Grand corruption and its effects on governance

Grand corruption is a serious issue throughout the world which has led to the development of many different laws. The United Nations defines grand corruption as "corruption that pervades the highest levels of a national Government, leading to a broad erosion of confidence in good governance, the rule of law and economic stability ("United Nations Convention against Corruption")." Grand corruption is such a concerning issue because of the costs associated with this deceptive activity. Eliminating grand corruption has become a major quest of NGOs such as the UN. According to an article entitled "The Global Programme against Corruption" published by the UN, efforts to raise awareness about corruption have been made since 1994. The report explains that corruption has an insidious nature and can have devastating impacts on entire countries and their citizens. The report asserts that "Corruption not only distorts economic decision-making, it also deters investment, undermines competitiveness and, ultimately, weakens economic growth. Indeed, there is evidence that the social, legal, political and economic aspects of development are all linked, and that corruption in any one sector impedes development in them all ("The Global Programme against Corruption")."

The report also explains that both the public and private sector have begun to recognize the serious problems that arise as a result of corruption ("The Global Programme against Corruption"). The consequences of corruption include the inability to govern effectively and adverse effects on economic stability and growth. As such, there must be national and international legislation and policies designed to decrease the amount of corruption that occurs. In many nations throughout the world legislation addressing such corruption appears to be in their early development. Additionally, accurate evaluations about the type and extent of domestic and transnational corruption are difficult to acquire ("The Global Programme against Corruption").

The purpose of this discussion is to determine and evaluate the role of the United Nations, governments and other organizations in combating the problem of grand corruption throughout the world. More specifically, the investigation will focus on United Nations convention Against Corruption (UNAC).The research will also focus on the role of the African Charter, international courts and the World Bank play in curbing corruption. The research will illustrate why grand corruption is so detrimental to nations around the world.

How adequate is the United Nations convention against corruption equipped to provide effective punishment for grand corruption?

The United Nations has attempted to decrease the level of grand corruption throughout the world using several different tactics. This tactics include the development of a code of conduct, the creation of specialized anti-corruption agencies, and the strengthening of governments and judicial institutions throughout the world. In addition the United Nations convention Against Corruption (UNAC) was developed in 2000 with resolution 55/61. The reason for the development of this convention came when the General Assembly recognized the need for "an effective international legal instrument against corruption, independent of the United Nations Convention against Transnational Organized Crime…decided to establish an ad hoc committee for the negotiation of such an instrument in Vienna at the headquarters of the United Nations Office on Drugs and Crime ("United Nations Convention against Corruption")."

However, there is still a great deal of corruption throughout the world. As such questions as to whether the policies of the UN are adequate and provide effective punishment are difficult to answer. On the one hand there has been some progress made in certain countries and as it relates to certain types of corruption.

On the other hand the amount of grand corruption in other countries or regions of the world have increased. The primary difficulty associated with convention involves the way that it was drafted and the ability of the UN to enforce certain standards that the convention was intended to address. Argandona (2007) explains that the convention is a rather limited instrument as a result of the way it was drafted because it gives priority to both economic and political interests as opposed to human interests. One of the most problematic aspects of the way that the convention was drafted is that it does not obligate the signatory countries to make certain actions punishable by law. For instance acts such as trading in influence, bribery of a foreign official, illicit enrichment or abuse of public functions are not criminal activities in many of the signatory countries.

There are a number of provisions contain vague language such as "shall consider adopting, and may adopt as it pertains to certain codes of conduct. In addition many of the articles contained in the convention consists of safeguard clauses which further reduce the obligations of the states parties if any conflict arises between the state's constitution and the ability of that state to enforce certain laws related to grand corruption. As such the development of uniform standards to address the issue of grand corruption cannot always be met because they are sometimes in conflict with the constitution of some signatory states.

Argandona (2007) asserts that the lack of obligation regarding acts such as bribery is of particular concern because there is often a blur in the lines between the private and public sector in many of the signatory countries. More specifically as it pertains to outsourcing and globalization. When countries do not have laws or enforcement strategies to deal with these activities corruption in the private sector often becomes prevalent and such corruption makes it difficult to control corruption in the public sector. In addition the convention does not make it obligatory for corruption within a political party to be punishable by law or a criminal act. The author points out that the whole issue of political corruption is handled in a vague manner throughout the convention. This is in spite of the fact that this type of corruption is amongst the most common and most detrimental.

Argandona (2007) does point out that the conventions failure to lay out a clear standard against political corruption is due, in part, to the various ways that political campaigns are run in different countries. Instead "The criminalization of bribery of officials of public international organizations and other related issues was left for discussion by the Conference of the States Parties to the Convention, to be held after the Convention comes into force ()."

Argandona (2007) also asserts that some of the articles of the convention are so unclear that they can be interpreted in many different ways and in some cases this creates a difficult scenario for multinational corporations that operate in different regions of the world. The articles of the convention are also problematic because there are no mechanisms in place to penalize States Parties that fail to meet their obligations under the Convention. This results in the dilemma of implementation and enforcement. Such difficulties arise because of the absence of monitoring and surveillance mechanisms that are inclusive of representatives of civil society and companies (Argandona, 2007). The author contends that such mechanisms are absolutely essential to guaranteeing that the convention is successful.

The primary rationale for the use of monitoring mechanisms is to persuade governments to recognize the principles of the Convention and then implement the Convention (Argandona, 2007). This is an essential step because of the various political, social, economic, and technical issues that come with the implementation of the convention. These issues include the passing of new laws; the struggle with those who stand to lose from changes in the law and staffing and funding of the agencies that will be responsible for enforcing the new provisions (Argandona, 2007). The experiences of other initiatives already under way have been encouraging (Argandona, 2007). As such, the delay in implementing monitoring mechanisms indicates a lack of political will and an unwillingness to fight against corruption (Argandona, 2007).

The monitoring process is essential because it presents the government of a country with external accountability through inspections, reports and discussion sessions (Argandona, 2007). In addition the monotring process is essential for the development of a round-table for governments and pressure groups and permits civil society and the private sector to partake in these tasks (Argandona, 2007; Heimann, 2005a, b). There are other possible advantages in the short-term, including an enhancement in the value of legislative and institutional change, greater involvement by civil society such as companies, and non-governmental organizations in the battle to eliminate corruption. Other advantages include the documenting of good practices and experiences from nations around the world in addition to the assemblage of a body of case law to assist in the reliable interpretation of the Convention. The author also explain that

"Given the diversity of the parties to the Convention and the attitude of some of them during the negotiations, who argued that the monitoring processes violated their sovereignty, it was particularly difficult to agree on an effective monitoring procedure that was acceptable to all. The task of supervision and monitoring will be carried out, in principle, through the Conference of States Parties to the Convention. The Conference will be held for the first time "not later than one year following the entry into force of the Convention" (art. 63, 2). One of its tasks will be to "review periodically the implementation of this Convention by its States Parties" (Argandona, 2007)."

The monitoring process is a long-term program that must be modified to meet the needs of changing situations and the learning processes of the parties (Argandona, 2007). This process must possess an elevated rate of State Party cooperation along with a competent, appropriately resourced Secretariat (Argandona, 2007). It is essential to encourage the compilation and publication of data concerning anti-corruption efforts in various nations (Argandona, 2007). This information is needed to promote transparency during different stages of the process (Argandona, 2007). Additionally sensible restrictions must be established concerning what can be achieved (Argandona, 2007). The States Parties must create political support for the process and take advantage of the synergies available through other monitoring instruments (Argandona, 2007).

Overall it appears that while the intention of convention was noble, in many cases the convention is not very effective in curbing the problem of Grand corruption. This is due to the way in which the convention was drafted and the many different types of government that are part of the convention. The issues laid out in the convention that are seen as detrimental to one nation may be viewed as completely acceptable in another nation. With these things understood it is difficult to not only develop uniform standards against grand corruption but also difficult to enforce any standard.

What grounds ( for and against) can there be to qualify grand corruption as a crime against humanity?

There have been many different assertions concerning certain forms of grand corruption being classified as a crime against humanity. Those who argue that grand corruption should be classified as a crime against humanity. For instance Starr (2007) explains that grand governmental corruption involving the large-scale depletion of treasuries by heads of state should be considered a crime against humanity. The author explains the grounds for this can be attributed to the fact that grand governmental corruption.

"has catastrophic consequences that are foreseeable to the perpetrators: extreme poverty and decimated government services, resulting in widespread deaths from food-borne diseases, water-borne diseases, and HIV / AIDS. International criminal tribunals could con-tribute meaningfully to the fight against kleptocracy. They have considerable powers to trace, freeze, and seize stolen funds, and can exercise jurisdiction where other domestic or international remedies are unavailable. They might also have a norm-shaping and/or deterrent effect (Starr 2007,4)."

With these things understood Starr (2007) and other authors believe that this particular types of grand corruption is worthy of being called a crime against humanity and officials who commit these crimes should be punished accordingly.

However the United Nations and the international tribunals supported by the organization have made it a rarity to target this kleptocracy. Starr (2007) explains that such an omission is a travesty and prevents the international justice system from fully protecting the citizens of countries where such corruption occurs. The author also explains that there is a robust legal argument for treating grand corruption as a crime against humanity that would not require the implementation of new treaties. Also in some situations when the consequences are severe and expected, grand corruption could also be placed in the category of "other inhumane acts,." This has been the case under customary international law and was also an aspect of the Rome Statute. With these things understood there are some very real problems associated with this approach because the relevant doctrines were created with crisis contexts in mind. The author further explains

"International criminal tribunals, and particularly the nascent ICC, face serious political obstacles to their effectiveness. They cannot cavalierly add new categories of crimes to their agendas. Instead, they must carefully consider the consequences of their actions for their legitimacy and for states' willingness to cooperate with them. With this in mind, I conclude that crisis-centered strategies in the near-term might help to catalyze inter-national acceptance of new legal principles that could then be applied in other contexts. This has happened historically, for example, with the development of modern international human rights law, which emerged largely in response to World War II and the Holocaust but now systematically regulates the peacetime relationship of governments to their citizens. International criminal law could undergo a similar transformation. If so, its exclusive focus on war and mass atrocity might amount to a transitional stage in this young and evolving field. (Starr, 2007, 4-5)."

The question of whether or not some cases of grand corruption will be labeled crimes against humanity is yet to be seen. The lack of specificity that esits within the UN about so many aspects of corruption have long been an impediment to stopping the corruption and this issue is no exception. The need for tougher laws concerning grand corruption at the hands of government is definitely an issue that needs to be addressed by organizations that seek to end corruption and promote peace and health in various countries throughout the world. The need to severely punish people that commit such crimes is of particular importance in developing countries which often struggle with factors such as education healthcare and poverty. As Starr (2007) pointed out, when government officials raid treasuries and use the money to finance their lavish lifestyles, the citizens of the country suffer greatly. In many cases such suffering can lead to death and generational poverty. As it relates to this type of corruption leading to death, much of the money taken by corrupt officials could be use in more productive ways to finance hospitals and purchase medication for the sick. In many countries HIV / AIDS rates are at an all time high as government officials squander money that could be used to purchase medicine that could prolong the lives of many people. Additionally the money that is stolen could be used to improve or create schools for children. Education is vitally important within in any context and in developing countries it is of particular importance because it can dictate just how quickly the country can develop and whether or not the people of the country will have control over such development. When people are uneducated, they often after rely on others to manage the development. Education increases the likelihood that a country can control its own destiny and end the cycle of poverty. With these things understand there are substantial grounds to qualify grand corruption as a crime against humanity in some instances.

Making such a designation would also serve as a deterrent for other government leaders who may be tempted to act in ways that are destructive and harmful to their countries and the people that they have been entrusted to serve. In many cases government officials commit act of grand corruption because they know that there will be no consequences or the consequences will not be very severe. If grand corruption was treated as a crime against humanity it is possible that some leaders will be less likely to engage in corruption. Declaring certain types of grand corruption as a crime against humanity would also be beneficial in setting a standard for what types of behaviors are unacceptable. In addition it would establish a form f international accountability that is not currently present.

In the case of developing nations in Africa, how effective is the African Charter against corruption in curbing grand corruption?, and why is corruption so persistent?

The African Charter on Human and People's Rights was first developed in 1981 and put into effect in 1986. The charter was designed to unify the African nations that were a part of the charter and to clearly define human rights standards while also making a commitment to enforcing the established standards ("African Charter on Human and People's Rights"). In addition the charter establishes the African Commission which is designed to carry-out the following duties based on Chapter II and Article 45 of the African Charter on Human and People's Rights. This aspect of the charter explains that the functions of the commission will be to encourage human and peoples' rights through the collection of documents, the conducting of studies concerning the African problems as it relates to human and peoples' rights ("African Charter on Human and People's Rights"). The commission was also created to develop seminars and conferences, promote cooperation between national and local institution and disseminating information associated with the promotion of human and peoples' rights ("African Charter on Human and People's Rights"). The commission is also expected to make recommendations and, should the case arise, give its views or make recommendations to Governments. The purpose of the commission is also to create and implement principles and rules associated with resolving legal problems associated with human rights and freedoms upon which African Governments base their legislation ("African Charter on Human and People's Rights"). The commission pledges to cooperate with international institutions and African nations to encourage and enforce the protection of human rights ("African Charter on Human and People's Rights").

The commission is also responsible for guaranteeing the protection of human and peoples' rights under conditions established by the present Charter ("African Charter on Human and People's Rights"). The commission must correctly interpret each of the provisions set forth by the current charter when requested by a state arty, the OAU or any African organization that is accepted by the OAU ("African Charter on Human and People's Rights"). The commission should also be ready to perform any other tasks delegated to it by the Assembly of Heads of State and Government ("African Charter on Human and People's Rights").

The African Charter has not been terribly effective in curbing grand corruption. In some countries the charter is more effective than others because it has the support the government. In places where government support for the charter is not present, the charter has a difficult time getting the access and the cooperation needed to hold corrupt officials accountable for their actions.

Fraser-Moleketi (2007) argues that corruption in Africa cannot be defined without an investigation of the historical context. The authors assert that

"Corruption has been manifest in all historical epochs. As we reflect on the root causes of corruption in the contemporary era, we can trace it back to the era of colonialism, but -- equally important -- we can acknowledge systemic corruption in the Cold War era. In an effort to fight the Cold War through proxy nations in the South, the global superpowers overthrew many democratically elected regimes in Africa, Asia and Latin America and often replaced them with malleable regimes. We are now dealing with the legacy of the Cold War. At the same time, this legacy has created an environment for the forces of globalization, which are supranational in character, to once again exploit the vulnerabilities of nation states (Fraser-Moleketi 2007, 239-240)."

The reason why corruption exists in certain nations in Africa is also related to the manner in which private industry has raped and exploited the continent. Africa has some of most precious resources in the world including gold, diamond and oil. However, many large corporations such as oil companies have come into the continent and completely devastated the environment. There have been numerous oil spills that have not been capped or cleaned up. Because the environment us polluted, some workers such as fishermen can no longer make a living doing what their families have done for generations. This leads to the development of militias and gangs who attempt to exact revenge on iol workers who are often foreigners.

In addition to the corruption that occurs at the hands of private industry, some of the most notorious problems occur in the public sector amongst government officials. For instance Vlasic & Noell (2010) reports that in Equatorial Guinea which is one of the wealthiest nation's in the world as a result of substantial hydrocarbon deposits in addition to undeveloped natural resources. Although there is a great deal of wealth in the country the people of the country live in poverty. Vlasic & Noell (2010) also explains that the nation is one of the most unstable as it relates to governmental leadership. There is wide-spread corruption in the country and the executive branch is infamous for permitting unlawful land expropriations to benefit a small number of people including individual who are close to President Obiang (Vlasic & Noell 2010). Although this corruption is widespread there have been recent attempts by the Open Society Justice Initiative to combat corruption in the nation through a human rights mechanism -- the African Commission on Human and Peoples' Rights. In fact the APDHE brought a case against Equatorial Guinea involving corruption. The complaint alleges that the government is plundering of national oil revenues is in conflict with the right of nation's citizens to freely manage their natural wealth (Vlasic & Noell 2010). This is a right protected by the African Charter (Vlasic & Noell 2010). The authors explain that this case marks the beginning of getting justice for citizens wronged by kleptocracy. Through the accountability and repatriation via a human rights vehicle, victims now have a voice, which can potentially alter public awareness of anticorruption efforts and improve the measures now in place. The authors further explain that

"with every few steps forward, it is not uncommon for an occasional step back. Asset recovery progress is certainly no exception. This was most recently seen last year with the dismissal of a complaint that alleged several African heads of state and their families' had acquired property in France with misappropriated public funds. Regrettably, the French Court of Appeal ruled that Transparency-International (France), an anticorruption NGO, could not bring a complaint against foreign heads of state. The court's decision represents a significant setback for organizations with respect to how they file complaints. It also reveals a recurring weakness present in asset recovery efforts, not only in France, but globally. This weakness, as stated above, is that state parties to the UNCAC are failing to adequately implement UNCAC into their national legislation. This serves as an important reminder of the work that still lies ahead (Vlasic & Noell 2010)."

Can the international criminal court be an alternative vehicle to investigate and prosecute high level grand corruption involving political leadership where local/criminal jurisdictions have been compromised?

International criminal courts can serve as an alternative vehicle through which grand corruption can be confronted. However, this is problematic because of the sovereignty that states have. Some nations are protective of their citizens and public officials and they are also distrusting of international criminal courts. As such some people involved in grand corruption can escape being taken to an international criminal court. In short the ability of an international criminal court function effectively is highly dependent upon the extent to which the nations throughout the world cooperate with international criminal court. In many instances people who have violated international laws and should have been sent to an international tribunal were not held accountable for their actions because government chose to harbor these individuals. This is the same problem that would exist with international criminal courts. There is no way to ensure that people who ignore the established rules and standards will have to answer to such a court.

As it pertains to the investigation of high level grand corruption involving political leadership, such courts could be very effective. This is true if and only iff the international community cooperates in a ways that allows for the free flow of information. At the current time certain countries do have good communication and often warn one another of impeding threats. However, there are strained relationships between other countries and these countries do not communicated with one another. An international criminal court could act as a neutral mediator between these countries to ensure that important investigations can take place.

While it is possible for the international criminal court to serve as an alternative vehicle to investigate and prosecute high level grand corruption involving political leadership where local/criminal jurisdictions have been compromised, the prosecution of such crimes by such a court seems problematic. The difficulty lies in the fact that certain countries will harbor people who are viewed as corrupt, making prosecution of these individuals difficult. On the other hand, international criminal courts may be more successful at investigating crimes because it can serve as a mediator between countries that have difficulty communicating with one another. Overall while international criminal courts appear to be a good alternative, the ability of such courts to function is difficult to determine given the diverse nature of all of the countries involved in attempting to curb grand corruption.

What are some of the development aid agencies and donor concerns regarding persistent grand corruption in developing countries?

One of the primary concerns of development aid agencies and donors is that grand corruption impeded progress in developing countries. The impeding of progress is manifested through a decrease in the number of industries that are interested in investing in the country. Without investment in general and foreign direct investment in particular, it is extremely difficult for the economy of a developing country to thrive.

In addition to grand corruption interfering with economic progress, it also decreases the ability of developing countries to have political stability. Political stability is necessary for the creation of a society where people prosper. Without political stability, education, healthcare and the overall well-being of the society will be compromised,

Aid agencies and donor agencies are also fearful that aid money in the world hands can be used to purchase weapons, fund wars or otherwise support schemes that are detrimental to the nation and counterproductive. Donor organizations are also concerns that funds are not being used in ways that promote sustainable growth and development. In many cases aid does nothing more than satisfy immediate needs. This is problematic because it often leads to dependency on the aid organization which is not feasible over long periods of time. With these things understood aid and donor organizations want to see an increase in the amount of accountability. Accountability is important because it decreases the likelihood that funds can or will be misappropriated.