Interviewed by Dibussi Tande (Part I)
Ndiva Kofele-Kale, Professor of Public International Law at Southern Methodist University in Dallas, Texas, is a leading scholar on official 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 with Dibussi Tande, Prof.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.
Question: What is your preliminary assessment of the ongoing anti-corruption campaign in Cameroon?
Answer: 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 lay man’s terms?
I will try. 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 program, the Odong 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 …
I take their point. 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. The lessons learnt from 40 years of recovery efforts demonstrate the limitation of conventional legal methods in the war against grand corruption. 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 program I have proposed in their recovery efforts. Trade-offs will have to be made between using scarce resources on prosecutions and punishment which hold out no promise of recapturing embezzled wealth or focusing these limited resources to recover and repatriate the peoples’ money. In the final analysis, Cameroonians will have to make this call.
In his January 19th 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 bull-dog 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 parlor 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. The provision makes failure to declare or knowingly making false declaration a punishable offence.
Finally, Article 66 provides no mechanisms for verifying these disclosures. Nothing prevents a newly-appointed government minister from declaring assets of 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”!
To be continued...