Introduction
Several scholars have
singled out corruption as the bane of the Nigerian society. Indeed, owing to
this horrible menace, the country has lost billions of money that could have
been utilized for productive development, including: provision of adequate
health care, education, jobs, security, good roads, pipe-borne water, and other
basic infrastructures. Though, these developmental costs of corruption have
been analyzed, and have been the subject of numerous writings, the human rights
implications of graft are yet to generate similar fascination among scholars.
Often absent from mainstream corruption analysis are human rights concerns; in
particular, how corruption disproportionately affects the rights of the poor
and vulnerable. This paper explores the problem of corruption and the challenge
it poses to the protection of the fundamental human rights of vulnerable
persons in Nigeria.
The paper alludes to
the idea that stemming corruption requires a holistic and multi-dimensional
approach, where various groups in the society work in a concerted and
coordinated manner to combat the menace. However, it goes further to advance
that a human rights based-approach will enhance the protection of vulnerable
groups and individuals from double violation, while in the same vein, open up
leeway for multiple systems of accountability, transparency, participation and
effective oversight, all of which are important tools for a successful and
sustainable anti-corruption campaign.
This work
draws inspirations from research papers commissioned by the International
Council on Human Rights Policy (ICHRP), and other available literatures on the
discourse of corruption and Human rights. First, the paper briefly examines the
conceptual links between corruption and human rights, and highlights the
constitutional foundation of anticorruption regimes in Nigeria. Second, it examines the disproportionate
impact of corruption on rights of vulnerable people. Third, illustrates how
human rights principles and instruments can play a pivotal role in ensuring an effective
anti-corruption campaign. At the end, it shows that denouncing corruption is in
the individual and collective interest of all Nigerians.
1. What is Corruption?
There is no universally
acceptable definition of corruption. It is not simply an economic, political,
social or moral issue; it encompasses and diffuses across all of these lines. Heidenheimer
et al (1989), note that, in ancient time, political theorists such as Aristotle
regard corruption as being primarily a moral issue, where corruption was used
in the analysis of the structures and function of society to characterise situations
that were perceived to be “marked by decay of moral and political order.”[1]
Aristotle’s idea of a healthy political system involves proper administration
of justice, non-materialism in economic matters, diversity and unity, higher
guiding values of public interest over private values, and notions of
citizenship.[2]
Modern scholars like
Susan Rose-Ackerman points that corruption is not just an economic problem, it
also intertwine with politics, and that reform will require changes both in
constitutional structure and the underlying relationship of the market and the
state ( Rose-Ackerman; 1999). Friedrich in his own case viewed corruption as “a
disease of body politic”, a degeneration and disintegration of the political
system (Friedrich in Heidenheimer,
et al.; 1989).
Corruption as viewed here goes beyond simplistic issues of economic impropriety
by individual but captures a deeper malady in the society. Friedrich notes that
this broader historic notion of corruption has developed into the modern
understanding of corruption – the abuse of public power for private gain[3], a definition
now adopted by Transparency International. This paper adopts similar definition of
corruption as an abuse of public power, office or authority for private benefit
– through bribery, extortion, influence peddling, nepotism, fraud, speed money,
or embezzlement.
1b. Types
of Corruption
Corruption is generally
classified under three broad headings - grand corruption, petty/ bureaucratic
corruption, and state capture.
1. Grand Corruption: This
covers thefts, misappropriation or diversion of vast amount of public resources
by state officials-usually members of, or associated with, the political or
administrative elite. An example is the embezzlement and money laundering of
£1.8 million ($ 3.2 m) by Mr. Deprieye Alamieyeseigha, former governor of Bayelsa
State, Nigeria. This type of corruption suck dry public treasury, with little
or nothing left to meet basic needs of common people.
2. Petty
Corruption:
This involves corrupt acts of isolated transaction by individuals, especially
low-ranking public officials. Examples
of petty corruption include; slow movement of files in offices, police
extortion at checkpoints, kickbacks paid to public water supplier, and so on. This type of corruption increase
costs for obtaining certain services, while depriving citizens, unable to
afford the extra cost, of the benefit of enjoying such services.[4]
3. State
Capture:
The collision by private actors with public officials or politicians for their
mutual, private benefit is referred to as state capture. That is, private
groups “capture” state apparatus – legislative, executive and judiciary for its
own purposes,[5]
by controlling, manipulating and using state machineries as financial conduit
for personal enrichment.
1c. Nigeria’s Corruption Tale
The three forms of corruption (Grand, Petty, and State Capture) manifest
easily in Nigeria. To be precise, corruption assumes a normal pattern of life
in Nigeria, it is more or less a way of getting “everything” done; – getting
electoral positions, obtaining national passports, reconnecting broken
electricity supply, accessing water supply, obtaining a bed-space at public
hospitals, and so on. Indeed, corruption has penetrated and eroded hitherto
sacred aspects of the Nigerian society, such as judiciary, universities and
faith-based organizations. Transparency International has enlisted some of the
factors stated below as causes of corruption in Nigeria.
Endemic corruption in Nigeria is attributable to several
factors, such as:
·
Prolonged
military rule and the culture of impunity, which became institutionalised.
·
Absence of
commitment on the part of government to fight corruption evidenced by the
“sacred cow syndrome”, as well as failure to investigate and prosecute glaring
cases of corruption.
·
Weak
anti-corruption and watchdog agencies and other enforcement mechanisms
·
Inadequate
legal framework, with the absence of freedom of information and whistle
blowers’ legislation.
·
The role of
tribalism/ethnicity and religion in national politics. Ethnicity and religion
breed divisive tendencies, making it difficult to nurture true cohesion and to
build resistance against corruption within the polity.
·
Elastic
tolerance for corruption fostered by negative socio-cultural norms and
attitudes towards public property that were nourished under colonialism
·
Distortion
of the African principle of hospitality and exchange of gifts.
·
Poverty and
the dearth of basic public services, infrastructure and utilities, leading to
the denial of a platform for self-actualization due to the corrupt diversion of
the nation’s resources.
·
Mismanagement
of oil resources evidenced by the ostentatious life styles and flaunting of
wealth by the political elite and their apologists.
2. Foundations of Anti-corruption fight in
Nigeria
Although corruption is criminalized
in many countries of the world, the word itself is not unequivocally defined as
a crime in a strict legal sense; it is often linked with other criminal acts
involving the illegal abuse of power. Similarly, international conventions such
as the United Nations Convention Against Corruption (UNCAC) and the African
Union Convention on Preventing and Combating Corruption, do not define
corruption, but rather enumerate criminal acts which amount to corruption.
However, a strict meaning of corruption can be deduced from the Southern African Development Community
Protocol against Corruption (SADCPC),
which provides a broad legal
scope of corruption and criminalises it. In its Article 3, SADCPC, regards ‘corruption’
as any of the acts enumerated therein, including bribery or any other behaviour
in relation to persons entrusted with responsibilities in the public and
private sector which violates their duties as public officials, private
employees, independent agents or other relationships of that kind aimed at
obtaining undue advantage of any kind for themselves[6]
Nigeria’s anti-corruption
regime is influenced by various international documents including; UNCAC[7], AU
Convention on Preventing and Combating Corruption [8]
including the ECOWAS Protocol on the
Fight against Corruption[9]. All of these documents acknowledge that a
comprehensive and multidisciplinary approach is required to prevent and combat
corruption effectively. Specifically, the ECOWAS
Protocol, oblige State parties to adopt necessary legislative
measures to criminalise active and passive bribery in the public and private
sectors; illicit enrichment, false accounting, laundering of the proceeds of
corruption; as well as acts of aiding and abetting corrupt practices; and to
ensure the protection of victims. The Protocol further call upon State parties
to harmonize their national anti-corruption laws, to adopt preventive measures
against corruption and to introduce proportionate and dissuasive sanctions.
Nigeria’s establishment
of law enforcement bodies like the Independent Corrupt Practices Commission (ICPC)
and Economic Financial Crimes Commission (EFCC) are in consonance with recent international
processes. Prior to the creation of these two Commissions, the available
anti-corruption wand was the 1999 constitution. The constitution,
unfortunately, contains only a few anticorruption clauses, outlined under
sections E - powers and control over public funds, and nature of obligation of
Auditor-General’s office. Furthermore, sections 225 and 226 stipulate
transparency requirements in the financing of political parties.
The constitutive Act of
the ICPC, EFCC and other allied Acts[10] enacted
by the National Assembly of the Federal Republic of Nigeria, constitute till
date, the enabling laws available to combat corruption in the country. The EFCC
Act has been hailed a robust legislation covering a wide range of subjects such
as legislative measures to detect, investigate and prosecute graft. Almost all
financial and related crimes are subjected under its jurisdiction including;
advanced fee fraud, money laundering, counterfeiting, illegal transfer,
computer credit card fraud, contract scam, offences related to terrorism and so
on.
The anti-corruption
tradition in Nigeria, however, dates far back before the establishment of ICPC
and EFCC by the Obasanjo Administration (May 1999 – April 2007). Each
successive government since the late 1970s has had their own planned strategy
on how to eradicate corruption in Nigeria, though, a major issue brought to
question was their sincerity and unflinching commitment to the anti-corruption
war. The General Yakubu Gowon Administration made its own Anti-corruption Declaration
in October 1970 but it was marked with quantum failure. The Murtala Mohammed
regime, 29 July 1975 – February 1976, instituted investigations and enforced
disciplinary measures against erring public officers, this also did not achieve
much, even though some successes were recorded, in form of indicting corrupt
officials from the previous administration. Then the Jaji Declaration of 1977 by General
Olusegun Obasanjo which forbade government officials from riding any exotic car
other than Peugeot 504 brand. In 1982, Shehu Shagari flouted his own
anti-corruption campaign tagged Ethical Revolution, but this program, like the
rest did not withstand the test of time and sincerity.
The only significant
anti-corruption crusade, prior to the creation of EFCC, was the War Against
Indiscipline (WAI) launched by the Buhari / Idiagbon regime, 31 December 1983
–August 1985. The (WAI) program was a
progressive move to curb corruption and other manifestations of indiscipline in
Nigeria. Various tribunals both at the federal and state level were also set up
to probe political actors of the Second Republic. The campaign was deemed
successful, because Nigerians embraced the reforms introduced by the
government, some of which include; a queuing culture, environmental sanitation
and observance of traffic regulations. A negative outcome of the disciplinary
measure taken, was the fact that, it implementation was marked by series of
human rights abuses;[11]people
where flogged for jumping queues in petrol station or in banks, and decree 4
was enacted to punish journalists for writing things found to be offensive to
the government. The WAI program was short-lived; it faded almost immediately
after the departure of the duo from the helm of government.
With the advent of the Babangida
Administration, from 27 August 1985 – 26 August 1993, it was corruption galore
in Nigeria, as emphasis on sanctions and recovery of ill-gotten loot was
substantially reduced. The administration did not show any commitment to the
anti-corruption drive of its predecessors, rather it plunged the Nigerian
society into eight years of kleptocratic rule characterised by corrupt
practices of different shades.[12] The Abacha administration that took over from the interim National Government of Ernest Shonekon, followed the
pace set by the Babangida
Administration in looting government treasury. A total sum of N63.25billion was said to have been recovered from the Abacha family.[13] The ex-chairman of the
Economic Financial Crimes Commission, Mallam Nuhu Ribadu, averred that more
than $380billion has either been stolen or squandered by Nigerian governments
between 1960 and 1999, monies that could have been utilized for purpose driven
development. Despite all vitriolic darts hurled at EFCC by politicians and the
press, it would be fair to adduce that until its emergence in 2003, societal
tolerance for corruption in past years, especially under the Babangida regime,
was shamefully appalling. Indeed none of the previous efforts to stem
corruption can make bold of even scratching the surface of the deep-rooted
problem.
However, recent
anticorruption efforts in Nigeria are also fraught with many problems. One
major problem is that Nigeria’s anti-corruption crusade is largely enforcement
and prosecution based (i.e. detection, investigation and adjudication of cases),
with very little effort put into strengthening preventive strategies which has
the most value in protecting weak and vulnerable groups. More so, some of
measures taken to combat corruption where not always compatible with human rights
principles, and rarely was the mutual benefiting links between anti-corruption
and protection of human rights explored by Nigeria’s anti-corruption agencies.
Indeed, the nexus between
corruption and human rights is only just emerging in national and international
discourse. It is still an area of on-going research aimed at laying a
foundation for the construction of a corrupt-free society; society where
respect, protection and fulfilment of human rights are primary concerns of leaders
and followers alike. Before elaborating on the links between anti-corruption
and human rights, it is helpful to analyse what human rights are, its basic
principles and available mechanisms for their protection.
3. What are Human Rights?
Fundamental human rights are rights available to every person for the
simple reason of being human. Human rights have been regarded has inherent (applying
as result of person’s humanity), inalienable (i.e. cannot be taken away or
given away) and universal (applying to all persons regardless of race,
nationality, status, sex, religious, beliefs e.tc). These rights are spelt out
in what is regarded as the international bill of rights ; the Universal
Declaration of Human Rights (UDHR), the International Covenant of Civil and
Political Rights (ICCPR) and the International Covenant on Economic, Social,
and Cultural Rights ( ICESCR).
Rights outlined in the ICCPR include; right to life, right to
self-determination, right to freedom of association, right to freedom of
religion, right to freedom of information, right to freedom of movement, right
to vote, right to fair trial and so on. ICESCR contain rights in the
socio-economic sphere such as right to education, right to health, right to
just and favourable condition of work, right to food, right to shelter, right
to housing and others. Rights provided in ICCPR and ICESCR are binding on
member states and they are expected to respect, protect and fulfil the
provision of each covenant at the national level. Having these rights in two separate covenants
should not be interpreted as creating hierarchy of rights, nor does it imply a
rigid dichotomy amongst human rights. In practice, one set of human rights
cannot be meaningfully protected in isolation of the other. For example,
protection of civil and political rights usually feed into expanding prospects
for the realisation of economic and social right, and vice versa. The 1993
Vienna Declaration and Program of Action have reiterated the indivisibility,
interrelatedness and independence of all human rights. This is the approach
adopted in this paper.
Human
rights have acquired special position in the contemporary world because of the
increasing tendency of national governments to include these rights in their
respective constitutions as well as laws. Nigeria, a party[14]
to ICCPR and ICESCR, gave varying constitutional recognition to each category
of rights. Civil and political rights are expressly guaranteed under Chapter IV[15]
of the 1999 constitution, whereas, economic and social rights instead of
sharing same chapter with civil and political right, are to be found in chapter
II, under the rubric of fundamental objectives and directives principles of
state policy; meaning moral rules lacking enforceability.[16]
To
have right to a certain object (A), means someone else has a corresponding duty
to ensure the realization of (A). In other words, rights are claims person(s)
have on individuals, collectivities,
governments, and the design of social arrangements.[17] States are the primary duty bearer of human
rights, it is commonly understood that states have three levels of obligation
in relation to human rights: obligation to “respect”, “to protect” and “to
fulfil”.
The obligation to respect: requires
the state to refrain from any measure that may deprive individuals of the
enjoyment of their rights or their ability to satisfy those rights by their
efforts. This type of obligation is often associated with civil and political rights (e.g. refraining
from committing torture) but it also applies to economic, social and cultural
rights too. With regard to the right to adequate housing, for example, states
have a duty to refrain from arbitrary eviction.
The obligation to protect: requires the state to prevent
violations of human rights by third parties. This obligation is normally taken
to be a central function of States to prevent irreparable harm from being
inflicted upon members of society. This requires States: (a) to prevent
violations of rights by individuals or other non-state actors; (b) to avoid and
eliminate incentives to violate rights by third parties: and (c) to provide
legal remedies when violations have occurred, in order to prevent further
deprivation.
Obligation to fulfil: requires
States to take measures to ensure that people under its jurisdiction can
satisfy basic needs (as recognised in human rights instruments) that, they
cannot secure by their own efforts. Although this is the key state obligation
in relation to economic, social and cultural rights, the duty to fulfil also
arises in respect to civil and political rights. It is clear, for instance,
that enforcing the prohibition of torture (which requires police training and
preventive measures), or providing the rights to a fair trial (which requires
investment in courts and judges), to free and fair elections, and to legal
assistance, all require considerable costs and investments.
The trajectory of human
rights protection and fulfilment in Nigeria has been one of constant struggle
marked with trepidation and agony, especially under the military era. The
dictatorial period of military rule in Nigeria was marked with impunity for
human rights abuses. Activists and advocates of human rights were constantly
repressed and stampeded by various forms of incriminating decrees and punitive
measures. Rights such as freedom of information, freedom of expression and
trade union rights, which helps in sanitising and holding accountable systems
and institutions of governance were usually the first under attack. During the
military period, standing for justice and human rights was an extremely daring venture
which led to the loss of many lives. For example, the Ogoni leader, Ken Saro
Wiwa, and his colleagues met their untimely demise, because they tried to hold
the Abacha regime responsible for acts of corruption and human rights abuses
perpetuated against the oil producing communities in Ogoniland.
It is true that human
rights are violated daily for one reason or another, but more often than not, corruption
stands as an inhibiting factor in the matrix of the complex hurdle to protect
and fulfil human rights. Combating corruption may, therefore, translate into
creating enabling atmosphere for human rights to flourish.
4.
Impacts
of Corruption on Human Rights
It is commonly agreed,
“Corruption violates human rights”. Several documents signed under the auspices
of United Nations, and regional organisations have acknowledged the negative
effects of corruption on human rights,[18] some
international documents even considered corruption a “crime against humanity,” [19] while
the UN treaty bodies and special procedures have commented on the inability of states to comply with
human rights obligations because of corruption.[20] These
are broad statements and do not provide clear linkages between corruption and
human rights. In his attempt to clarify the links between corruption and human
rights, Julio Bacio-Terracino, drew up three categories. (I) Corruption as
protecting human rights, (II) Corruption as leading to human rights violation
and (III) corruption itself as a violation of human rights ( Baccio-Terracino,
2007).[21]
a) Corruption as protecting human rights: some
scholars have argued that petty corruption are need-based, often occurring as a
result of poverty. It was advanced that bribes demanded by police officers at
checkpoint, and other administrative kickbacks serve to pragmatically safeguard
fundamental human rights of underpaid officials. Though this view is unpopular,
the Warioba Report on corruption study in Africa acknowledged that in many
cases, those who ask for bribes do so because of their meagre incomes and low
standard of living.[22]
Examples are corrupt practices perpetrated by teachers who are underpaid or whose
salaries have not been paid for months. For these individuals, the small bribes
they receive serve to help make ends meet.[23] It is important to note that grand corruption
partly feeds into the upsurge of such incidences, where high-ranking public
officials embezzle money meant for their subordinates. A classical example is the Tafa Balogun Saga,
Nigeria’s ex-inspector General of Police who embezzled more than 70% of the
entire federal police salary.
b) Corruption leading to human rights violation: It is
necessary to distinguish corrupt practices that directly violate a particular
human right, from corrupt practices that lead to violation of a human right
(but do not themselves violate a right), from corrupt practices where a causal
link with a specific violation of rights cannot practically be established). Corruption
may directly or indirectly lead to a violation of human right, when the basic
tenets of human rights (such as the cardinal principle of equality and
non-discrimination) are not given proper expression in a given situation. For instance, in a country where access to
public education is supposedly free, demands for bribes by school Admission Committee,
before enrolling deserving students violates the right to education of those
students. In this case principle of non-discrimination and equality are flouted
for material gains. In other words, it is not the demand for bribe per say that
violate human rights but because such an act will potentially influence the
bribe taker to undermine principles of non-discrimination, equality, justice
and due process in awarding of admission. The aforementioned principles must
not be jeopardised on the altar of nepotism, favouritism, or material
inducement, in the event that such happens, then, there is a violation of human
rights. The table below illustrates a diagrammatic relationship between
corruption and violation of human rights violation.
|
Act of Corruption
( UNCAC)
|
Examples
|
Potential
Human Rights
Violation
|
Potential
Victim(s)
|
Party
responsible
|
Potential
Harm
|
|
Bribery
UNCAC
( Article 15)
|
Bribery of public official by a wealthy contractor to obtain a
licence for construction of road project without following proper bidding
procedures
|
Right to non-discrimination and equality
(Art 2(1) ICCPR)
|
Other eligible contractors
|
Public official and complicit contractor
|
Breakdown of due process, increasing “clientelism”.
|
|
Bribery
UNCAC
(Article 15)
|
Bribery of public official to allow the illegal importation and
dumping of toxic waste in an area planned for future residential use
|
Right to Life
(Art 6 ICCPR)
|
Citizens
|
Public official and foreign company
|
Exposure to radio-activity which is a known cause of cancer and
genetic defects
|
|
Bribery
UCAC
(Article 15)
|
Bribery of immigration officer to allow the trafficking and hostage
taking of young girls as sex workers
|
Right to freedom from slavery or servitude
( Art 8 ICCPR)
|
Girls held in hostage
|
Immigrations officer, traffickers, sex peddlers
|
Denial of liberty and dignity, exposure to sexually transmitted
diseases, and possible death
|
|
Embezzlement by Public official
UNCAC
( Article 17)
|
Embezzlement of funds destined for financing prison service
|
Right to dignified and humane treatment
(Art 10 ICCPR)
|
Prisoners
|
Prison administrator & his cohorts
|
Inhuman and undignified treatment due to lack of food or shortage of
basic resources
|
|
Bribery
UNCAC
( Article 15)
|
Police or military officers demanding bribe at checkpoint before
passing vehicles
|
Right to freedom of movement
( Art 12 ICCPR)
|
Populace
|
Police officers, traffic warders, military personnel
|
Traffic delays, sometimes physical abuse of persons refusing to pay
bribe
|
|
Bribery
UNCAC
( Article 15)
|
Plaintiff offering bribe to a judge to obtain favorable ruling in a
lawsuit
|
v Right to fair trial (Art 14
ICCPR)
v Right to non-discrimination (Art 2 ICCPR)
|
Defendant
|
Judges, court staffs
|
Unfair trial , denial of right to justice and effective remedy
|
|
Bribery
UNCAC (Article 15)
|
Private company offering bribe to
public official to take possession of
family land site or shelter of minority group, or urban slum dwellers
|
v Right to privacy, and family life
(Art 17 ICCPR)
v Right to adequate housing (Art 11 ICESCR)
v Rights of Indigenous peoples
( ILO 169)
|
Minority groups, urban slum dwellers
|
Public official, CEO of private company
|
Arbitrary eviction & Dispossession, denial of right to
adequate shelter, and denial of
enjoyment of family heritage
|
|
Bribery
UNCAC
( Article 15)
|
Public official demanding bribe before awarding state
registration cards to religious group
|
Freedom of religion
( Art 18 ICCPR)
|
Members of religious group
|
Public official
|
Potential threat to freedom of religion if followers are unable to
gather without state licence
|
|
Abuse of Functions
UNCAC
( Article 18)
|
Bribery of Journalists to cover up or misrepresent stories of fraud
committed by public officials
|
Right to freedom of expression and
Right to information
( Art 19 ICCPR)
|
Citizens
|
Journalist involved & Public officials
|
Deception of public and illegal control of right to information
|
|
Abuse of Function
UNCAC
( Article 18)
|
Bribery of Police by public officer to disrupt peaceful protest against fuel hike
|
Right to Peaceful Assembly
( Art 21 ICCPR)
|
Protesters
|
Police & Public official
|
Denial of the right to organize and express group opinion
|
|
Bribery in private sector
UNCAC
( Article 21)
|
Bribery of workers/ employees to withdraw from trade union
group
|
Right to Freedom of Association
(Art 22 ICCPR)
( Art 8(1)ICESCR)
|
Employees
|
Anti-unionists CEOs & complicit employees
|
Undermining the force and unity of trade unions
|
|
Trading in influence UNCAC
( Article 19)
|
Buying of voters and rigging of election by incumbent public office
holders
|
Right to participation
( Art 25 ICCPR)
|
Citizens
|
Political candidates & public officials
|
Denial of free and true participation in political & governance
process
|
|
Bribery
UNCAC
(Article 15)
|
Bribery of police officer to harass and beat up political dissents
|
Right to Equal protection of the law (Art 26 ICCPR)
|
Political dissents
|
High ranking public official, police officer
|
Denial of protection and
security offered under international law and national constitutional guarantees
|
|
Bribery of national public official
UNCAC
(Article 15 )
|
When multinationals bribe public officials to obtain multibillion
contract for the construction of oil grid on indigenous people’s land.
|
Right to self-determination
(Art 1 ICESCR)
|
Indigenous people
|
Multinational company, public official
|
Denial of right to freely determine, enjoy and utilize natural wealth. deprivation of owned subsistence
|
|
Bribery
UNCAC
( Article 15)
|
Demand for sexual favour by public official from female employees
|
Equal right of Men and Women
( Art 3 ICESCR)
|
Female employees
|
Public official,
|
Intimidation, harassment, including arbitrary dismal of unyielding
female workers.
|
|
Embezzlement in Private Sector
UNCAC
( Article 22)
|
Stealing of shareholders money and bankrupting of company
|
Right to work
(Art 6 ICESCR)
|
Employees
|
CEO of Company
|
Arbitrary dismal of workers, payment of insufficient salary to
workers.
|
|
Bribery
UNCAC
(Article 15)
|
Bribery of labour inspector by
an employer to prevent proper
enforcement of labour laws and guidelines
|
Right to favorable condition of work
( Art 7 ICESCR)
|
Employees
|
Employer, Labour inspector
|
Poor working condition, unreasonable working hours, low remuneration
e.t.c
|
|
Bribery
UNCAC
( Article 15)
|
Bribery of food safety agencies to obtain licence
without following standard food production guidelines
|
Right to Food
(Art 11 ICESCR)
|
Citizens
|
Public official, private business owner
|
Unsafe food supply, consumption of tainted or poisonous food.
|
|
Embezzlement
UNCAC
(Article 17)
|
Embezzlement of pension funds by government officials
|
Right to social security including social insurance (Article 9
ICESCR)
|
Pensioners
|
Public official
|
Insufficient funds for living, little or no funds to cover basic
expenses, denial of retirement benefits
|
|
Bribery
UNCAC
(Article 15)
|
Offering illegal payment to
water corporation authority to exceed water extraction permit
|
Right to water
(Art 11 & 12 ICESCR)
|
Neighbouring communities, citizens.
|
Public official, CEO of private company
|
shortage of water to neighbouring communities,
Water pollution
|
|
Misappropriation
UNCAC
( Article 17)
|
The illegal sale or diversion of HIV medicines from public hospitals
to private practice by doctors and health officers
|
v Right to Health (Art 12 ICESCR)
v Right to Non-discrimination(Art (2) 1 ICESCR)
|
Persons living with HIV/AIDS
|
Doctors, hospital officials & complicity officers in Ministry of health.
|
Reduction in drug availability, poor and discriminatory service by
health officials.
|
|
Bribery
UNCAC
(Article 15)
|
Request for bribe by lecturers before awarding university admission
or good grades to students
|
v Right to Education (Article 13 ICESCR
v Right to Non-discrimination
(Art (2)1
ICESCR)
|
Students
|
Lecturers
|
Discrimination based on monetary status. Jeopardy of value of merit,
substandard education.
|
|
Bribery
UNCAC (Article 15)
|
Illegal payment to a judges or orphanage owner to speed up or
manipulate the adoption of a child without following stipulated rules
|
v Best interest of child
( Article 3 CRC)
v Best interest of Child in Adoption
( Article 21
CRC)
|
Adopted child
|
Judges, foster parents, orphanage owners
|
Loss of family lineage, ethnic roots, and medical history
|
Acts
of Corruption and Violation of Human Rights (Diagram 1)
Acts
of Corruption and Violation of Human Rights (Diagram 1)
c) Corruption itself as a violation of human rights: States
party to human rights conventions have an obligation to respect, protect and fulfil
the provisions contained therein. They are under a legal duty to ensure that
rights of identifiable individuals or group of individuals under their
jurisdiction are not compromised. Leaders at the three-tier of government –
local, State and federal, are the custodian of commonwealth of the society and
ideally meant to disburse national resources for the greater good of all and
not for the few. Where public officials divert public fund towards private
ends, either by acts of commission or omission, they violate human rights, also
violate the right to a “corruption free society”[24] a
component of the right to economic self-determination and the right to
development of a people. [25] It may
be argued that right to corruption-free society originates and flows from right
of people to exercise permanent sovereignty over their national resources and wealth,
that is, their right to economic-self determination, recognised in common
article 1 of ICCPR and ICESCR ( Ndiva Kofele-Kale, 2000). Hence, a state[26] will be
in violation of these rights when it transfers, in a corrupt manner, the
ownership of national wealth to a select few, resulting in a situation where
people are denied individually and collectively their rights to use freely
exploit and dispose of their national wealth in a manner that advances their
development. Human rights can also be
violated through distortion of government expenditure; where large-scale
capital intensive projects which provide more opportunities for corrupt
behaviour, may be preferred and approved by corrupt public officials, rather
than labour intensive projects that provide work, or allow spending on essential public services ( e.g. health
care) that may benefit the poor. (Jayawickrama, 1998).
The quest
for a corrupt free society is link to the Declaration on the Right to
Development. The Declaration, which stated unequivocally that the right to
development is a human right, was adopted by the U.N in 1986 by an overwhelming
majority, with the United States casting the single dissenting vote. The
Declaration has four main propositions; 1. The right to development is a human
right; 2. The human right to development is a right to a particular process of
development in which all human right and fundamental freedoms can be carefully
realised; 3. The meaning of exercising these rights consistently with freedom
implies free, effective, and full participation of all the individuals
concerned in decision making and in the process of implementation which therefore
must be transparent; and individuals must have equal opportunity of access to resources
for development and receive a fair distribution of the benefits of development
( and income); and finally; 4. The right confers an unequivocal obligation on
duty-holders- individuals within the community, states at the national level,
and states at the international level. Other
states and international agencies have the obligation to cooperate with States
to facilitate the realisation of the process of development. “It is in this
context that the fundamental right to a corruption-free society adds a new and
necessary dimension to the right to development. No development process will
have any meaning and relevance if corruption as an institutionalised process
interferes with people’s struggles to realise their right to development.”[27]
It is
important to briefly mention that, while corruption is said to violate human
rights, anti-corruption strategies
employed in Nigeria, have also come under fire on account of similar charges. Law
enforcement agents have been guilty of using torture and other inhumane methods
to apprehend criminal, obtain confessions and conviction. Another form of abuse
is the naming and public shaming of suspect before obtaining legal convictions
in a court of competent jurisdiction, such acts, damages the public reputation
and right to personal integrity of person(s) involved.
Again, the politicization
of anti-corruption war and use of anti-corruption crusade as a weapon of suppression
by authoritative governments undermines public confidence in the campaign. “It is, therefore, pertinent to modify
anti-corruption techniques to be compatible with human rights standards, such
that, it will not be easily manipulated by ill-intentioned leaders, nor
function in ways that adversely affect the rights of those involved including;
perpetrators, witnesses, whistle-blowers and anti-corruption activists. Certain
provisions of the United Nations Convention against Corruption address the
question of fighting corruption while safeguarding human rights.”[28]
This paper does not examine such issues.
4b. Corruption and Vulnerable Groups in
Nigeria
Corruption
as a crime affects the generality of a society, but disproportionately affected
are vulnerable groups including; the poor, disabled, indigenous people, ethnic
minorities, AIDS victims, and women. Corruption
affects the rights of the vulnerable, palpably due to an inability to pay
bribes, but substantively through exacerbating inequalities and denial of
access to justice.
Corruption
has varying impact on different categories of disadvantaged groups, for
example, in the case of HIV/AIDS victims, many of those living with the disease
have testified to paying bribes to public health officer before securing access
to anti-retroviral medications. In the case of pregnant women, reports have
linked the rising toll of infant and maternal mortality in Nigeria to corruption
in the health sector. Exorbitant bribes charged by public health officers discourages
and prevents pregnant women from accessing necessary antenatal care at public
hospitals, rather it has led many to seek the assistance of traditional midwives,
even some case sought help from religious sister, who very often have little or
no knowledge about childbirth.
In
a country where corruption is a way of life, the poor and disadvantaged groups
are often exposed to double violation, as their vulnerability makes them easy
prey of corrupt individual and ready victim of systemic rot in public institutions. Bribes demanded from people in their bid to
access public services (in particular, health care, public housing, education,
or law enforcement), such bribes are generally heavier on the purses of the
poor, and sadly the latter have no recourse as they are unable to access the
judiciary for remedial purposes since the judiciary itself is fraught with
graft – from the lowest echelon of court clerk to the higher positions of
judges. If, institutions such as the
judiciary are corrupt, or not, in a position to adequately respond to
corruption, then the fundamental fabric of access to justice is undermined and
so is the fate of the common man in the hands of corrupt officials.
It
is unfortunate that, while grand corruption damages the quality of public
services which many poor depend on to provide for their basic needs, petty
corruption in similar ways, reduces the net income the poor has in meeting
those needs by themselves. Independent of its different guise, corruption,
clearly magnifies and exacerbates pre-existing human rights problems that
vulnerable people face. Since corruption reinforces values which human rights
seeks to reject (i.e discrimination, exclusion, inequality, and exploitation of
the weak), logically, a counter attack on corruption will be to reinvigorate
processes and strategies for protection of human rights.
5. Adopting Human Rights Based
Approach in Anti-Corruption
The fight against crime
in any country starts with the setting up of necessary legislative framework to
fight the crime. Given its nature and
clandestine mode of operation, even the most carefully crafted law may not be
sufficient to stem corruption,[29] Although,
good legislative mechanism may assist in the detection, investigation and the
prosecution of the crime, preventing and curbing it will, ultimately, require
more than law enforcement.
A human rights approach
redefines the problem of corruption and suggests new solutions; it insists that
the battle against corruption cannot be effective unless it includes people at
the heart of the anti-corruption battle, particularly, those who suffer the
most from its consequences. Institutional reforms only affect the opportunities
and alternatives that corrupt officials have, but human rights based approach
proposes generating reform “from below” by taking into account the
vulnerability and participation of ordinary citizen in anti-corruption war.
Rights-based
approach in anti-corruption brings to bare a combination of social empowerment
and social accountability strategies, where social empowerment means involving
necessary stakeholders, including civil-society groups and interested citizens
in national decision-making process and ensuring their meaningful participation
in the implementation and outcome of set programs and national plans. Under this framework, it is imperative to
involve civil society members in the design of budget and revenue allocation,
keep them informed of amount earmarked for various projects and allow them
carry-out independent audits of each program at the end of target period. Social
accountability on other hand, means the right to obtain justifications and
explanations for the use of public resources from those entrusted with their
management (whether government officials or private providers). Those
responsible for the safeguard and disbursement of public resources have an
obligation to explain and justify how their decisions and actions have
contributed to the progressive realisation of citizens rights, and to take
steps to correct ineffective use or abuse of resources. Social empowerment may
therefore be described as a preventive strategy to corruption, and its twin-sister;
social accountability,
is a compliance technique, which may involve public prosecution of defaulters.
The human
rights framework of social empowerment and social accountability, shares
similar motivation with key principles of anti-corruption; transparency,[30]
answerability[31]
and controllability[32],
and it adds to the traditional accountability structure offered by human rights
[33] -
such that victims, violators and remedy for corruption can be easily identified.
Reprimanding offenders and remedy for affected victim(s) is crucial in a human
rights framework, as punishment serves as deterrence and a crush on impunity,
while the remedial part upholds principle of reparation for violation of rights.
Under this framework, citizens are not
merely passive supporters of anti-corruption reforms but active watchdogs
holding public officials accountable and responsible for socio-economic
progress including; eradication of poverty and fulfilment of human rights. Ordinary
people, thus, have the duty of voicing no tolerance for corruption through
improved access to information and protection of political rights such as right
to freedom of expression, right to assembly and association, and so on. These
types of rights enhance participation efforts that are vital in combating
corruption.
There are
several benefits of adopting a rights-based approach in anticorruption; one
major benefit is that human rights instruments can also serve as additional
mechanism to fight corruption, especially when acts of corruption are connected
to violations of human rights. Indeed, corruption cases involving gross
violation of human rights by public officials may be challenged and prosecuted
using various human rights instruments. For example, the arbitrary eviction of
people from their homes due to discriminatory and corrupt re-allocation of low-cost
housing, from poor to the elite, violates the right to housing of the evictees (Article
11 of ICESCR). Hence, such as a case may be prosecuted through national,
regional or even international human rights complaint procedures.[34] Furthermore,
taking corruption cases before human rights supervisory bodies can give prominence
to those cases, and may also force a state to take preventive action, or may
deter corrupt officials from misusing their power.[35]
“Some corrupt practices that may not necessarily be illegal, and
thus cannot be made subject to standard law enforcement, could be addressed
using human rights forum. A corrupt practice that is not illegal may still
result in a human rights violation and this may permit additional forms of
action. For example, in many judicial systems nepotism or political favouritism
are not considered to be corrupt in strictly legal terms, and are not
prohibited by law. However, such practice may result in a violation of the
rights of political participation and right to equal access to public service.
In such cases, human rights education programs may provide a substantive path
for reform that a strictly legal approach may not offer.”[36]
Rights-based
approach in anti-corruption is not an entirely new idea. The success stories of
Botswana and Hong Kong are replete with human rights elements- of transparency,
participation, accountability, and independent and impartial judiciary.
Botswana, often cited in literatures, as one of Africa’s country which has
successfully suppressed the prevalence of corruption since the country’s
independence in 1966, achieved the feat through relative openness in economic
policy making, priority-setting and an
independent judiciary.[37] Hong Kong’s
anti-corruption success has been credited to Hong Kong’s Independent Commission
against Corruption (ICAC) and to a multiply of other factors such as a clean
government that guarantee political stability and sustained socio-economic
development; and government facilitation of community support and involvement
in the fight against corruption. If Nigeria must succeed in her anti-corruption
war, then, she must embrace the key elements listed above.
Among other issues, rights-based approach in anticorruption must
also take into account the following elements:
1. Access
to information is critical in combating corruption: Since corruption thrives on
secrecy, it is not surprising that it flourishes in countries where laws
granting access to information are weak or non-existent. For Nigeria to succeed
in her anti-corruption war, she must embrace laws and policies that reduce secrecy
in government and promote access to information and transparency, together with
proactive publication on government’s resources allocation, expenditure and
performance systems.
2. Judicial
independence should be promoted. The judiciary on its own part must work to
counter the culture of impunity by corrupt officials and must remain impartial
and fair in adjudication of corruption cases.
3. Anti-corruption
role models should be promoted: Anti-corruption agencies should work with
influential individuals, who can serve as role models of integrity and symbol
of moral forthrightness to promote positive image of national anti-corruption
programs.
4. Submission
of petitions from individuals and corporate bodies should be encouraged.
Citizens should be encouraged to report suspected or actual breaches of code of
conduct, bribery, embezzlement, and illicit enrichment to the appropriate
anti-corruption body.
5. Transparency
and accountability in political systems and institutions should be promoted. Litigation is a good starting point for
organisations that seeks to reduce the impact of corruption. For example,
successful lawsuit against corrupt public officials may bring compensation for
victims and establish legal precedence that can serve to deter other criminally
minded individuals.
6. Independence
of anti-corruption institutions is another important element. This may include,
giving considerable power to anti-corruption
agencies to examine bank accounts and business records, seize assets and/or
passports of culprits.
Conclusion
Corruption is a complex problem, and solving it requires multiple
of strategies. This paper does not propose human rights as the panacea to the
problem of corruption; rather what is advocated is that, for Nigeria’s
anti-corruption war to be effective, human rights principles must be
mainstreamed into the country’s anti-corruption program. Indeed, such a strategy
is likely to guarantee the protection of vulnerable groups from double
violation, while in the same vein, provide leeway for multiple
systems of accountability, transparency, and participation, all of which are
important tools for a successful and sustainable anti-corruption campaign.
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Convention on Preventing and Combating Corruption
Bacio Terracio Julio, Hard Law Connection between Corruption and
Human Rights, Geneva, 2007
http://www.ichrp.org/paper_files/Julio_Bacio_Terracino_2007.pdf
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Nations Conference on Anti-Corruption Measures; Good Governance and Human
Rights, Warsaw, 8-9 November 2006.
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Bougen, Philip D., "Organizational Crime, Auditors, and Liberal
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Dreher Axel
& Herzfeld . The Economic Cost of Corruption: A Survey and New Evidence.
Public Economics 0506001, EconWPA (2005)
http://129.3.20.41/eps/pe/papers/0506/0506001.pdf
Friedrich, C.J. (1990)
“Corruption Concepts in Historical
Perspective” In Heidenheimer et al. (1990: 15-24)
Gavison Ruth, On the relationship between Civil and
Political Rights, and Social and Economic Rights, in Jean-Marc Coicaud,
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Tobi, Bureaucratic Corruption, Good
Governance and Development: The Challenges and Prospects of Institution
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Gruenberg Christian, Identifying Possible Points of Entry for An Alliance between the
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Johnston, M.; and LeVine, V.T. (eds), Political Corruption: A Handbook.
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"The Right to a Corruption-Free Society as an Individual and Collective Human
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Kofele-Kale
Ndiva, “The Outing of Grand Corruption: A Decade of International Law- making to
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“Corruption and Human Rights: Promoting Transparency in Governance and the
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[1] Heidenheimer, Arnold J.; Michael Johnston, and Victor
T. LeVine (eds.). 1989. Political Corruption: A Handbook. (New
Brunswick, NJ: Transaction Press) pp 848
[2] Euben in Ball et al.., 1989 p 227
[3] Friedrich in Heidenheimer, Arnold J.; Michael Johnston, and Victor T. LeVine (eds.).
1989. Political Corruption: A Handbook. (New Brunswick, NJ: Transaction
Press) p 20
[4]Transparency
International Country Study Report, National Integrity systems Nigeria
2004 p 12
[5] Anwar Shah and Mark Schacter, Combating
Corruption : Look before you leap, Finance & Development Journal
December 2004
[6] Southern African Development Community Protocol Against Corruption ,
Article 1
[7] Nigeria is among the 27 African countries that has ratified UNCAC, however
the treaty is yet to be fully operative in national laws because for a treaty
to be operational the National Assembly have to “domesticate”such treaty or
convention ( section 12; 1999 Constitution). Intense advocacy by stakeholders is needed at this stage to bring the
particular convention to the front burner. Treaties and Conventions signed by
the country have been known to remain inactivated for up to ten years. http://www.u4.no/helpdesk/helpdesk/queries/query115.pdf
[8] Nigeria has signed but yet to ratify AU convention against corruption. Nigeria
signed the Convention on 16th of December 2003. http://www.transparency.org/news_room/in_focus/2006/au_convention#countries
[9] The ECOWAS
Protocol on the Fight against Corruption of the Economic Community of West
African States was adopted with the objective of strengthening effective
mechanisms to prevent, suppress and eradicate corruption in each of the States
parties through cooperation between the States parties. It was signed on 21
December 2001 and has not yet entered into force.
[10] Other allied
anti-corruption Acts includes; The Advance fee fraud and Other Related Offences
Act 1995, The failed Banks ( Recovery of Debts) and Financial Malpractices in
Banks Act, as amended; the Banks and Other Financial institutions Act 1991;The
Money Laundering Act 2004; 2003, the Criminal Procedure Act, the NDLEA Act and
the Custom and Exercise Act 1990 laws of the federation, The bank and other financial Institutions Act No 25 1991, The
code of conduct bureau and tribunal Act 1990; , Criminal Code Act Cap 77 Laws
of the Federation 1990, The Money Laundering Act 1995, National Drug Law
Enforcement Agency Act Cap 253 Laws of the Federation of Nigeria1990, The
Public Complaints Act Cap 377 Laws of the Federation 1990
[11] Transparency
International Country Study Report, National
integrity systems, Nigeria 2004 p 13
[12] The Okigbo
panel set up by the Abacha led administration to look into the Babangida
administration indicted General Babangida and the Governor of the Central Bank
of Nigeria (CBN) of frivolous and clandestine spending. See also Gbenga Lawal
& Ariyo Tobi, Bureaucratic
Corruption, Good Governance and Development: The Challenges and Prospects of
Institution Building in Nigeria, Journal of Applied Sciences Research, 2 (
10) : 642 – 649, 2006
[13] Tell Magazine Nov. 23 1998.
[14] Nigeria acceded to the International Covenant on Civil and Political
Rights on 29 July 1993, same day it acceded to the International Covenant on
Economic, Social and Cultural Rights.
United Nations, Treaty Series , vol. 993, p. 3 ;
depositary notification C.N.781.2001.TREATIES-6 of 5 October 2001 [Proposal of
correction to the original of the Covenant]
[15] Rights contained in Chapter IV of the 1999 Constitution are
justiciable, section 46 of the constitution provides that “any person who alleges that any of the provisions of this chapter (
IV) has been, is being or is likely to be contravened in any state in relation
to him may apply to a high court in the State for redress”.
[16] The 1999 constitution declared that rights contained in chapter two
are non-justiciable sections in 6(6) (c):
‘The judicial
powers vested in accordance with foregoing provisions shall not extend to any
issue or question as to whether any act or omission by any authority or person
or as to whether any law or any judicial decision is in conformity with the
Fundamental Objectives and Directive Principles of State Policy set out in
chapter II of this Constitution.
[17] Amartya Sen,
Economic Theory, Freedom and Human Rights, ODI Briefing, November 2001.
[18] See,
generally ICHRP project design on Corruption and Human Rights, see also UN
Convention against Corruption adopted by the General Assembly in its resolution
58/4 of 31 October 2003
[19] See, for example, the Seoul Findings, 11th
International Anti-Corruption Conference, Seoul, May 2003 and the Nairobi Declaration
adopted at the Regional Conference on the Human Rights Dimensions of
Corruption, convened by Kenya National Commission of Human Rights, 22 March
2006.
[20] “States face serious problems of corruption,
which have negative effects on the full exercise of rights covered by the
Covenant [ICESCR]” E/C.12/1/ADD.91 (CESCR, 2003, para. 12); or, by the
Committee on the Rights of the Child, which states that it “remains concerned
at the negative impact corruption may have on the allocation of already limited
resources to effectively improve the promotion and protection of children’s
rights, including their right to education and health” ,CRC/C/COG/CO/1 para 14.
See also statement of SR on Independence of Judges in E/CN.4/2006/52/Add.4 para
96.
[21] See Julio Bacio Terracio, Hard
Law Connection between Corruption and Human Rights, Geneva, 2007, http://www.ichrp.org/paper_files/Julio_Bacio_Terracino_2007.pdf
[22] In 1996, the former
Tanzanian President Benjamin Mkapa formed the “Presidential Commission of
Inquiry against Corruption (PCAC).” The Commission was chaired by former Prime
Minister, Joseph Warioba and was entrusted to carry out diagnostic studies on
corruption in the country. The findings of the Warioba Commission were
published in the “Report of the
Commission against Corruption Chaired by Hon. J. Warioba, State of Corruption
in the Country,” Dar es Salaam, December 1996, commonly known as “The
Warioba Report.” www1.worldbank.org/publicsector/anticorrupt/TanzaniaGCA.pdf
[23] Julio
Bacio Terracio, Hard Law Connection
between Corruption and Human Rights, Geneva, 2007
http://www.ichrp.org/paper_files/Julio_Bacio_Terracino_2007.pdf
[24] The right to
corruption-free society is yet to be recognized in any international human
rights convention, however there’s a growing consensus and sufficient state
practice to support a claim for an international customary law to prohibit
corruption in all societies.
[25] Ndiva Kofele-Kale, "The Right to a
Corruption-Free Society as an Individual and Collective Human Right: Elevating
Official Corruption to a Crime under International Law," 34 International
Lawyer 149 (2000).
[26] State, here,
refers to those having public authority, and by extension duty bearers of human
rights. Human rights obligations apply to all branches of the government (executive,
legislative and judicial) at all levels (national, regional and local).
According to human rights jurisprudence, an act (or omission) is attributable
to the state when committed, instigated, incited, encouraged or acquiesced in
by any public authority or any other person acting in an official capacity.
[27]
C Raj Kumar , The human rights to corruption-free service- some constitutional
and international perspective, volume 19 – issue 19, September 14 – 27, 2002,
India’s National Magazine http://www.flonnet.com/fl1919/19190780.htm
[28] Background note, United
Nations Conference on Anti-Corruption Measures, Good Governance and Human
Rights, Warsaw, 8-9 November 2006.
[29] Writing An Effective
Anticorruption Law: Prem Notes No. 58,
October 2001. http://www.worldbank.org/afr/findings/english/find203.pdf.-
[30] Transparency requires that decisions and actions are taken openly and
that sufficient information is available so that other agencies and the public
can assess whether the relevant procedures are followed, consonant with the
given mandate.
[31] Answerability means an obligation on the part of the decision-makers
to justify their decisions publicly to substantiate that they are reasonable,
rational and within their mandate.
[32] Controllability refers to mechanisms in place to sanction actions and
decisions that run counter to given mandates and procedures – often referred to
as a system of checks and balances or enforcement mechanisms. The checks may
take many forms, including shaming and praise. Impunity is the antonym of
accountability and apportioning blame for harm done is an important component
of accountability. Democratic accountability, therefore, refers to the idea
that people entrusted with political power have a duty of accountability to
their electorate - both directly through elections and indirectly through
institutional controls.
[33] States and other
duty-bearer are answerable for the observance of human rights. Though human
rights law does not refer directly to accountability, it is nonetheless a
fundamental feature of the entire human rights corpus. The idea of
accountability is clearly implied in the framework of entitlements (rights) and
duties. Human rights do not simply seek to meet the needs of people, but also
recognizes people as active subjects and claim-holders, thus establishing the
duties and obligation of those whom a claim can be brought to ensure that needs
are met. When States sign or ratify human rights treaty, they prima facie accept the responsibility to
protect, fulfil, and promote human right. When they fail, by either omission or
commission in the performance of such duty, they can thus be held accountable
by the right-holders whose rights have been violated. Various mechanisms of
redress that exist at national and international level go further to strengthen
the idea of accountability for rights violations.
[34] Complaints
procedure: Several international conventions have created the opportunity for
individuals or group of individuals to bring a complaint to an international
monitoring body alleging a violation of human rights. The procedure can be
brought to a body of experts for quasi-judicial adjudication or to an
international Court (i.e. the European Court, Inter-American Court or African
Court on Human and Peoples’ Rights) with the power to give a binding decision.
It should be added that, although the above mechanisms have the potential to
assist victims of corruption, both by providing redress and drawing attention to
abuses, they have been poorly utilized.
[35] Magdalena
Sepulveda Carmona, Draft Report on Corruption and Human Rights: Conceptual
Paper, Geneva, 2008, www.ichrp.org
[36] Id
[37] Henry
Kyambalesa, Corruption – Causes, Effects, and Deterrent, Africa
Institute of South Africa Africa Insight
Vol
36 No 2 – June 2006 119