varney truth corruption tunisia

8/7/2019 Varney Truth Corruption Tunisia

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1 Addressing the Past, Building the Future, Justice in Times of Transition, Tunis, 15 April 2011, H Varney, ICTJ

Addressing the P ast, Building the Future Internation al ConferenceTunis, Tunisi a

April 14-15 , 2011

Session 5: Truth as Justice: A Comparative Overview of Truth-Seeking Processes

TRUTH COMMI SSIONS AND CORRUPTION

Speech by Howard Varney

Very few mandates setting up truth commissions have required corruption to be investigated.Most only require an inquiry into violations of human rights. My colleague, Ruben Carranza, haswritten that:

I agree with this view. Some commissions havetackled corruption even though it was not specifically mandated in the enabling law or decree.

Corruption has a role to play in the work of truth commission when corruption is identified as acause of conflict. The following findings made by a truth commission a few years ago provideexamples why it may be necessary for a commission to deal with corruption.

1. By the start of the conflict, the nation had been stripped of its dignity. Institutionalcollapse reduced the vast majority of people into a state of deprivation. Governmentaccountability was non-existent. Political expression and dissent had been crushed.Democracy and the rule of law were dead. By the start of the conflict the country was adeeply divided society and full of the potential for violence. It required only the slightestspark for this violence to be ignited.

2. The Commission finds that the central causes of conflict were endemic greed, corruptionand nepotism that deprived the nation of its dignity and reduced most to a state of poverty.

3. The entire economy was undermined by grave mismanagement. Selfish leadership bredresentment, poverty and a deplorable lack of access to key services.

4.

Successive regimes became increasingly impervious to the wishes and needs of themajority. Successive political elites plundered the nations assets at the expense of thenational good.

5. Key stakeholders in society, including students, youths, and those in the provinces, weremarginalised by the political elite. Ultimately, these marginalised groups played acentral role in initiating resistance.


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6. The Commission finds that those in leadership in government, public life and civil societyfailed the people of Sierra Leone. The period between independence and the start of the conflict represents a colossal failure of leadership at all levels of public life.

7. The Commission finds that many of the causes of the conflict that prompted thousandsof young to take action have still not been adequately addressed. High among thesefactors are elitist politics, rampant corruption, nepotism, and bad governance. They arepotential causes of conflict, if they remain unaddressed.

These findings were made by the Truth Commission for Sierra Leone. You may be forgiven forthinking that such findings apply with equal force to many other countries emerging fromconflict.

Addressing the causes

That Commission felt it important to make recommendations that addressed these causes of conflict. It accordingly made recommendations to promote good governance and combat

corruption. It noted that there was no option but to address bad governance and corruptionhead on. The report remarked that it would not be an overstatement to say that the survival of the nation depends on the success of society in confronting these issues.

In respect of promoting good governance the Commission called on all of those involved in thepublic sector to usher in a new culture of ethics and service. It called upon leaders at all levelsof society to commit themselves to new principles of leadership, referred to as principles of

Committed Leadership. Other recommendations dealt with access to state information andthe need for just and fair administrative action by public officials.

In regard to its findings on corruption the commission called on all to fight the scourge of corruption which saps the life-force of the nation. It recommended that senior members of government be required to disclose their assets. It proposed that the Anti-CorruptionCommission be permitted to pursue its own prosecutions, in order to be free of any scope forpolitical interference. It called for a United Front against Corruption, involving civil society,business, government and the donor community.

While the government that first received these recommendations in 2004 chose to ignore them,the then opposition party included the implementation of key recommendations as part of itselection manifesto in 2007. That party won the 2007 elections. It has commencedimplementing certain recommendations, most notably the requirement for public officials todisclose their assets; and the empowering of the anti corruption commission to institute its ownprosecutions. Sierra Leone has a very long way to go, but is already reaping certain benefits.

Several prosecutions senior pubic officials have commenced including steps against a cabinetminister and the former public protector.

Expediency

There are examples where corruption has been included in the mandates of commissions forexpedient or mischievous purposes. In Kenya the law passed in 2008 setting up the Kenyantruth commission empowered the commission to investigate economic crimes, including grand


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corruption and the exploitation of natural or public resources. However, it also provided for anamnesty process in which the commission could recommend persons responsible for crimes of greed, including grand corruption, for amnesty. This was so even though no political motivecould be shown. (In South Africa only violations of human rights which were politicallymotivated qualified for amnesty). As an aside, the chair of that commission, after more than ayear in office, was forced to step down recently pending an inquiry into his suitability to holdoffice. Amongst other charges, it is alleged that he acquired substantive tracts of state landthrough dubious deals.

In Pakistan the National Reconciliation Ordinance of 2007 provided for cases pertaining toordinary and financial crimes, committed by the accused and holders of public office, whoindulged themselves in corrupt practices, to be declared withdrawn or terminated. In 2009 thePakistan Supreme Court declared the law unconstitutional as it violated the equal protectionclause and undermined the rule of law. This was so even though the law sought the recoveryand return of stolen public funds. In particular it found that the law did not serve the claimedpurpose of national reconciliation.

Conclusion

The conducting of inquiries and hearings into human rights violations, economic transgressions,corruption and the abuse of power are legitimate functions for a truth commission.

It is also proper for a truth commission to make recommendations for the purpose of promotingaccountability and addressing corruption and bad governance. So a commission couldrecommend that certain individuals be subjected to further investigation or vetting, and if foundresponsible for corruption, to be removed or barred from public office.

In my view it would be highly inappropriate for a truth commission to offer leniency or amnestyfor crimes of greed, even if it involves the restitution of stolen funds. This is not the job of atruth and reconciliation commission. It is the job of criminal law enforcement and moreparticularly standing anti-corruption commissions to offer incentives under the criminal law forthe recovery of funds.

varney truth corruption tunisia

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