with their inquiries and his reluctance to provide evidence as reasons for their withdrawal.

We could momentarily sympathise with the SFO in their frustration. That is until we recall that Prime Minister Tony Blair also halted their investigations in 2006 into the corruption scandal between Prince Bandar bin Sultan of Saudi Arabia and British arms giant British Aerospace (BAE). Millions of dollars were paid by the Department of Defence as backhanders to the Saudi prince as part of a US$70 billion arms deal. Blair announced in parliament that investigations would have harmed the national interest.

There is a familiar ring about that pronouncement. Corruption is found everywhere and the African continent certainly does not have a monopoly on the vice. What is particular, however, about Kenyan corruption is that we can easily find a nexus between the rampant corruption and the endemic poverty, hardships and sufferings that most of our citizens are subjected to. Ours is not a poor country but one that has been impoverished by organised political theft. Without doubt there is a close relationship between the plunder of the nation and the pain of our brothers and sisters. That is what makes it so grotesque and enraging.

When families spend their lives in 10 x 10 feet rooms and take three weeks to raise funds to bury their loved ones; when your neighbours are deprived of antiretroviral treatment (ART) because of unaccounted billions from the Global Fund for Aids; when casual workers earn Sh300 for 14-hour days and spend two bob to watch the evening news relay how the grand coalition has robbed them today, then you know that grand corruption is a crime against humanity. When hundreds of thousands cannot access secondary education and the majority are condemned to an early grave then you know the heavens cry out for justice.

Believe it or not, Kiraitu Murungi was the first to declare that grand corruption was a crime against humanity. The venue was Seoul, South Korea, and the year 2003. That was just one year before the exposure on the Anglo Leasing scandal, three years before the John Githongo tapes, and long before the Triton Sh7.6 billion scandal.

Shamefully the Rome Statue does not define grand corruption as a crime against humanity. Primacy is given to civil and political rights in a hierarchal ladder of rights. Transitional justice therefore gives attention to traditional human rights abuses and leaves social injustice to the post-transitional reform era. This is shown by the fact that of 34 truth commissions held around the world between 1974 and 2005, only three recognised the intrinsic link between human rights violations and economic crimes. Yet corruption feeds and funds impunity and that is why despotic regimes have been both brutal and corrupt.

This fact was acknowledged by the East Timor Truth Commission, which calculated that 84,200 of the 102,800 victims in the country died of hunger and illness rather than being killed outright or forcefully disappeared during the Indonesian occupation. Should our own Truth, Justice and Reconciliation Commission (TJRC) not do a similar audit and count the number of victims who have died of hunger, poverty and the neglect caused by the looting of the nation’s wealth?

This requires that the commission provide an accurate and complete list of plunderers, data on the wealth amassed and make recommendations for recovering the looted wealth. In the process the commission must ensure that recovered wealth is used for reparations for victims, and rebuilding the nation. Article 79 of the Rome Statue states that victims can obtain reparations from the Trust Fund for Victims and allows for the forfeiture of proceeds, property and assets derived directly from crimes.

The TJRC could start by revisiting the Kroll Report, which gives accurate information on how Sh13 billion was looted and invested in banks and property in 28 countries. The Ndungu Report is another reliable source. Kenya Land Alliance has shown how 1,189 acres of Karura Forest lost the treasury Sh8 billion, while it would cost a mere Sh7.5 billion to employ the required 33,000 primary teachers in the nation’s primary schools.

Last week the head of state told us of plans to build 560 secondary schools before 2012. All of them could be completed with the Sh7.6 billion looted in the oil scandal. That money must be recovered, or will investigations be dropped and amnesty granted after another Damascus-like conversion by Bro ‘Peter’ Devani?

Perhaps most of us are not aware that the first revision of the ICC statute will take place this year. Would it not be appropriate that our national human rights commission, the Kenya National Commission on Human Rights (KNCHR), move a motion and campaign to have Article 7 amended to include grand corruption as a crime against humanity?

In Article 7 (i) (k) we are given the elements needed to prove a crime against humanity. These include when a perpetrator has inflicted great suffering or serious injury while being aware of the circumstances and acting in a systematic manner against civilians, all the while knowing the link between his crime and its consequences. In the case of grand corruption, all of these elements are met.

The Waki envelope contains one list of perpetrators of crimes against humanity. If the ICC statute is amended to include corruption as a crime against humanity, we could in the not-too-distant future be sending another list of names off to the ICC prosecutors. Do not be surprised, then, to discover that several names will appear on both lists.

* Father Gabriel Dolan is a human rights activist with Nairobi’s Catholic Justice and Peace Commission (CJPC).
* Please send comments to [email protected] or comment online at http://www.pambazuka.org/.