According to Lawrence Cohen, QC of Wilberforce Chambers in London, Zambia and Africa are using the wrong instruments to fight corruption.
This was revealed to me by Her Majesty’s Queen’s Counsel at the recently concluded Commonwealth Lawyers Association Conference held in Livingstone between April 8th and 12th 2019. Criminal law and related criminal statutes are not suitable vehicles with which to effectively fight and win the fight against the cancer of corruption. Cohen’s experience is that criminal law only deals with a very small percentage of individuals and a very small percentage of actual dollar or Kwacha amounts involved in the web of corruption. The big fish and the humongous amounts are rarely captured. If the bigger fish are caught, their biggest enablers and the trillions of dollars stolen, are not captured. The explanation by Cohen is simple. High stakes corruption always has an external element in form of foreign governments, individuals or corporations.
When criminal law is used, and criminal law is territorial, the external enabling environment is largely untouched. And corruption continues outside. As well as inside Zambia. The culprit who is being criminally prosecuted or tried in Zambia or Malawi continues to have the fruits of corruption multiply outside Zambia unmolested. The foreign nation, individuals or corporations that are always involved in big scale corruption with local elements in Zambia continue to thrive in Zambia and abroad, untouched by Zambia’s criminal statutes. The local criminal justice system during a trial, may even reveal the sources and movements of foreign originated money or individuals and corporations but the latter would themselves not be on trial. So corruption continues to thrive both here in Zambia and abroad. Corruption is a living octopus with many arms and heads. You chop one arm or head, another one pops up to replace the decimated one.
Cohen knows what he is talking about. He had been retained by the United Nations to study and deal with the conundrum of corruption in Malawi and Sierra Leon. More important, he was enmeshed in the representation of one of the far-most corrupt African leaders ever, the family of the late Nigerian Dictator San Abacha. When the Nigerian government went after Abacha’s money abroad, the Abacha family turned to Lawrence Cohen for representation. While the Nigerian government celebrated a few hundreds of millions of dollars that were recovered, billions remained abroad that will never be recovered. All this money continues to fuel the economies of rich countries like Switzerland, Britain etc. It is truly sickening criminal behaviour that our corrupt leaders deprive their poor citizens to develop the economies of the already developed rich countries. The first time I visited Geneva years ago, someone pointed to me a beautiful hotel across from the main railway station which was owned by Mobutu Sese Seko of then Zaire. In study tours in Europe, I saw first hand the son of then Haitian Dictator Baby Doc Duvalier spend money like there was no tomorrow. When I asked him where the money came from since I was on a shoe-string scholarship from The Hague Academy of International Law, he bragged that his money in Haiti was flowing from unlimited reservoirs. Everywhere we went, he was staying in properties owned by his father. And this is pure low level staff. There are higher stakes. The Panama and Paradise Papes caught all that. I have tried to encourage my students to study all this stuff but all they give me in their dissertations is,”The Effectiveness or Lack Thereof of the Anti-Corruption Commission”. I reject such lame topics. It is known in advance by the discerning individual what the result will be any time you hear of someone being prosecuted for corruption in Zambia.
Cohen told me that when the Abacha corruption revelations were going on, General Olusegun Obasanjo the then fairly elected leader of Nigeria was interviewed in New York about how his government would now streamline foreign contracting since foreign-fuelled corruption was mainly channeled through illicit contracting, or corrupt contracting, Obasanjo never skipped a heart-beat. And Cohen couldn’t believe it. Obasanjo pointed to his son who was standing nearby and said, “for foreign contracting in Nigeria, see that man”. “See my son”. And he appeared serious. The moral of the story whether true or not is that the Nigerian government never put any new systems up to now to correct the rabid corruption in foreign contracting that enabled Abacha to steal millions of oil dollars from his poor country to fuel the fortunes of already rich countries. Old corruption continues unabated. Charles Mwewa in his book, “Zambia Struggles of My People and Western Contribution to Corruption and Underdevelopment in Africa” also documents the international intertwined-ness of corruption.
What solution does Cohen offer to deal with corruption in let’s say Zambia? Internationalise the fight against corruption and avoiding corruptible criminal proceedings, was his answer. Sue abroad. Cohen proposes that corruption must be fought through civil tribunals, civil litigation where the onus of proof is on a balance of probabilities and not on proof beyond a reasonable doubt. Many corruption cases collapse on the criminal standard. Further most police forces are incompetent in their investigations of corruption cases and there is usually political interference in these prosecutions. In most cases, the Anti-Corruption Commission has to seek the permission of the President in order to investigate a government official. President Sata used to be categorical: “Don’t investigate my ministers without first informing me”. And the Director of Public Prosecutions has to be involved and must approve before any prosecutions take place. If there is political interference with the DPP, nothing can move. Further most prosecutors unleashed on these cases prosecute these cases incompetently with their hands tied behind their backs by political interference. The judges’ hands and heads are tied through political interference.
To avoid criminal trials and civil trials in Zambia or Malawi, where corruption interferes with the prosecution process and skews the result, big scale corruption cases should be filed in civil courts or international tribunals abroad where the onus of proof will be on a balance of probabilities. And where political interference with the prosecution and judiciary will be non-existent. This is something to ponder about. So says Lawrence Cohen from his vast international experience including representing the family of San Abacha. President Chiluba was prosecuted abroad. We know the result. We also know what happened when remnants of the case were brought to Zambia. We can read the results of jurisdictional motion in the Lungowe pollution case that was taken to England and what the judges said there in granting jurisdiction. The reasoning there is on all fours with that of Lawrence Cohen. Let’s pay close attention to that counsel.
Dr. Munyonzwe Hamalengwa teaches Criminal Law and Law of Evidence in Zambia.