I read Nick Branson’s article about debt and corruption in Tanzania with great interest. I do not know much about the cases in question, but it seems to me that from the Kenyan and Tanzanian experience one can draw one or two general conclusions.
Corruption is notoriously difficult to prove; even finding enough evidence to prosecute is hugely labour-intensive and frustrating. With pressure on budgets in the UK, the investigating bodies here have to prioritise, and the worry is that they will not want to spend a lot of time and money looking into allegations involving African governments. That is because those governments and related state institutions are frequently implicated in important corruption cases; and because the British authorities seldom get any co-operation worth having. Frequent offers from the UK side to act on commissions rogatoires in the case of the Anglo-Leasing scandals ten years and more ago received no response from the Kenyan authorities, who simply did not wish to wind up the British authorities over cases they preferred to leave alone; nor have they been much better, I believe, in providing evidence to our authorities for our own prosecutions here.
It seems that the only corruption cases involving British banks or companies in Africa that may get somewhere are those which can be pursued successfully in this country without help from the overseas authority. These cases are the low-hanging fruit. Higher up the tree must be the still grander corruption involving the even more rich and famous. All those are left firmly alone by local governments unless, for other reasons (e.g. political revenge), they wish to make a point. Our own may not be above occasionally heaving a sigh of relief that these are in the “too difficult” category.
As for plea bargains of various kinds, they remove the human element from prosecutions. (The exception to this seems to have been the Smith and Ouzman case). It appears that no-one is to be held responsible, and African names are rarely mentioned in the UK hearings.
Further, our Courts may or may not exact fines commensurate with the value of the contracts involved. We non-lawyers have no way of judging. Over time I suspect few in this country – or in Africa, which is more to the point – will believe that plea bargains are anything more than a device for buying off the dogs of prosecution with a few bones. That does the rule of law no favours. It is doubly damaging if, as seems to be the case, local justice has so little credibility that the only hope is to press charges in the UK.
Increasingly, the corruption of foreign justice systems means that East African anti-corruption campaigners can only hope for the UK authorities to act, for their own will not. In doing so, the UK authorities will be dragging a dead weight in terms of co-operation from the overseas jurisdiction.
Nick Branson also makes the important point arising from the Tanzanian case, that the way in which evidence was acquired by the SFO and others from the bank’s own lawyers is odd and unsatisfying. Indeed, Professor Lipumba and others whose interest is objective and dispassionate may well wonder what other large graft is concealed beneath the patina of deferred prosecution agreements (DPAs) and other devices that raise more questions than they satisfactorily answer.
If Africans want their own sovereign institutions to gain international and domestic confidence and respect for the investigation of crimes against humanity downwards, they need urgently to cultivate a public culture of respect for the rule of law. That means leaders accepting their own submission to the law: if Africans cannot enforce that, then they will be powerless to resist the encroachment of foreign jurisdictions seeking extra-territorial powers in order to enforce at least some forms of justice.
More laws are not needed about corruption or anything else. There are already plenty of laws, models of their kind, on the statute books. What is needed is their enforcement – and that requires indigenous politics that prioritises a strong, independent and clean judiciary above deference towards Big Men (or Women); and which challenges the idea that sovereignty resides in the untouchability of the person of the head of government at any particular moment.
In the meantime, the corruption of legal institutions will turn out to be a large brake on development, foreign investment, and meaningful efforts at social justice. It is perhaps the hardest form of institutional corruption to put right as well as the most damaging to endure. Want of proper justice is likely to be the trigger for an African Spring when ill-treated people despair of their ability to hold their leaders to account.
Sir Edward Clay is a former British high commissioner to Uganda and Kenya.