Biya Must Confront Root Causes Of Corruption - Prof. Kale

Interviewed By Dibussi Tande

Ndiva Kofele-Kale, Professor of Public International Law at Southern Methodist University in Dallas, Texas, is a leading scholar on the impact of corruption in developing countries. He is also at the forefront of the growing movement to make corruption a human rights violation punishable under international law. In this interview, Professor Kofele-Kale talks about the anti-corruption drive in Cameroon, and the need to establish international mechanisms for dealing with corruption by high-ranking government officials.

What is your preliminary assessment of the ongoing anti-corruption campaign in Cameroon?

Prof. Ndiva Kofele Kale: I think the jury is still out and any predictions on the final outcome would be premature. In the end, it may just turn out that the arrests of few top officials will amount to nothing more than a smokescreen or "wool pulled over our eyes," to borrow your phraseology. I hope that I am wrong on this one and pray that subsequent events will prove me wrong given the awfully high stakes involved!

In a recent article in The Post newspaper, you proposed a debt-franc swap program as a means of recovering funds embezzled by Cameroonian officials. Can you explain this proposal in layman's terms?

Your typical debt-equity swap operates this way: (1) Let's suppose that a US commercial bank loans $200 million to the Cameroon government, say, in 1982 when the economy was robust, but is now unsure that government will be able to continue servicing the loan and to eventually repay the principal.

Anxious to avoid a possible default or tedious periodical rescheduling negotiations, the bank decides to sell the debt that it holds at a discount of, say, 50 cents for each dollar to a US investor wishing to make a new investment or expand existing operations in the debtor-country (Cameroon).

The $200 million debt is discounted to $100 million; (2) the US investor then purchases the $200 million debt for $100 million in cash; (3) the Cameroon government then redeems the debt notes by paying the investor an amount, usually less than the face value of the purchased debt, say, $170 million instead of $200 million, but on condition that the funds are invested in Cameroon.

(4) If the investor accepts, government will then pay him in local currency (francs CFA), bonds, assets or state-owned shares in a local enterprise such as SOTUC or CAMAIR. In my proposal, debt owed to the members of the Paris Club, for example, is discounted along the lines just described.

On the basis of a limited amnesty programme, the Ondo Ndongs and Siyam Siewes with significant assets stashed abroad will be allowed to purchase the discounted debt notes with the embezzled funds. They can then redeem the debt notes from BEAC or the Ministry of Economy and Finance in CFA francs for investment in local enterprises.

Some have criticized this proposal because it apparently rewards bad behavior …

Legal purists will find the use of amnesty in corruption cases offensive because it goes against the goals of deterrence, criminal responsibility, and the removal of guilty officials from positions where they are likely to continue engaging in corrupt practices.

I do not believe, however, that criminal prosecutions alone will resolve the full range of problems spawned by official corruption. Some form of limited or general amnesty will have to be used alongside criminal prosecutions as part of negotiations for the return of embezzled funds.

Given the staggering amounts of national wealth lost annually through corruption, there is urgent need to come up with creative and innovative solutions for recovering and repatriating some, if not all, of these illicit assets. Victim states should not hesitate in exploring non-traditional approaches such as the debt-local currency swap programme I have proposed in their recovery efforts.

Trade-offs will have to be made between using scarce resources on prosecutions and punishment that hold out no promise of recapturing embezzled wealth or focusing these limited resources to recover and repatriate the peoples' money.

In his January 19, 2006 declaration, the US ambassador to Cameroon was of the opinion that the implementation of Article 66 of the Cameroon constitution (which requires that high-ranking state officials declare their assets at the beginning and end of their tenure) might very well be the solution to endemic corruption in Cameroon. Do you share his optimism?

I have quite a different take on these disclosure obligations. Article 66 is a toothless bulldog and sooner or later, Cameroonians will come to realize that reliance on it is misplaced for several reasons. In the first place, the article is silent on the scope of disclosure expected: is it only assets owned by the public official directly, or indirectly as well?

Does the scope of disclosure require the official to divulge information about assets, including investments, bank accounts, pensions and other intangibles, as well as real property and major items of personal property in Cameroon and in other countries? Who, or which agency should these declarations be directed and will an oral deposition suffice? Arguably, a new member of government can discharge his public disclosure burden by declaring his assets to a few journalists summoned to his parlour for a 'press conference'!

Article 66 also fails to spell out the penalties, if any, for false or misleading disclosures. The intent behind this type of disclosure requirements is to deter official corruption and to identify and exclude corrupt officials. This objective cannot be attained when provision is not made for penalties for failure to disclose as required, or for making false or misleading disclosure, that are severe enough to act as a significant deterrent.

An example of a disclosure requirement with teeth can be found in the 1992 Constitution of Ghana which requires an identified class of public servants to submit to the Auditor-General, a written declaration of all property or assets owned by, or liabilities owed by him, whether directly or indirectly, before taking office, at the end of every four years; and at the end of his term of office.

Finally, Article 66 provides no mechanisms for verifying these disclosures. Nothing prevents a newly-appointed government Minister from declaring assets of FCFA 800 million francs CFA that he clearly does not have, but which he hopes to fleece from his Ministerial budget while in office and then to declare that amount when he is "called to other duties"!

A cursory look at ongoing international attempts at stemming state corruption gives the impression that there is too much focus on the recovery and repatriation of embezzled funds, and very little on establishing national mechanisms for tackling embezzlement before it happens. Shouldn't national preventive mechanisms take precedence over international recovery efforts?

On the contrary. Take a look at the 1996 Inter-American Convention Against Corruption, the 2002 African Union Convention for Preventing and Combating Corruption and the 2004 U.N. Convention Against Corruption; they all contain elaborate provisions for tackling official corruption both at the front-end (prevention and punishment) and at the back-end (assets recovery).

Many municipal penal statutes also proscribe the offense of illicit enrichment and some, like the Brazilian statute, go as far back as the 1950's. Prevention and punishment do not have to take priority over recovery and repatriation because they go hand-in-hand.

With few qualified exceptions (Singapore, Hong Kong, Mauritius, Botswana, post-Abacha Nigeria) national preventive legislation has not succeeded in stemming the tide of capital flight, especially capital of illicit origin.  Therefore, recovery efforts must be engaged to recapture this wealth.

Back to Cameroon's anti-corruption campaign; what in your opinion will constitute a clear indication, if not irrefutable evidence, that this umpteenth anti-corruption drive is for real?

Government needs to take a number of concrete steps to convince a public that has become jaded with so many unfulfilled promises that this time, it means business. First, there should be more arrests of current and former government Ministers who have engaged in the systematic pillaging of national wealth, going as far back as the mid-1980's when Mr. Biya announced his policy of rigour and moralization.

Criminal prosecutions, followed by punishment, where guilt is established, should follow this. Second, government must ratify without further delay, the AU and UN anti-corruption instruments and invoke their mutual legal assistance and technical cooperation provisions to secure international assistance to recapture embezzled funds that have been transferred to foreign banks.

Here, government should take note that recovery efforts are elusive and time consuming. It has taken 15 years, with the judicial cooperation of several foreign governments, for successive Philippine governments to recover $600 million from the estate of Ferdinand Marcos, and this amount is merely interest earned on the $5 billion, which lies in escrow in the Philippines National Bank.

An estimated $30 billion in a Swiss bank is still collecting interest beyond the reach of the Philippines authorities. The same is true for the Obasanjo government, whose efforts to recover the estimated $3 billion allegedly stolen by Gen. Sani Abacha succeeded only in bringing in $700 million.

Finally, government must confront the most difficult of all its problems, that is, the root causes of corruption in our country. Here, the President needs to articulate a national strategy to prevent and combat this pestilence. Lessons learned from similar efforts in other corruption-prone countries suggest that this war is a sustained and protracted affair and likely to span successive governments. Winning it requires time, patience and determination; a domain our government has shown little mastery of.

A common thread in your writings is that corruption by high-ranking government officials is a violation of the fundamental human rights of citizens in developing countries. What is your response to those who argue that this is pushing the concept of human rights too far because corruption is essentially a non-violent crime?

One could say the same for the right to freedom of thought which is also a non-violent crime. In the event, I do not accept the characterization of grand corruption, as a non-violent crime because the violence it wrecks on the economies of victim states as well as their populations is undeniable.

When you live in a country where your government spends less than two percent, or a miserly $106 per capita, of the national budget for health service; where 30% of the population is unemployed, four of every 10 children under age five suffer from malnutrition; where for every 1,000 babies born, 101 die at birth, few ever get to visit a doctor since your country can only boast 1025 physicians; only 44 percent of the population has access to potable water; and your President criss-crosses the globe in a $30 million state-of-the-art airplane and maintains $700 million in several foreign bank accounts for that rainy day while his unemployed wife has access to a bank credit card with a $10,000 daily spending limit and their adult sons own multimillion mansions in the Cote d'Azur, it would be hard to convince this person that official corruption is a non-violent crime!

Most Cameroonians are totally unfamiliar with the frontline role you've played in the movement to establish international legislation to deal with state corruption. Can you briefly tell us about your work in this area?

We have devoted the last 16 years in trying to make the case a) that the conventional definition of corruption contained in a number of multilateral anti-corruption instruments fails to capture the acts of fraudulent enrichment engaged in by high-ranking constitutionally responsible officials nor does it convey in graphic terms the devastating effects of this conduct on the victim states and their populations, b) that the right to a corruption-free society is a fundamental human right, and c) therefore a breach of this right should be treated as a crime under the law of nations that entails individual responsibility and punishment and subject to universal jurisdiction.

Finally, what do you think the future holds for Cameroon, given the country's current socio-political situation and the "balance of power" between the Biya regime and the divided and weakened opposition?

What President Biya is trying to do now is exactly what many Cameroonians had hoped a successor SDF-led government would do when it accedes to power. Unfortunately, the SDF is itself now mired in its own manure of corruption to make it an unlikely champion of moral probity, incorruptibility, accountability and transparency, now or in the immediate future. So, if the present exercise is simply a ploy to get the IMF, the World Bank and other external partners off the Government's back, then, we are in for some very rough days ahead!

Dibussi Tande maintains the Cameroon News weblog, "Scribbles from the Den" at www.dibussi.com

Comments

[G T Tebeck]

Many thanks Prof Kale, You captured it right. We need more people of your thinking for this country to move forward. To me corruption is a multi-voilation of human rights cos it indirectly violates more than just one of the foundamental human rights as you have just explained. Its time every one open their eyes and see that. God bless you.

[wallyman]

Proff Kale Ndiva you are a Proff indeed.may your dreams come true soon.ride on and may God give you more wisdom.

[Ashu Loveline]

Great job.
This is a true fighter and not the likes of Monono the new board registrar.
Great job.

[dango tumma]

GOOD TO HAVE A SON OF SOUTHERN CAMEROONS
DOING THE RIGHT THING, BUT PROF, MUST
TAKLE THE ROOT CAUSE OF CORRUPTON,
BY ITSELF. WHICH IS

A,, POWER HUNGRINESS( FROM THE TOP, FRENCH
STRANGE HOLD IN AFRICA)
B, GREED,
D. HATRED.
E.ILLETRACY OF WHAT IS ABSOLUTE GOOD FOR SOCIETY
D. THE THE COLONISATION OF SOUTHERN CAMEROON

[Ewane]

Loveline,
I think the comments you make in this forum are very irritating. You are not obliged to comment on most of the articles posted on this site. What’s wrong in making Monono the Registrar of GCE Board? I personally think that taking up a post like this is a kind of task and not enjoyment as you so think. Since you were born what have you done for which people can live to remember you? From the comments people are making one can conclude without any fear of contradiction that Monono is a force to recon with. You should always be constructive in writing and stop behaving as an over-due schoolgirl.

[dango tumma]

disagree with prof kale, on rewarding the thiefs of ONDO and siewe, to cashin
their foreign stashed billions in LOCAL
BEAC BANK, IN in order to creat industry, employment etc. why reward, them for any reason? why not transfer all foreign stashed moneys into a (TRUST FUND)
MANGED BY JP MORGAN OR SOME ATTORNEY IN
NEWYORK SOLELY FOR THE BUILDING OF SOUTHERN CAMEROONS AND LA REPUBLIQUE DU CAMEROUN, SEPERATELLY, HOW COME PROFESSOR
KALE, DOESNT SEE THE NEED FOR THE PEOPLE
OF NDOP OR KUMBA TO BE ABLE TO BOARD A PLANE IN KUMBA AND GO STRAIGHT TO WASHINGTON WITHOUT HAVEN TO GO TO DOUALA AND YAOUNDE?. ALL THESE BILLIONS ALL, CAMES
FROM ANGLOPHONE CAMEROON TO START WITH.
I MEAN SONARA, PETROLEUM, CDC. TOLE TEA,
AGRIBUSINESS ETC, WHY NOT FOCUS ON FUNDING
AND EMPOWERING THE LOCAL PEOPLE TO MANAGE
AND IMPLEMENT THE BUILDING OF SUPER HIGHWAYS, SEA AND AIRPORT, MEGA CITIES,
RAIL WAYS, INDUSTRIE, ETC, AND FUNDED FROM
THESE BILLIONS STOLEN FROM THEM ,THAT ARE NOW IN THE HANDS OF PARIS CLUB ILLEGALLY?
THIS MY PLAN WILL WORK IF PROF KALE,
INVOLVES AMERICANS FOR HELP IN TRACKING
FROZENING AND TRANSFERING ALL THESE FUNDS INTO A TRUST FUND, FOR BOTH CAMEROUNS.

t

[epizi]

Hi Kale (Professor)
Accept my respect for your unique sense to creat amongst the many I know in the oposition.I want to believe it is all because of your long standing reputation in research and academics.Woking every day with development around the globe, deserves nothing lesser than what you express.I find alot of feebble minds in this forum,such cameroonians who think pointing a pistol or detaining embezzlers is the best decision.Sure you can easily distinguish those who have dare to read about other countries that might have been in the position we are now and the ways they employed to come out.I find it even more a dellima from the point of making this idea understood by the masses and then, the level of implementation.A real Patriot must be right to see the embezzled funds recovered than seeing the emblezzlers die without retriving this ill gotten wealth.Infact I feel so secured that you have a mastery of what you had proposed in your earlier article and if there is a need to decide the camp I belong to, then I am fully in support of your school of thought.I hope many can actually understand the flow of reasoning in your thoughts otherwise it will be more of a battle to make it accepted than to implement it.Actually retriving embezzled funds in not just an issue of telling the emblezzlers to bring even with pressure as hot as fire.One will not doubt the position of the instutions keeping it and how ready they are to give it freely.In fact we are condemn to be very diplomatic dealing with this issue if we need the funds back. Unfortunately where to reinvest the funds is another bone of contention, but freely as a Cameroonian the need for some basic investments is paramount than where it is located.

Therefore giving this thought the widest publicity is very necessary,as ussual you do not find many reacting here because it is a political free approach of helping our fatherland and I think to succeed we must adopt such stand.

I apply to be admitted therefore in your school of thought,I dearly will want to reason like you in the nearest future.

[Ejike Mouluh]

I strongly disagree with Prof. Kale's suggestion for Cameroon to launder stolen money. All ex-ministers, directors, ministers and president(s) are in our archive for a shock treatment. All their excess assets will be ceased, come one day.

No compromise with thieves, however long it takes.

[Fritzo]

It is rather unfortunate that i just came across this master piece just now after this long while,but not withstanding prof u are just great.I am very sure this is one of the very best of ways to deal with issues like this,taking into considerations the laws passed by the Swiss government in connection with stolen wealth or money banked in their country,with such laws in place it will be pretty hard to recover the wealth.So prof i buy and share your ideas.No doubt you are a great prof.

[loan modification attorney]

It's an issue that affects the government. They have to be well aware of the confrontations.

[ballack]

indeed, prof i share your idea that stakeholder assaerts should be assess before they becoming members of government. but i wish to ask this question was the properties of the head of state checked if no then i think that should be done now. since he is sending all the high rank he should equally know that his own day is caming