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Grand corruption, which is best described as the abuse of power by public holders often for private gain, has been recognised as a global problem which has had a serious social impact on the world, affecting sustainable development, with the most significant impact on the economies of developing nations.
It exists not because there is a shortage of domestic anti-corruption legislation in many countries, but a lack of effective structures for the enforcement of these laws and the political will.
Let me begin with a brief account of my personal background. I joined the United Nations in January 1998 from practice as a very young criminal defence solicitor in the city of London. Following my decade-long career as an international prosecutor, wherein as lead prosecution counsel I prosecuted 12 genocide trials at the International Criminal Tribunal for Rwanda and headed the special investigations unit within the Office of the Prosecutor (OTP), I chose to return to Nigeria hoping that I could utilise my international experience to contribute my modest quota to nation building.
In 2016, I was appointed as a special prosecutor by the Government of the Federal Republic of Nigeria (FRN). My mandate was to investigate and prosecute the highest-ranking judicial officers in the land for corruption, which was completely unprecedented. As such, I will, in this article, rely on my personal experience in leading the fight against grand corruption in Nigeria.
Between 2016 and 2018, a total of 12 judges were either investigated, charged or prosecuted by the Attorney-General of the Federation and/or the various anti-graft agencies for grand corruption during the President Buhari-led administration. Typical charges included corrupt and unlawful enrichment, bribery, and/or money laundering under the various anti-graft laws in Nigeria. Others included charges for breaches of the code of conduct for public officers.
Soon after my appointment, I began to witness a series of events which demonstrated to me the sheer impossibility of the assignment. First, there were very strong indications of the likelihood of the abuse of prosecutorial discretion by the Attorney-General and the use of political power to settle old scores. Second, and closely linked to the first, was the issue of political interference, which in essence is when corruption fights back. I had first-hand experience of this in 2017, following the Attorney-General’s decision to withdraw the charges I had proffered against four very senior officials within the Nigerian judiciary, forcing me to withdraw, in protest, as lead counsel for the FRN in February 2017.
Third is that it is now virtually impossible to render any judicial officer accountable for alleged unlawful conduct because on 27 May 2022, the Supreme Court of Nigeria, affirming the decision of the Court of Appeal in the case of FRN v Nganjiwa (2002) LPELR-58066(SC), held that a serving judge cannot be prosecuted for corruption, unless such a judge had first been probed and found culpable by the National Judicial Council (NJC), and that it is only after having been stripped of his/her judicial functions, that such a judge could be turned over to prosecuting authorities.
My experience of political interference in the exercise of my functions as special prosecutor pales into insignificance when compared to that of Dr Ngozi Okonjo-Iweala when she served as Minister of Finance within the FRN. In her book titled Fighting Corruption Is Dangerous: The Story Behind the Headlines (MIT Press: USA, 2018), the current Director-General of the World Trade Organization lamented that fighting corruption, particularly in Nigeria, is very dangerous because corruption always fights back. She chronicled the plight of her own 83-year-old mother at the hands of kidnappers following her abduction on Sunday, 9 December 2012. It was later to be revealed to the elderly lady that her daughter’s official actions as Minister of Finance, particularly in refusing to pay oil marketers, led to her kidnap. What could be more distressing than the abduction of an 83-year-old? Even though, for over a decade, I led the prosecution of the worst crime known to mankind, I am thankful never to have been confronted with such a direct threat to members of my immediate family.
The point, of course, must be made from the outset that the proposed IACC is not intended as an imposition. Rather, the intended goal of the IACC is to function on the principle of complementarity and serve as an institution of last resort, capable of holding corrupt public officials and their collaborators from the private sector, who may have escaped the clutches of accountability before national courts, accountable for grand corruption.
The ability of the proposed IACC to apply existing domestic anti-graft laws in the prosecution of offenders would, in my view, be a huge advantage to the successful operation of such a court, as one would be able to get past issues of retroactivity because the court will have subject matter jurisdiction if the conduct in question amounted to a crime in the victim country. Unlike the situation in domestic jurisdictions, top political office holders would not enjoy any immunity from the jurisdiction of the proposed court.
In terms of its structure, it is proposed that the IACC would have both criminal and civil jurisdictions. The importance of the civil jurisdiction of the proposed court lies in the fact that non-conviction-based civil asset forfeiture proceedings have been successfully deployed in developing nations in the recovery of stolen assets and the courts have held that this procedure does not violate the presumption of innocence. A good example of the non-conviction-based civil asset forfeiture regime can be seen in the recovery by the FRN of the so called ‘Abacha loot’ since 1999.
Despite the obvious advantages of having an international anti-corruption court, I must admit that there are bound to be several challenges to the successful operation of such an institution. These foreseeable challenges may be classified as political, procedural and operational.
The political challenges would revolve around the repatriation of the recovered stolen assets to victim countries. I find that to win wider support within victim countries, most of whom I dare say are in the developing nations, the IACC must be empowered to address the issue of repatriation of looted funds to such countries.
While there is clearly merit in the argument of the developed nations that cumbersome conditions of recovery are necessary to prevent re-looting of the recovered assets, there is, in my view, merit in the argument that having through their laws, professionals and opaque trust structures, provided the enabling environment to potential looters in the first place, enabling countries in the developed nations have no moral standing to impose conditions on victim countries in the developing nations as to the repurposing of such recovered looted funds.
The collective view of victim countries in this regard is perhaps best exemplified by former President Buhari’s comments in response to a question by journalists as to whether he was offended by former British Prime Minister, David Cameron’s comments to the then British Monarch about Nigeria and Afghanistan being fantastically corrupt countries. Buhari responded as follows:
‘I am not going to be demanding any apology from anybody. What I will be demanding is the return of assets….’
President Buhari’s views not only amplify the challenges African countries face under the current fragmented, politicalised and uncoordinated international asset recovery governance framework but re-emphasise the power asymmetry in the recovery processes, and the need for what could best be described as an ‘Africentric’ reform by the creation of a new multilateral system and the development of guiding rules and procedures to advance and resolve disputed stolen asset recovery matters between countries in the developed and developing nations.
The proposed IACC should not be modelled along the same lines as the International Criminal Court (ICC). If the court were to be perceived to be another ICC, the idea of the IACC would perhaps be dead on arrival – at least as far as some of the leading countries in the developing nations are concerned. Why? Well, three main reasons. The first is the perception by several developing nations that the ICC, as an institution, has targeted mainly developing countries. The second is, of course, the fact that despite its over-bloated personnel, the ICC is generally seen by developing countries only in terms of its minimal and lacklustre achievements spanning over two decades. Third, the ICC is now better known for its drawn-out pre-trial procedure rather than the conduct of full-blown trials on the merits.
A rather thorny operational challenge for the proposed IACC lies in its funding and, by implication, its size. Although voluntary contributions from Contracting States will probably serve as the major backbone of its finances, one could ordinarily expect that an appreciable percentage of recovered or frozen assets may be applied to the running of the court. Care must, however, be taken to prevent an over reliance on such a source so as not to further deplete funds available for repatriation to the victim countries. A four-organ model (chambers, prosecution, registry and victims) will be ideal.
The ability of the IACC to establish a robust and effective whistleblowing and witness protection regime will be essential to successful operation of the investigative and prosecutorial aspects of the court.
It can be argued that a major reason for the perpetuation of corruption in the developing world lies in the fact that it is too easy for looted public funds to end up in developed countries. The IACC is certainly not a cure-all solution to grand corruption, but it will enormously reduce its prevalence by ensuring, through a wide jurisdiction, that there are fewer or no safe havens for looted funds.
As a result of advocacy coordinated by Integrity Initiatives International (III), Canada, Ecuador, Moldova, the Netherlands and Nigeria have made public commitments to work towards the creation of the IACC. A declaration calling for the creation of the court has been signed by more than 300 leaders from over 80 countries, including more than 45 former presidents and prime ministers and over 30 Nobel Laureates. The III is now organising a group of leading international jurists, scholars, and anti-corruption experts, including myself, to draft a proposed treaty to establish the court. It only hoped that these efforts will lead to the establishment of the court.
Dr Charles A. Adeogun-Phillips practises international law from Guernica 37 Chambers, London. He is also lead counsel at Charles Anthony Lawyers, Nigeria, from where he has acted for the FRN in several stolen asset recovery matters. He is a former international prosecutor and head of special investigations at the United Nations. He is also a member of the Board of Integrity Initiatives International (III).
Grand corruption, which is best described as the abuse of power by public holders often for private gain, has been recognised as a global problem which has had a serious social impact on the world, affecting sustainable development, with the most significant impact on the economies of developing nations.
It exists not because there is a shortage of domestic anti-corruption legislation in many countries, but a lack of effective structures for the enforcement of these laws and the political will.
Let me begin with a brief account of my personal background. I joined the United Nations in January 1998 from practice as a very young criminal defence solicitor in the city of London. Following my decade-long career as an international prosecutor, wherein as lead prosecution counsel I prosecuted 12 genocide trials at the International Criminal Tribunal for Rwanda and headed the special investigations unit within the Office of the Prosecutor (OTP), I chose to return to Nigeria hoping that I could utilise my international experience to contribute my modest quota to nation building.
In 2016, I was appointed as a special prosecutor by the Government of the Federal Republic of Nigeria (FRN). My mandate was to investigate and prosecute the highest-ranking judicial officers in the land for corruption, which was completely unprecedented. As such, I will, in this article, rely on my personal experience in leading the fight against grand corruption in Nigeria.
Between 2016 and 2018, a total of 12 judges were either investigated, charged or prosecuted by the Attorney-General of the Federation and/or the various anti-graft agencies for grand corruption during the President Buhari-led administration. Typical charges included corrupt and unlawful enrichment, bribery, and/or money laundering under the various anti-graft laws in Nigeria. Others included charges for breaches of the code of conduct for public officers.
Soon after my appointment, I began to witness a series of events which demonstrated to me the sheer impossibility of the assignment. First, there were very strong indications of the likelihood of the abuse of prosecutorial discretion by the Attorney-General and the use of political power to settle old scores. Second, and closely linked to the first, was the issue of political interference, which in essence is when corruption fights back. I had first-hand experience of this in 2017, following the Attorney-General’s decision to withdraw the charges I had proffered against four very senior officials within the Nigerian judiciary, forcing me to withdraw, in protest, as lead counsel for the FRN in February 2017.
Third is that it is now virtually impossible to render any judicial officer accountable for alleged unlawful conduct because on 27 May 2022, the Supreme Court of Nigeria, affirming the decision of the Court of Appeal in the case of FRN v Nganjiwa (2002) LPELR-58066(SC), held that a serving judge cannot be prosecuted for corruption, unless such a judge had first been probed and found culpable by the National Judicial Council (NJC), and that it is only after having been stripped of his/her judicial functions, that such a judge could be turned over to prosecuting authorities.
My experience of political interference in the exercise of my functions as special prosecutor pales into insignificance when compared to that of Dr Ngozi Okonjo-Iweala when she served as Minister of Finance within the FRN. In her book titled Fighting Corruption Is Dangerous: The Story Behind the Headlines (MIT Press: USA, 2018), the current Director-General of the World Trade Organization lamented that fighting corruption, particularly in Nigeria, is very dangerous because corruption always fights back. She chronicled the plight of her own 83-year-old mother at the hands of kidnappers following her abduction on Sunday, 9 December 2012. It was later to be revealed to the elderly lady that her daughter’s official actions as Minister of Finance, particularly in refusing to pay oil marketers, led to her kidnap. What could be more distressing than the abduction of an 83-year-old? Even though, for over a decade, I led the prosecution of the worst crime known to mankind, I am thankful never to have been confronted with such a direct threat to members of my immediate family.
The point, of course, must be made from the outset that the proposed IACC is not intended as an imposition. Rather, the intended goal of the IACC is to function on the principle of complementarity and serve as an institution of last resort, capable of holding corrupt public officials and their collaborators from the private sector, who may have escaped the clutches of accountability before national courts, accountable for grand corruption.
The ability of the proposed IACC to apply existing domestic anti-graft laws in the prosecution of offenders would, in my view, be a huge advantage to the successful operation of such a court, as one would be able to get past issues of retroactivity because the court will have subject matter jurisdiction if the conduct in question amounted to a crime in the victim country. Unlike the situation in domestic jurisdictions, top political office holders would not enjoy any immunity from the jurisdiction of the proposed court.
In terms of its structure, it is proposed that the IACC would have both criminal and civil jurisdictions. The importance of the civil jurisdiction of the proposed court lies in the fact that non-conviction-based civil asset forfeiture proceedings have been successfully deployed in developing nations in the recovery of stolen assets and the courts have held that this procedure does not violate the presumption of innocence. A good example of the non-conviction-based civil asset forfeiture regime can be seen in the recovery by the FRN of the so called ‘Abacha loot’ since 1999.
Despite the obvious advantages of having an international anti-corruption court, I must admit that there are bound to be several challenges to the successful operation of such an institution. These foreseeable challenges may be classified as political, procedural and operational.
The political challenges would revolve around the repatriation of the recovered stolen assets to victim countries. I find that to win wider support within victim countries, most of whom I dare say are in the developing nations, the IACC must be empowered to address the issue of repatriation of looted funds to such countries.
While there is clearly merit in the argument of the developed nations that cumbersome conditions of recovery are necessary to prevent re-looting of the recovered assets, there is, in my view, merit in the argument that having through their laws, professionals and opaque trust structures, provided the enabling environment to potential looters in the first place, enabling countries in the developed nations have no moral standing to impose conditions on victim countries in the developing nations as to the repurposing of such recovered looted funds.
The collective view of victim countries in this regard is perhaps best exemplified by former President Buhari’s comments in response to a question by journalists as to whether he was offended by former British Prime Minister, David Cameron’s comments to the then British Monarch about Nigeria and Afghanistan being fantastically corrupt countries. Buhari responded as follows:
‘I am not going to be demanding any apology from anybody. What I will be demanding is the return of assets….’
President Buhari’s views not only amplify the challenges African countries face under the current fragmented, politicalised and uncoordinated international asset recovery governance framework but re-emphasise the power asymmetry in the recovery processes, and the need for what could best be described as an ‘Africentric’ reform by the creation of a new multilateral system and the development of guiding rules and procedures to advance and resolve disputed stolen asset recovery matters between countries in the developed and developing nations.
The proposed IACC should not be modelled along the same lines as the International Criminal Court (ICC). If the court were to be perceived to be another ICC, the idea of the IACC would perhaps be dead on arrival – at least as far as some of the leading countries in the developing nations are concerned. Why? Well, three main reasons. The first is the perception by several developing nations that the ICC, as an institution, has targeted mainly developing countries. The second is, of course, the fact that despite its over-bloated personnel, the ICC is generally seen by developing countries only in terms of its minimal and lacklustre achievements spanning over two decades. Third, the ICC is now better known for its drawn-out pre-trial procedure rather than the conduct of full-blown trials on the merits.
A rather thorny operational challenge for the proposed IACC lies in its funding and, by implication, its size. Although voluntary contributions from Contracting States will probably serve as the major backbone of its finances, one could ordinarily expect that an appreciable percentage of recovered or frozen assets may be applied to the running of the court. Care must, however, be taken to prevent an over reliance on such a source so as not to further deplete funds available for repatriation to the victim countries. A four-organ model (chambers, prosecution, registry and victims) will be ideal.
The ability of the IACC to establish a robust and effective whistleblowing and witness protection regime will be essential to successful operation of the investigative and prosecutorial aspects of the court.
It can be argued that a major reason for the perpetuation of corruption in the developing world lies in the fact that it is too easy for looted public funds to end up in developed countries. The IACC is certainly not a cure-all solution to grand corruption, but it will enormously reduce its prevalence by ensuring, through a wide jurisdiction, that there are fewer or no safe havens for looted funds.
As a result of advocacy coordinated by Integrity Initiatives International (III), Canada, Ecuador, Moldova, the Netherlands and Nigeria have made public commitments to work towards the creation of the IACC. A declaration calling for the creation of the court has been signed by more than 300 leaders from over 80 countries, including more than 45 former presidents and prime ministers and over 30 Nobel Laureates. The III is now organising a group of leading international jurists, scholars, and anti-corruption experts, including myself, to draft a proposed treaty to establish the court. It only hoped that these efforts will lead to the establishment of the court.
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