In order to fight corruption we must begin by examining our laws
By Mugoya Wa Wanyoto
In his swearing-in speech in May 2016, President Yoweri K.Museveni committed to fighting corruption in this new term. This commitment is not new and indeed commendable steps have been taken in the past in this regard.
These include the establishment of the Inspectorate of Government, Office of the Auditor General, the Passing of the Anti- Corruption Act 2009 and the establishment of the Anti-Corruption Division of the High Court coupled with the recently formed State House, Anti-Corruption Unit.
Despite these steps, corruption in Uganda is still rampant and Uganda is still ranked among the most corrupt countries in the world by global watchdogs like Transparency International.
Why we must fight corruption
Before we talk about “how to fight corruption”, we must first appreciate “why we must fight corruption”. Some respected commentators have argued that “corruption is not necessarily a bad thing and that it may have a positive impact on the economy”. Such talk is simply diversionary. The United Nations has acknowledged that corruption leads to the violation of all Human Rights including the right to life and the right to justice.
When a Government official steals money meant to purchase medicines and builds a shopping mall, the result is that thousands of innocent Ugandans including children are going to lose their lives and hence their right to life being deprived. Corruption, therefore, leads to poor service delivery and it has adverse consequences particularly on the health, education and transport sectors. In this regard, corruption can be a catalyst for civil conflict and ultimately lead to unprincipled regime change. Therefore trying to justify corruption is unacceptable and elitist. Corruption benefits a few to the detriment of the majority.
Making corruption a risky business
In order to fight corruption, we must begin by examining our laws. To begin with, are the maximum penalties for stealing public funds deterrent enough? Embezzlement and causing financial loss are the two most common offences with which those who steal public funds are charged. Under sections 19 and 20 of the
Anti- Corruption Act, these offences are punishable by a maximum of fourteen years imprisonment. The irony about these sections is that a person who steals 1 million and another who steals 200 billion are liable to the same maximum penalty. This simply has to change. We must look at introducing the offence of “aggravated embezzlement” for instance whereby a threshold of for instance 1 billion is used. The maximum penalty for aggravated embezzlement must be death or life imprisonment at the very least. This is because corruption kills and it kills very many people over time.
If a person who has murdered only one person by shooting or by stabbing is liable to suffer death, why should he who has killed one thousand people through embezzlement of funds meant to buy HIV drugs for instance not be put to death? Indeed many countries in Asia such as China and Iran put to death those who are convicted of aggravated corruption. Though the vice has not totally been eliminated in those countries, it is indeed a very risky venture and misuse of public funds is rare. This has fast-tracked development in these countries. We must take a leaf from these countries and increase the punishment for misuse of public funds.
Asset recovery as a weapon against corruption
Another important step in the fight against corruption is ensuring that the Assets of the corrupt are recovered from them. The rationale for asset recovery was perhaps best stated by Gaspare Mutolo a former Italian mafia when he said that “The worst feeling is when our money is taken away from us. Criminals prefer to be put behind bars and keep their money than to stay free without the money!”
Currently, the Anti-Corruption Act and the Anti-Money Laundering Act provide for a number of useful tools that can be used by the State to recover stolen assets from the corrupt. These include production orders, monitoring orders, restraining orders, confiscation orders and compensation orders. However, these laws are not sufficient to ensure effective asset recovery by the Government.
During the launch of the Special Investigations Unit by the Inspectorate of Government in 2016, the Minister for Ethics & integrity; Reverend Lokodo announced that plans are underway to introduce a law that will enable the Government to confiscate proceeds of crime without requiring a criminal conviction. Nothing has come of this, as yet, but what father Lokodo was proposing is known as “Non-Conviction Based Asset Recovery”.
Non-conviction based asset recovery happens whereby the State uses civil proceedings to prove that an asset is a procedure or an instrumentality of crime and should, therefore, be forfeited to the State. Unlike in criminal proceedings whereby the standard of proof is “beyond a reasonable doubt”, the standard here is “on the balance of probabilities”.
Non-conviction based asset recovery is particularly useful in cases where the offender has died or fled the jurisdiction, where the offender enjoys immunity from criminal charges, or where the offender for some reason cannot be successfully prosecuted. For instance where witnesses have died or been intimidated.
Currently, the closest our law comes to providing for non-conviction based asset recovery is under sections 65 and 85 of the Anti-Corruption Act and Ant-Money Laundering Acts respectively which provide for the procedure when an offender dies or absconds.
Non-Conviction based recovery in Uganda is particularly very necessary because, criminal proceedings take too long to be concluded but before we get to the trial, the investigations are more often than not messed up. Some powerful accused persons have in the past bought off prosecution witnesses and thus turned them into hostile witnesses. These “fat cats” have ended up being acquitted and retaining their ill-gotten wealth.
Non-conviction asset recovery is successfully being used in the developed world by the United Kingdom and USA. In Africa, South Africa has taken the lead in this area but Namibia and Botswana have followed suit. All these countries have a law dedicated entirely to asset recovery which is known as “The proceeds of Organized Crimes Act”. This law not only provides for non-conviction based asset recovery but also has useful provisions on how to manage stolen assets. In Uganda today we don’t have a clear stolen asset management strategy. As a matter of urgency, Uganda must legislate and pass The Proceeds of Organized crimes Act.
Empowering Anti-Corruption Agencies
Though the introduction of a Special Investigations Unit by the Inspectorate of Government sometime in 2016 was a welcome development, there is still a lot more to be done. As a matter of urgency, the government must ensure that it enlists special financial investigators with an accounting or auditing background. In
conjunction with our development partners, these financial investigators must be given the specialised training as tracing the assets of the corrupt is not a simple task. The corrupt usually spend a great deal of effort in concealing their ill-gotten wealth by the use of shell companies, registering assets in the names of relatives, cronies and straw men. For efficient asset recovery, we must have adequately trained financial investigators and analysts in our anti-corruption agencies.
Further, the Anti-corruption agencies like the IG, the DPP, the Police and the judiciary must be given the necessary funding to do their work effectively. The DPP, for instance, is under-funded yet they are responsible for prosecuting corruption cases from both government and private sectors. The role of the DPP in fighting corruption should not be under looked. In this regard, efforts must be undertaken to ensure that State Attorneys, judges and investigators have sufficient training in the emerging areas of the law like cyber-crime and digital evidence. Those who are handling serious corruption and asset recovery cases must be given security to ensure that their lives and those of their families are not threatened.
Many corrupt officials normally transfer their assets to foreign jurisdictions. With the threat of global terrorism, many countries are increasingly taking measures to reduce movement of illicit monies across boarders through money laundering and terrorism financing. The Government of Uganda should take advantage of this situation to ensure that it signs as many extradition and mutual legal assistance agreements with all willing countries. This will mean that the corrupt will have nowhere to hide themselves and their ill-gotten wealth.
An effective fight against corruption is the key to achieving the Kisanja hakuna mchezo. The Government must simply take a “no-nonsense” approach in the fight against corruption by implementing steps pointed out above.
The writer is a Pan Africanist, businessman and lawyer