The Question of Immunity and Economic Sabotage--A Test Case
By Amos Ziah Koukou
With the election of Ellen Johnson-Sirleaf and the
high profile international attention she has been receiving,
it was anticipated that much would be expected of her
Government, particularly in the areas of transparency,
accountability, and good governance. This means then
that serious measures in the area of fighting corruption
would have to be the hall mark. It was no accident therefore
that President Johnson-Sirleaf declared corruption “public
enemy number one” during her inauguration. Political
skeptics like me knew it was easy rhetorically to vow
to fight corruption since in fact this was the tone
most of us wanted to dance to. But if many Liberians
expected a fanfare in legally fighting corruption, they
must have been residents of the red planet (MARS). Now
that the government has let the cat out of the hat by
attempting to prosecute Bryant, the legal and political
debate is now about to begin with Bryant clinging onto
With the kind of corrupt activities that permeated the government during Mr. Bryant’s rule, it was no surprise when the current Liberian Government charged him (Bryant).
I am attempting here to trace the root of the question
of constitutional immunity and point out precedents
and few notable case studies in Africa, Latin America,
and Europe as a way of enlightening the new breed of
Liberian intellectuals and emerging politicians so that
they approach the debate with informed objectivity.
Constitutional Clause and Corruption
The issue of immunity is not a new phenomenon in countries around the world. With this in mind, Professor Oladele Abiodun Balogun of the Olabisi Onabanjo University, Nigeria, concerned about evoking immunity by leaders when they are brought to book to account for their actions while in power argues that, “the debate on the repeal, retention or review of the immunity clause, has become so topical both at the level of domestic and international law in recent times. These highly contentious issues over the ‘immunity clause’ have become very germane especially in the light of contemporary trends of politics in Africa. To a close observer of this trend, ‘the immunity clause’ which is found in many constitutions of African states, is gaining an alarming proportion of abuse in recent times that the very concept of constitutional democracy and governance in Africa needs a critical redefinition”. I believe Professor Balogun has a solid point here because in some instance with glaring evidence of theft, shamelessly, some of those leaders evoke immunity after all it is enshrined in their constitutions. Why not use it to their advantage even at the detriment of the nation?
Information gathered about the Liberian case and many
other cases point largely at times to officials using
public offices to acquire personal wealth, and commit
wrong doing under the protection of immunity.
Miren Gutierrez, writing in the London Daily Mail, argues that Liberia, Zimbabwe, and South Africa face diverse dilemmas with a common theme: the prosecution of former leader, a sitting leader, and former vice president. Liberia former interim President, Charles Gyude Bryant has been sued to appear before a Liberian court on corruption charges, and the Supreme Court issued a stay order based on immunity claim. In Zimbabwe, negotiators from both sides, the ruling Zanu-PF and opposition Movement for Democratic Change have been debating the future of President Robert Mugabe, who faces charges of gross human rights violations and corruption. And in South Africa, the country is agog with allegations of corruption charges against Deputy President Jacob Zuma. The South Africa case is however different.
What made the South Africa case different is that South Africa is in a minority of countries that allow for the prosecution of sitting President. "The habit was to have immunity from prosecution while in office, but the modern trend is against that if you're serious about accountability," says Richard Calland of the Institute for Democracy in South Africa.
The dilemma of whether to prosecute is not Africa's alone. Italian former Prime Minister Silvio Berlusconi got off the hook for the time being for corruption because at that time the Parliament approved an Immunity Bill that froze a trial in which he is charged with bribing judges over a 1985 corporate takeover battle. The magistrates can investigate but cannot touch him while he is in power. In the same case, his former attorney, Cesare Previti, was sentenced to 11 years in prison for bribing judges on his behalf. Isn’t this interesting?
Corrupt presidents cannot afford to lose power and when they are no longer in power, they quickly evoke immunity. Without the amour of presidency, the world is inhospitable. "All presidents generally, corrupt and not corrupt, want to hold power for as long as possible," says Charles Lewis, executive director of the Centre for Public Integrity in Washington. "But a corrupt president also wants to stay in power to keep getting rich and protect himself/herself from the jaws of justice." And when he/she is out of power, he knows that the constitution will protect him/her.
High Risk and case studies
Peter Eigen, Chairperson of Transparency International in Berlin, says: "It is essential that politicians and public officials know that corruption is a high-risk strategy." The main obstacle to bringing former Nicaraguan President Arnoldo Alemán to justice was that he enjoyed immunity: he was appointed President of the Nicaraguan Assembly after he stepped down as President. Alemán faces charges of misappropriating at least $100-million in one of Latin America's poorest countries.
Former Zairian President Mobutu Sese Seko was probably the most notorious case of a president using the state as private property while protecting himself from prosecution. He ruled for more than 30 years, and pocketed an estimated $5-billion. He had the backing of Western leaders and institutions that saw him as a foil to leftist states such as Angola.
Liberia comes close as a leading example of semi-official kleptocracy. A law was promulgated that gave President Charles Taylor the right to dispose of all "strategic commodities" such as mineral resources, timber and artefacts. When Taylor knew that he will be facing international charges for human rights violations, he did not want to leave power even when rebels were just few yards away from his Monrovia stronghold. He was reluctant to leave unless the charges were dropped. He was arguing immunity. It is therefore common sense that Gyude Bryant and some of his officials knew best how to play the game after all some magical clause in the Constitution will remedy the situation.
Many other presidents have gone abroad on permanent holidays. Former Peruvian President Alberto Fujimori, dismissed in November 2000 as "morally unfit" to govern, left for Japan and has not returned. Joseph Estrada, former president of the Philippines, also claimed he was too ill to be prosecuted when time came for him to account for his actions. He was ousted in 2001 by a popular uprising; he stands accused of stockpiling $78-million from a gambling racket, misappropriated tax revenues and illicit investments.
Law sometime does no catch up
The law has never caught up with some presidents, even if they took no precautions. The term of former Panamanian president Ernesto Perez Balladares (1994 to 1999) was plagued by corruption cases. A "narcocheque" funded some of his presidential campaign, his ministers appropriated state property, and his direct involvement in the sale of hundreds of visas to Chinese emigrants on their way to the United States was well documented. But the cases never got to the courts.
Ousted by the Congress following corruption allegations just six months into his presidency, Abdalá Bucaram fled Ecuador to take refuge in Panama. His elected successor, Jamil Mahuad, was overthrown by a coup in January 2000 after it was discovered he accepted campaign donations from a corrupt banker.
General Mohamed Suharto, whose family controlled an empire in Indonesia worth between $16-billion and $35-billion during his 32 years in power, has survived three successors since he resigned in 1998. BJ Habibie, Abdurrahman Wahid and President Megawati Sukarnoputri have failed to bring him to trial. "Presidents and even former presidents are very powerful, and prosecuting them requires the will to prosecute," says Lewis. "It usually requires months if not years of public exposure and mounting disgust; gutsy, fearless law enforcement officials; and judges who do not flinch in the face of power."
The case against Zuma sets a new milestone. Says Eigen: "A head of state or government must demonstrate the political will to fight corruption, but success requires a broad base of support and engagement. For instance, in Nigeria, President Olusegun Obasanjo is fiercely committed to fighting corruption, but he cannot achieve that on his own. He needs the engagement of the political parties, the civil service and ordinary Nigerians."
This is equally true of the Liberian situation. President Sirleaf’s Solicitor General, Tiawan Gongloe, a former human rights lawyer and his team of lawyers, in order to be successful in prosecuting corrupt officials, will need the individual and collective support of ordinary citizens, student movements, political parties, and just all the stakeholders who want to see the country transformed. No one who understands presidential politics would expect the business man turned interim president to go quietly to court in the face of this corruption sweep without rightly or wrongly evoking immunity.
Of the 10 countries seen as the most corrupt in the Transparency International index of few years ago, half is in Africa. Taking the worst first, they are Bangladesh, Nigeria, Paraguay, Madagascar, Angola, Kenya, Indonesia, Azerbaijan, Uganda, and Moldova. But few African presidents have been prosecuted so far.
"The widespread corruption of the regime of Sani Abacha in Nigeria or Daniel Arap Moi in Kenya is widely recognized, but corruption has been so pernicious in both countries that it would be wrong to focus on the heads of state and the continent alone," says Eigen. France and Germany have seen a president and a former chancellor investigated for corruption: Jacques Chirac for his involvement in the Elf scandal and for funding for his election when he was Mayor of Paris, and Helmut Köhl for unlawful political donations. "Democracy without accountability is not much of a democracy at all," says Lewis. "The sad truth is that the most powerful, venal interests relatively easily manipulate whoever is in power, whether a repressive dictatorship or a democracy."
Many former presidents, like Chile's former dictator Augusto Pinochet, at least face accusations now instead of dying of old age or retiring at some beach resort on stolen billions, Lewis argues. This is precisely why it is an important development for Gyude Bryant and others to face trail so that this serves as deterrent for future leaders.
For Jonathan Elendu, “the provision in Nigerian Constitution that gives immunity to the president, vice president, governors and their deputy was put in place to protect people occupying such high offices from frivolous lawsuit” He believes that “while Nigeria may not have a reputation for being a litigious society, the Constitution contemplated that elected officials may be so bogged down by frivolous litigation that it becomes impossible for them to do the work they were elected to do. Unfortunately, this provision, which was meant to protect elected officials, has become an audacious agent for corrupt politicians. Some Nigerians argue that corruption has become a way of life in Nigeria, and therefore not much can be done.
God forbids that if the Government of Liberia is not determined to tackle this corruption drives with new zeal, Liberians may soon reach similar faulty logical conclusion like some Nigerians.
Just as It is lamentable that Nigeria, the sixth largest
producer of crude oil in the world, a leading exporter
of natural gas are among the richest nations and individuals
in the world, however, due to the criminal mismanagement
of the economy, the people of Nigeria rank amongst the
poorest in the world. How then do we expect a small
West African Country (Liberia) of about 3 million people
and with very high illiteracy rates that is replete
with news of corruptions to make progress if strong
stance is not taken? Liberia goes, cap in hand, begging
international donors for aid and financial institutions
for debt forgiveness. But when the same international
community suggests to us that we should be transparent
and prosecute corrupt officials, we hide behind non
interference and immunity.
President Levy Mwanawasa, in a bold, courageous move for African Leaders, urged his country’s Parliament to remove the immunity of former President Frederick Chiluba so he could face trial on charges of corruption. The interesting aspect of this courageous stand on the part of the president was that he was in fact a hand picked successor. He detailed the case not only involving Chiluba, but also several former ministers, and other high-ranking official, admitting that in one case Zambia lost US$25 million paid for supplies that were never delivered.
The leading case of an African leader who was also prosecuted for actions he committed when serving as President was Central African Republic President Jean-Bedel Bokasa who was sentenced to death for massacring children and for cannibalism in 1979. The sentence was later commuted to life in prison, and he was released three years before he died.
The Role of the Legislative Branch
Considering case study upon case study in Europe, Latin America, and Africa, it is about time that the question of blanketed immunity enshrined in African constitutions, particularly the Liberian Constitution, is revisited so that the high court is able to investigate corruption to the fullest. When one reads the ECOWAS Audit covering the Gyude Bryant led Administration, one sees former cabinet officials, a former speaker, senators and others accused of rampant corruption and misused of public funds in the current government shielded by immunity that must be carefully examined and if possible lifted by the first branch to expedite these cases.
As professor Balogun argues,” the African experience so far on the immunity clause has overwhelmingly continued to serve as conducting pipes of siphoning the nation’s wealth by the leaders without any fear of litigation.” The sooner African leaders and former leaders can be made to give account of their activities as president in a legal context, I am convinced, that future leaders would carefully weigh the consequences of their actions. While I support prosecution of corrupt officials, it must be done within the confines of the law and due process.
The corruption involving Gyude Bryant and others is a test case for many, particularly friendly governments who wants to help in the reconstruction of Liberia. Why will one expect countries to commit their tax payer’s monies to a Country’s reconstruction when those funds soon end up in the hands of a few corrupt officials who will not be made to account because they are protected by blanketed immunity clause that does not benefit the country.
If the Johnson-Sirleaf led Government is to succeed in fighting corruption, indictments on corrupt charges must be backed by serious legal and political will to prosecute and convict.
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