Using human rights to promote corruption and impunity
Being the paper presented by Femi Falana, SAN, to mark the official
opening ceremony of the Amnesty International office in Nigeria at Abuja
By Femi Falana
INTRODUCTION: Whenever I was incarcerated by successive military regimes from 1985-1998, Amnesty International (AI) waged an effective campaign for my release. Through the activities of the AI and other progressive organisations I was able to regain my personal liberty without any conditionality. Notwithstanding that I was charged with many criminal offences including treasonable felony the AI declared me a prisoner of conscience.
In thanking the AI for its contribution to the defence of human rights and demilitarisation of the country I am compelled to point out that while human rights defenders and workers are no longer detained without trial, the most economically and socially disadvantaged are still subjected to illegal arrests, detention and other human rights violations and abuses.
With the establishment of an office in Abuja it is undoubtedly clear that AI has decided to be more effective in the defence and promotion of human rights in Nigeria. Through the campaign against the death penalty AI has saved the precious lives of many people. Through the campaign against illegal detention AI has secured the liberty of many prisoners of conscience and other detainees including those who were held in dehumanising conditions.
Through the campaign for fair trial AI has ensured that the right of many accused persons to fair hearing is respected. Through the campaign for freedom of speech and assembly AI has expanded the democratic space for many people who were otherwise excluded from political participation.
Through the campaign for the observance of freedom of thought and conscience AI has protected many victims of religious and political persecution. But AI has to do much more to promote universal respect for economic and social rights if the organisation is to contribute to the attainment of the principles of universality, indivisibility and interdependence of all human rights – civil, political, economic, social and cultural rights. No doubt, this approach requires the active collaboration of AI with the victims of corruption and exploitation and underdevelopment.
In this address, I shall speak on the lacuna in human rights discourse in view of the deliberate plan of the ruling class in the country to use the law and human rights to frustrate the prosecution of the looters of our commonwealth.
Looters of our commonwealth
In response to the role of lawyers who secure injunctions to prevent the arrest, investigation and prosecution of rich criminal suspects accused of corruption we shall link the recovery of our looted wealth to the duty of the government to provide for the welfare and security of all citizens. Our position will be anchored on the provisions of local and international human rights instruments.
Human rights, corruption and poverty: Chapter 4 of the Nigerian Constitution has made elaborate provisions for civil and political aspects of human rights. However, the fundamental objectives and directive principles of State Policy which provides for social, economic and cultural rights in chapter 2 of the Constitution are not justiciable.
But similar rights are incorporated in the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap A9) Laws of the Federation of Nigeria, 2004 are enforceable. Anyone whose fundamental rights has been violated in any state of the federation is entitled to seek redress in the appropriate High Court pursuant to Section 46 (1) of the Constitution and the Fundamental Rights Enforcement Procedure Rules, 2009. But in actuality human rights are enjoyed by a tiny minority of rich and powerful individuals who have the economic wherewithal to seek legal redress whenever such rights are violated.
I had argued elsewhere that “human rights are not and should not be the preserve of the rich and wealthy. It ought to be realized that without adequate food the rights to life and human dignity are meaningless to the marginalised and vulnerable segment of the population. Similarly, the right to housing has no relevance to people who are displaced and expelled from cities due to urban renewal projects carried out by governments.
When the right to life of certain persons is violated through
extra-judicial killing by the police and other law enforcement agencies
those who depend on them for their education and welfare are rendered
vulnerable. Without access to education the right to freedom of
expression is of no consequence to millions of illiterate people. In
view of pervasive and almost absolute poverty in the society it is no
longer in dispute that socio-economic rights are not made justiciable,
majority of citizens cannot fully and effectively enjoy the civil and
political rights guaranteed by the Constitution and international
treaties.” (Falana: Nigerian Law on socio-economic rights, 2015).
Kolawole Olaniyan in his celebrated book Corruption and Human Rights Law in Africa (Oxford: Hart, 2014) has developed a framework for complementarity between promoting and protecting human rights and combating corruption. He makes three major points regarding the relationship between corruption and human rights law.
First, corruption per se is a human rights violation, in so far as it interferes with the right of the people to dispose of their natural wealth and resources and thereby increases poverty and frustrates socio-economic development. Second, corruption leads to a multitude of human rights violations. Third, he argues that human rights mechanisms have the capacity to provide more effective remedies to victims of corruption than can other criminal and civil legal mechanisms.
He emphasised three major aspects of human rights in practice – the importance of governing structures in the implementation and enjoyment of human rights, the relationship between corruption, poverty and underdevelopment, and the threat that systemic poverty poses to the entire human rights edifice.
President Muhammadu Buhari talks of $150 billion stolen in the last 10 years. The criminals who stole the huge funds and western countries which are keeping the funds have violated the human right that Nigerians with respect to development.
If a large chunk of the stolen funds is retrieved and earmarked for socio-economic development, the government can create jobs, guarantee security and ensure infrastructural development.
As President Buhari puts it, “The fight against corruption is in reality a struggle for the restoration of law and order. Corruption and impunity become widespread when disrespect for law is allowed to thrive in society.
Disrespect for law also thrives when people get away with all sorts of shady deals and the court system is somehow unable to check them. Ability to manipulate and frustrate the legal system is the crowning glory of the corrupt and, as may be expected, this has left many legal practitioners and law courts tainted in an ugly way.
SPEECH of His Excellency, the President of the Federal Republic of Nigeria, Muhammadu Buhari, Special Guest of Honour at the opening ceremony of the 55th Annual General Conference of the Nigerian Bar Association holding at the International Conference Centre, Abuja on Sunday, August 23, 2015.
The twin problems of corruption and money laundering, and their ‘offspring’ – poverty – have more in common than one might expect at the outset. This link is best captured by the second and third preambular paragraphs of the United Nations Convention against Corruption: Concerned also about the links between corruption and other forms of crime, in particular organized crime and economic crime, including money laundering . . . Concerned further about cases of corruption that involve vast quantities of assets, which may constitute a substantial proportion of the resources of States, and that threaten the political stability and sustainable development of those States. (See Corruption and Human Rights Law in Africa, Oxford: Hart, 2014, p 92)
Thus, ‘corruption is a crime which relies significantly on the laundering process, which is essential for the corrupt to be able to enjoy the proceeds of crime’. It is estimated that Nigeria has lost over $400bn to large-scale corruption since independence in 1960.
According to Ndikumana and Boyce, more than half of the money borrowed by African states, including Nigeria, in recent decades was misdirected within a year, transferred in many cases to private accounts in offshore tax secrecy jurisdictions. Given the important issues that they raise and their sensible and important recommendations, the following passage deserves to be quoted in extenso:
Resource-starved African nations are subsidizing developed countries’ industries and social services [through the] exodus of human capital [and] the illicit export of financial capital from African countries – or capital flight. This is not a new phenomenon, and it shows no signs of abating. Over the past four decades, sub-Saharan Africa has lost a staggering $700 billion due to capital flight. In addition to trade mis-invoicing, smuggling, and embezzlement of revenues from natural resource exports, a substantial part of the capital flight was financed by external borrowing.
External borrowing
We estimate that every year 40 to 60 cents of each borrowed dollar spins out of the revolving door as capital flight, often returning to the same banks that issued the loans. On net basis, Africa is transferring more money to the rest of the world than it is receiving in terms of borrowing and aid . . . Capital flight, and the burden of servicing the debts that financed it, are partly to blame for the conditions that create the other economic problems faced by the continent … Illicit financial flows drain scarce public resources that could have been used to finance public services including education and health.
It partly explains why there are not enough schools, clinics, and medical equipment; it also explains the poor working conditions for doctors, teachers, and other professionals that force them to seek greener pastures abroad . . . Obviously African countries have the primary responsibility to devise and implement strategies to keep capital onshore. But the international community also has an equally important responsibility to root out the perverse incentives and opacity in the financial system that enable and perpetuate the financial haemorrhage faced by the continent. (Léonce Ndikumana and James K Boyce, Africa’s Odious Debts: How Foreign Loans and Capital Flight Bled a Continent (London: Zed Books, 2011).
A particularly useful ‘multi-dimensional meaning of poverty’ has been suggested by the UN Committee on Economic, Social and Cultural Rights. According to the Committee, poverty is ‘a human condition characterised by sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living, and we can add, indispensable to achieving the dignity and well-being of the human person and enjoyment of all human rights, insofar as human rights are universal, indivisible and interrelated.
(See General Comment No 8 ‘Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights: Poverty and the International Covenant on Economic, Social and Cultural Rights’, statement adopted by the Committee on Economic, Social and Cultural Rights on 4 May 2001, UN Doc E/C 12/2001/10, para 12)Corruption, especially large-scale, is both a cause and consequence of poverty.
The basis for this proposition may not be too far-fetched. On the one hand, corruption enriches a select few, while invariably subjecting many to poverty, especially the economically and socially vulnerable groups of society.
Clearly, the enrichment of the few at the expense of the many, especially in a continent of limited resources, can hardly help the cause of those who live in poverty. And, as noted, the theft and stashing abroad of public funds, where such funds are then invested to improve the economies of developed countries, is unfair as it undermines developing countries’ foreign investment, long-term growth, development and prosperity.
Thus, from a societal standpoint, corruption ultimately breeds poverty, weakens or destroys critical institutions of governance, erodes the operation of democracy, the rule of law and moral fabric of society, obstructs justice, and retards social and economic development.
From a government standpoint, it promotes impunity and arbitrariness, and encourages both money laundering and illicit money transfers (‘dirty money’). On this account, corruption violates human and people’s rights – civil, political, economic, social, and cultural – disproportionately affecting the economically and socially vulnerable.
Accordingly, the idea of corruption as a human right issue is intrinsically linked with the relationship between poverty, under-development and lack of respect for human rights. (See Corruption and Human Rights Law in Africa, Oxford: Hart, 2014, p 122-124).
Human rights as ‘trump cards’: Section 35 of the Constitution of Nigeria 1999 and article 6 of the African Charter on Human and Peoples’ Rights guarantee the right to personal liberty of every person living in Nigeria.
Source;Vanguard
By Femi Falana
INTRODUCTION: Whenever I was incarcerated by successive military regimes from 1985-1998, Amnesty International (AI) waged an effective campaign for my release. Through the activities of the AI and other progressive organisations I was able to regain my personal liberty without any conditionality. Notwithstanding that I was charged with many criminal offences including treasonable felony the AI declared me a prisoner of conscience.
In thanking the AI for its contribution to the defence of human rights and demilitarisation of the country I am compelled to point out that while human rights defenders and workers are no longer detained without trial, the most economically and socially disadvantaged are still subjected to illegal arrests, detention and other human rights violations and abuses.
With the establishment of an office in Abuja it is undoubtedly clear that AI has decided to be more effective in the defence and promotion of human rights in Nigeria. Through the campaign against the death penalty AI has saved the precious lives of many people. Through the campaign against illegal detention AI has secured the liberty of many prisoners of conscience and other detainees including those who were held in dehumanising conditions.
Through the campaign for fair trial AI has ensured that the right of many accused persons to fair hearing is respected. Through the campaign for freedom of speech and assembly AI has expanded the democratic space for many people who were otherwise excluded from political participation.
Through the campaign for the observance of freedom of thought and conscience AI has protected many victims of religious and political persecution. But AI has to do much more to promote universal respect for economic and social rights if the organisation is to contribute to the attainment of the principles of universality, indivisibility and interdependence of all human rights – civil, political, economic, social and cultural rights. No doubt, this approach requires the active collaboration of AI with the victims of corruption and exploitation and underdevelopment.
In this address, I shall speak on the lacuna in human rights discourse in view of the deliberate plan of the ruling class in the country to use the law and human rights to frustrate the prosecution of the looters of our commonwealth.
Looters of our commonwealth
In response to the role of lawyers who secure injunctions to prevent the arrest, investigation and prosecution of rich criminal suspects accused of corruption we shall link the recovery of our looted wealth to the duty of the government to provide for the welfare and security of all citizens. Our position will be anchored on the provisions of local and international human rights instruments.
Human rights, corruption and poverty: Chapter 4 of the Nigerian Constitution has made elaborate provisions for civil and political aspects of human rights. However, the fundamental objectives and directive principles of State Policy which provides for social, economic and cultural rights in chapter 2 of the Constitution are not justiciable.
But similar rights are incorporated in the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap A9) Laws of the Federation of Nigeria, 2004 are enforceable. Anyone whose fundamental rights has been violated in any state of the federation is entitled to seek redress in the appropriate High Court pursuant to Section 46 (1) of the Constitution and the Fundamental Rights Enforcement Procedure Rules, 2009. But in actuality human rights are enjoyed by a tiny minority of rich and powerful individuals who have the economic wherewithal to seek legal redress whenever such rights are violated.
I had argued elsewhere that “human rights are not and should not be the preserve of the rich and wealthy. It ought to be realized that without adequate food the rights to life and human dignity are meaningless to the marginalised and vulnerable segment of the population. Similarly, the right to housing has no relevance to people who are displaced and expelled from cities due to urban renewal projects carried out by governments.
Femi Falana
Kolawole Olaniyan in his celebrated book Corruption and Human Rights Law in Africa (Oxford: Hart, 2014) has developed a framework for complementarity between promoting and protecting human rights and combating corruption. He makes three major points regarding the relationship between corruption and human rights law.
First, corruption per se is a human rights violation, in so far as it interferes with the right of the people to dispose of their natural wealth and resources and thereby increases poverty and frustrates socio-economic development. Second, corruption leads to a multitude of human rights violations. Third, he argues that human rights mechanisms have the capacity to provide more effective remedies to victims of corruption than can other criminal and civil legal mechanisms.
He emphasised three major aspects of human rights in practice – the importance of governing structures in the implementation and enjoyment of human rights, the relationship between corruption, poverty and underdevelopment, and the threat that systemic poverty poses to the entire human rights edifice.
President Muhammadu Buhari talks of $150 billion stolen in the last 10 years. The criminals who stole the huge funds and western countries which are keeping the funds have violated the human right that Nigerians with respect to development.
If a large chunk of the stolen funds is retrieved and earmarked for socio-economic development, the government can create jobs, guarantee security and ensure infrastructural development.
As President Buhari puts it, “The fight against corruption is in reality a struggle for the restoration of law and order. Corruption and impunity become widespread when disrespect for law is allowed to thrive in society.
Disrespect for law also thrives when people get away with all sorts of shady deals and the court system is somehow unable to check them. Ability to manipulate and frustrate the legal system is the crowning glory of the corrupt and, as may be expected, this has left many legal practitioners and law courts tainted in an ugly way.
SPEECH of His Excellency, the President of the Federal Republic of Nigeria, Muhammadu Buhari, Special Guest of Honour at the opening ceremony of the 55th Annual General Conference of the Nigerian Bar Association holding at the International Conference Centre, Abuja on Sunday, August 23, 2015.
The twin problems of corruption and money laundering, and their ‘offspring’ – poverty – have more in common than one might expect at the outset. This link is best captured by the second and third preambular paragraphs of the United Nations Convention against Corruption: Concerned also about the links between corruption and other forms of crime, in particular organized crime and economic crime, including money laundering . . . Concerned further about cases of corruption that involve vast quantities of assets, which may constitute a substantial proportion of the resources of States, and that threaten the political stability and sustainable development of those States. (See Corruption and Human Rights Law in Africa, Oxford: Hart, 2014, p 92)
Thus, ‘corruption is a crime which relies significantly on the laundering process, which is essential for the corrupt to be able to enjoy the proceeds of crime’. It is estimated that Nigeria has lost over $400bn to large-scale corruption since independence in 1960.
According to Ndikumana and Boyce, more than half of the money borrowed by African states, including Nigeria, in recent decades was misdirected within a year, transferred in many cases to private accounts in offshore tax secrecy jurisdictions. Given the important issues that they raise and their sensible and important recommendations, the following passage deserves to be quoted in extenso:
Resource-starved African nations are subsidizing developed countries’ industries and social services [through the] exodus of human capital [and] the illicit export of financial capital from African countries – or capital flight. This is not a new phenomenon, and it shows no signs of abating. Over the past four decades, sub-Saharan Africa has lost a staggering $700 billion due to capital flight. In addition to trade mis-invoicing, smuggling, and embezzlement of revenues from natural resource exports, a substantial part of the capital flight was financed by external borrowing.
External borrowing
We estimate that every year 40 to 60 cents of each borrowed dollar spins out of the revolving door as capital flight, often returning to the same banks that issued the loans. On net basis, Africa is transferring more money to the rest of the world than it is receiving in terms of borrowing and aid . . . Capital flight, and the burden of servicing the debts that financed it, are partly to blame for the conditions that create the other economic problems faced by the continent … Illicit financial flows drain scarce public resources that could have been used to finance public services including education and health.
It partly explains why there are not enough schools, clinics, and medical equipment; it also explains the poor working conditions for doctors, teachers, and other professionals that force them to seek greener pastures abroad . . . Obviously African countries have the primary responsibility to devise and implement strategies to keep capital onshore. But the international community also has an equally important responsibility to root out the perverse incentives and opacity in the financial system that enable and perpetuate the financial haemorrhage faced by the continent. (Léonce Ndikumana and James K Boyce, Africa’s Odious Debts: How Foreign Loans and Capital Flight Bled a Continent (London: Zed Books, 2011).
A particularly useful ‘multi-dimensional meaning of poverty’ has been suggested by the UN Committee on Economic, Social and Cultural Rights. According to the Committee, poverty is ‘a human condition characterised by sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living, and we can add, indispensable to achieving the dignity and well-being of the human person and enjoyment of all human rights, insofar as human rights are universal, indivisible and interrelated.
(See General Comment No 8 ‘Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights: Poverty and the International Covenant on Economic, Social and Cultural Rights’, statement adopted by the Committee on Economic, Social and Cultural Rights on 4 May 2001, UN Doc E/C 12/2001/10, para 12)Corruption, especially large-scale, is both a cause and consequence of poverty.
The basis for this proposition may not be too far-fetched. On the one hand, corruption enriches a select few, while invariably subjecting many to poverty, especially the economically and socially vulnerable groups of society.
Clearly, the enrichment of the few at the expense of the many, especially in a continent of limited resources, can hardly help the cause of those who live in poverty. And, as noted, the theft and stashing abroad of public funds, where such funds are then invested to improve the economies of developed countries, is unfair as it undermines developing countries’ foreign investment, long-term growth, development and prosperity.
Thus, from a societal standpoint, corruption ultimately breeds poverty, weakens or destroys critical institutions of governance, erodes the operation of democracy, the rule of law and moral fabric of society, obstructs justice, and retards social and economic development.
From a government standpoint, it promotes impunity and arbitrariness, and encourages both money laundering and illicit money transfers (‘dirty money’). On this account, corruption violates human and people’s rights – civil, political, economic, social, and cultural – disproportionately affecting the economically and socially vulnerable.
Accordingly, the idea of corruption as a human right issue is intrinsically linked with the relationship between poverty, under-development and lack of respect for human rights. (See Corruption and Human Rights Law in Africa, Oxford: Hart, 2014, p 122-124).
Human rights as ‘trump cards’: Section 35 of the Constitution of Nigeria 1999 and article 6 of the African Charter on Human and Peoples’ Rights guarantee the right to personal liberty of every person living in Nigeria.
Source;Vanguard
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