The Question of Immunity and Economic Sabotage--A Test Case
By Amos Ziah Koukou
The Perspective
Atlanta, Georgia
April 5, 2007
Pledge
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
immunity.
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).
 |
|
Gyude Bryant
|
In reaction to the March 13, 2007 charging of Charles Gyude Bryant with economic sabotage, a first-class felony, and also accusing him of embezzling more than $1million from Government during his two year tenure as chairman of the transitional government, the legal battle is on. It was normal reaction when Bryant’s lead lawyer, former Solicitor General, Theophillus Gould filed a petition in the Supreme Court, asking the court to stop the Liberian Government from prosecuting his client citing Article 61 of the Liberian Constitution which reads, “The president shall be immune from any suits, actions or proceedings, judicial or otherwise, and from arrest, detention or other actions on the account of any provision of the Constitution or any other laws of the republic. The president shall not, however, be immune from prosecution upon removal from office for the commission of any criminal act done while president”. The basis for this stay order is immunity from prosecution as a former Head-of-State. It was not surprising that Justice-in-Chamber Gladys Johnson, a one time resident of Philadelphia, who I have been keenly observing from the Liberian Community of Pennsylvania and her activities at the Supreme Court so far, granted the stay order.
As argued correctly by FrontPageAfrica legal columnist Alvin Teage Jalloh, the question is whether Mr. Bryant served as a president in the constitutional sense. Legal scholars will be debating this question for a while regardless of how the Supreme Court subsequently rules.
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.
The Dilemmas
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."
Gongloe’s Gamble
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.
Zambia Lesson
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.
Conclusion
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.
About the Author: Amos Ziah Koukou is a Doctoral candidate at Widener University, Chester, Pa, USA. He can be reached at:Akiah2000@yahoo.com
© 2007 by The Perspective
E-mail: editor@theperspective.org
To Submit article for publication, go to the following URL: http://www.theperspective.org/submittingarticles.html