Robert McBride has been appointed the new head of the Independent Police Investigative Directorate (IPID), the police ministry said on Friday.
"Minister of Police Nathi Mthethwa today officially announced the appointment of Mr Robert McBride as the new executive director of the IPID," spokesperson Zweli Mnisi said in a statement.
His appointment would be effective from Monday.
The IPID has been without a permanent head for more than a year following the departure of Francois Beukman.
McBride was part of an Umkhonto we Sizwe group that bombed the Why Not Restaurant and Magoo's Bar in Durban on 14 June 1986.
Three people were killed and 69 others injured in the explosion. He was captured and convicted, and sentenced to death.
In 1992, he was released after his actions were classified as politically motivated. He was later granted amnesty at the Truth and Reconciliation Commission.
After a spell as a diplomat, McBride became head of the Ekurhuleni metropolitan police, but lost his job after he was charged with drunk driving and defeating the ends of justice.
In 2011 he was jailed for two years by a Pretoria magistrate, but successfully appealed.
In late January, the ANC outvoted opposition parties on Parliament's police portfolio committee who opposed McBride's IPID nomination, largely because of his past brushes with the law.
Mnisi said: "Minister Mthethwa wishes Mr McBride all the best in his new role and remains confident that, with the support IPID management and staff, they will steer IPID to become an effective and efficient oversight institution within the criminal justice system."
Mthethwa thanked the former acting executive director, Koekie Mbeki, for leading the IPID over the last year-and-a-half.
Source: News24
Friday, February 28, 2014
Monday, February 17, 2014
Board Investigations and the Curse of the Mummy’s Tomb – Part I
On this day in 1923, the tomb of King Tut was opened. It created a worldwide stir that has in many ways continued down into the 21st century. Clearly, the boy ruler influenced Steve Martin , (How’d you get so funky?, Funky Tut). Moreover, when the King Tut exhibit first toured the US in the 1970s, it sold out everywhere that it went. And, of course, there was the Curse of the Mummy’s Tomb, which led to some great Universal classic horror pictures. This curse may have killed the dig’s benefactor, Lord Carnarvon who died just months after entering the tomb in November 1923, but the archeologist who discovered King Tut, Howard Carter, seemingly outlived the curse, dying at the age of 64 on the eve of World War II.
I thought about the techniques employed by these two archeologists in the Curse of the Mummy’s Tomb when I read an article in the Corporate Board magazine, entitled “Successful Board Investigations” by David Bayless and Tammy Albarrán, partners in the law firm of Covington & Burling LLP. Why the Curse of the Mummy’s Tomb? It is because if a Board of Directors does not get an investigation which it handles right, the consequences can be quite severe. Over the next two posts I will explore the article by Bayless and Albarrán. Today in Part I, I will review the author’s five key objectives, which they believe a board must pursue to ensure a successful investigation. Tomorrow. in Part II, I will review the authors seven considerations to facilitate a successful board investigation.
The authors recognize that the vast majority of investigations will be handled or directed by in-house counsel. However, if and when such an investigation is needed, it is critical that it be handled with great care and skill. The authors note that “While this task is fraught with peril, there are a number of steps a board can take to ensure that the investigation accomplishes the board’s goals, which will enable it to make informed decisions, and withstands scrutiny by third parties” because it is this third party scrutiny, in the form of regulators, government officials, judges/arbitrators or plaintiffs’ counsel in shareholder actions, who will be reviewing any investigation commissioned by a Board of Directors. The authors believe that there are five key goals that any investigation led by a Board of Directors must meet. They are:
Thoroughness - The authors believe that one of the key, and most critical, questions that any regulator might pose is just how thorough is an investigation; to test whether they can rely on the facts discovered without having to repeat the investigation themselves. Regulators tend to be skeptical of investigations where limits are placed (expressly or otherwise) on the investigators, in terms of what is investigated, or how the investigation is conducted. This question can be an initial deal-killer particularly if the regulator involved views an investigation insufficiently thorough, its credibility is undermined. And, of course, it can lead to the dreaded ‘Where else’ question.
Objectivity - Here the authors write that any “investigation must follow the facts wherever they lead, regardless of the consequences. This includes how the findings may impact senior management or other company employees. An investigation seen as lacking objectivity will be viewed by outsiders as inadequate or deficient.” I would add that in addition to the objectivity requirement in the investigation, the same must be had with the investigators themselves. If a company uses its regular outside counsel, it may be viewed with some askance, particularly if the client is a high volume client of the law firm involved, either in dollar amounts or in number of matters handled by the firm.
Accuracy - As in any part of a best practices anti-corruption compliance program, the three most important things are Document, Document and Document. This means that the factual findings of an investigation must be well supported. For if the developed facts are not well supported, the authors believe that the investigation is “open to collateral attack by skeptical prosecutors and regulators. If that happens, the time and money spent on the internal investigation will have been wasted, because the government will end up conducting its own investigation of the same issues.” This is never good and your company may well lose what little credibility and good will that it may have engendered by self-reporting or self-investigating.
Timeliness - Certainly in the world of Foreign Corrupt Practices Act (FCPA) enforcement, an internal investigation should be done quickly. This has become even more necessary with the tight deadlines set under the Dodd-Frank Act Whistleblower provisions. But there are other considerations for a public company such as an impending Securities and Exchange Commission (SEC) quarterly or annual report that may need to be deferred absent as a timely resolution of the matter. Lastly, the Department of Justice (DOJ) or SEC may view delaying an investigation as simply a part of document spoliation. So timeliness is crucial.
Credibility - One of the realities of any FCPA investigation is that a Board of Directors led investigation is reviewed after the fact by not only skeptical third parties but also sometimes years after the initial events and investigation. So not only is there the opportunity for Monday-Morning Quarterbacking but quite a bit of post event analysis. So the authors believe that any Board of Directors led investigation “must be (and must be perceived as) credible as to what was done, how it was done, and who did it. Otherwise, the board’s work will have been for naught.”
To help manage these five issues the authors have seven tangible considerations they suggest that a Board of Directors follow to help make an investigation successful. Tomorrow I will review and scrutinize these seven considerations.
Source: FPCA Compliance and Ethics Blog by Thomas Fox.
Thomas Fox has practiced law in Houston for 30 years. He is now an Independent Consultant, assisting companies with anti-corruption and anti-bribery compliance and international transaction issues. He was most recently the General Counsel at Drilling Controls, Inc., a worldwide oilfield manufacturing and service company. He was previously division counsel with Halliburton Energy Services, Inc. where he supported Halliburton’s software division and its downhole division. Tom is the author of the award winning FCPA Compliance and Ethics Blog and the international best-selling book “Lessons Learned on Compliance and Ethics”. His second book, “Best Practices Under the FCPA and Bribery Act” was released in April, 2013. He recently released his first eBook, “GSK In China: A Game Changer in Compliance”. He writes and lectures across the globe on anti-corruption and anti-bribery compliance programs.
I thought about the techniques employed by these two archeologists in the Curse of the Mummy’s Tomb when I read an article in the Corporate Board magazine, entitled “Successful Board Investigations” by David Bayless and Tammy Albarrán, partners in the law firm of Covington & Burling LLP. Why the Curse of the Mummy’s Tomb? It is because if a Board of Directors does not get an investigation which it handles right, the consequences can be quite severe. Over the next two posts I will explore the article by Bayless and Albarrán. Today in Part I, I will review the author’s five key objectives, which they believe a board must pursue to ensure a successful investigation. Tomorrow. in Part II, I will review the authors seven considerations to facilitate a successful board investigation.
The authors recognize that the vast majority of investigations will be handled or directed by in-house counsel. However, if and when such an investigation is needed, it is critical that it be handled with great care and skill. The authors note that “While this task is fraught with peril, there are a number of steps a board can take to ensure that the investigation accomplishes the board’s goals, which will enable it to make informed decisions, and withstands scrutiny by third parties” because it is this third party scrutiny, in the form of regulators, government officials, judges/arbitrators or plaintiffs’ counsel in shareholder actions, who will be reviewing any investigation commissioned by a Board of Directors. The authors believe that there are five key goals that any investigation led by a Board of Directors must meet. They are:
Thoroughness - The authors believe that one of the key, and most critical, questions that any regulator might pose is just how thorough is an investigation; to test whether they can rely on the facts discovered without having to repeat the investigation themselves. Regulators tend to be skeptical of investigations where limits are placed (expressly or otherwise) on the investigators, in terms of what is investigated, or how the investigation is conducted. This question can be an initial deal-killer particularly if the regulator involved views an investigation insufficiently thorough, its credibility is undermined. And, of course, it can lead to the dreaded ‘Where else’ question.
Objectivity - Here the authors write that any “investigation must follow the facts wherever they lead, regardless of the consequences. This includes how the findings may impact senior management or other company employees. An investigation seen as lacking objectivity will be viewed by outsiders as inadequate or deficient.” I would add that in addition to the objectivity requirement in the investigation, the same must be had with the investigators themselves. If a company uses its regular outside counsel, it may be viewed with some askance, particularly if the client is a high volume client of the law firm involved, either in dollar amounts or in number of matters handled by the firm.
Accuracy - As in any part of a best practices anti-corruption compliance program, the three most important things are Document, Document and Document. This means that the factual findings of an investigation must be well supported. For if the developed facts are not well supported, the authors believe that the investigation is “open to collateral attack by skeptical prosecutors and regulators. If that happens, the time and money spent on the internal investigation will have been wasted, because the government will end up conducting its own investigation of the same issues.” This is never good and your company may well lose what little credibility and good will that it may have engendered by self-reporting or self-investigating.
Timeliness - Certainly in the world of Foreign Corrupt Practices Act (FCPA) enforcement, an internal investigation should be done quickly. This has become even more necessary with the tight deadlines set under the Dodd-Frank Act Whistleblower provisions. But there are other considerations for a public company such as an impending Securities and Exchange Commission (SEC) quarterly or annual report that may need to be deferred absent as a timely resolution of the matter. Lastly, the Department of Justice (DOJ) or SEC may view delaying an investigation as simply a part of document spoliation. So timeliness is crucial.
Credibility - One of the realities of any FCPA investigation is that a Board of Directors led investigation is reviewed after the fact by not only skeptical third parties but also sometimes years after the initial events and investigation. So not only is there the opportunity for Monday-Morning Quarterbacking but quite a bit of post event analysis. So the authors believe that any Board of Directors led investigation “must be (and must be perceived as) credible as to what was done, how it was done, and who did it. Otherwise, the board’s work will have been for naught.”
To help manage these five issues the authors have seven tangible considerations they suggest that a Board of Directors follow to help make an investigation successful. Tomorrow I will review and scrutinize these seven considerations.
Source: FPCA Compliance and Ethics Blog by Thomas Fox.
Thomas Fox has practiced law in Houston for 30 years. He is now an Independent Consultant, assisting companies with anti-corruption and anti-bribery compliance and international transaction issues. He was most recently the General Counsel at Drilling Controls, Inc., a worldwide oilfield manufacturing and service company. He was previously division counsel with Halliburton Energy Services, Inc. where he supported Halliburton’s software division and its downhole division. Tom is the author of the award winning FCPA Compliance and Ethics Blog and the international best-selling book “Lessons Learned on Compliance and Ethics”. His second book, “Best Practices Under the FCPA and Bribery Act” was released in April, 2013. He recently released his first eBook, “GSK In China: A Game Changer in Compliance”. He writes and lectures across the globe on anti-corruption and anti-bribery compliance programs.
Monday, February 3, 2014
Officials cock a snook at Land Claims Judge
The Matabane Community of Waterberg in the Limpopo Province and landowners scored a significant Land Claim's Court victory three months ago. Both groups have been in an eighteen-year struggle for compensation. The Judge hearing their case berated Land Claims officials and the State Attorney for dragging their heels.
The community had sought restitution of the land that had been expropriated from them. It comprised a number of farms in the Waterberg district.
Officials remiss and arrogant
The Restitution of Land Rights Act came into operation in 1994, "To provide for the restitution of rights in land to persons or communities dispossessed of such rights after 19 June 1913 as a result of past racially discriminatory laws or practices." The Matabane Community fall into this group.
Judge Eberhard Bertelsmann said that in effecting redress, the law expects Land Claims officials to, "do anything necessarily connected with, or reasonably incidental to the expeditious finalisation of claims." It was clear from the evidence before the Land Claims Court that officials had been remiss in their handling of the Matabane Community's case and arrogant in their dealings with the court. Their "remissness", as the Judge described it, was not limited to this matter. Evidence before the court suggested that it was part of a bigger malaise.
Thousands of claims not yet finalised
Judge Bertelsmann said that is was: "disconcerting that between seven and nine thousand claims have not remotely been finalised almost twenty years after the Land Claims Act was passed." "One could be forgiven for assuming that under these circumstances land claims officials would be clamouring at the gates of Court insisting upon speedy resolutions of outstanding matters."
In the matter before court, land claims officials had early in 2007 established that the landowners, who were to be deprived of their farms, had rejected adjudication of their compensation claim through the Land Claims Commission's internal processes. They insisted that the matter be taken to court. Land Claims Court proceedings could only begin once the Commission has issued a Notice of Referral. This was not done.
Dragging of heels
Towards the end of 2007 the landowners obtained a court order compelling the Commission to issue the Notice of Referral. The Commission, unhappy with the Court's directive, unsuccessfully sought leave to appeal it. The Notice of Referral was finally issued late in May 2009. It was defective in a number of respects. Judge Bertelsmann: "There is no explanation on the papers why it took almost a year to take this step. Even less is there an explanation for the failure to fully include in such notice all information required by the Act and the Rules."
Hearings in the Land Claims Court - a court which has the same stature as the High Court - are preceded by a pre-trial conference so that the parties may agree on the further conduct of the case and limit the number of issues to be adjudicated upon. There were seven pre-trial conferences. The first took place in June 2011 and the last in May 2012. Bertelsmann found that this process had taken an unreasonably long time.
Judicial displeasure
Judge Bertelsmann: "The Commission and its functionaries have been remiss in the performance of their duties to advance the claimants' case as speedily as possible."
In the July 2011 pre-trial conference the defendants' attorney gave the Commission the addresses of all interested parties by so that they could be notified that the matter was heading for court and a decision might be made affecting their rights. At that pre-trial conference the Commission undertook to file at court a certificate relating to competing land claims and the State Attorney - the law firm representing the Commission - undertook to notify the interested parties. They all agreed that this would be done by 19 August 2011. This agreement had the effect of a court order.
By September 2011, when the third pre-trial conference took place, it became apparent that the undertakings by the Commission and the State Attorney had not been honoured. According to the judgment, the Commission was directed by the court to file an affidavit explaining how all of the court's previous directives had been dealt with. If the directive had not all been complied with, the Commission was directed to explain under oath:
A costs order de bonis propriis is rarely made. It is a radical order, punitive in nature and conveys the court's disapproval of substantial misconduct by a litigant. The person against whom such an order is made has to pay the costs out of their own pocket. In the case of a state official, the relevant government department would not be held liable to pay the costs order on behalf of such an official.
The lamentable disregard for the Court's orders continued. Judge Bertelsmann: "In spite of this expression of judicial displeasure at the continued failure to comply with the Courts orders, no effect was given to them."
This Act makes provision for claimants lawyers to be paid by the Commission during the restitution process. Funding had been approved years before, but no money had been forthcoming. The Judge noted that this sort of failure is a factor that adversely impacts upon litigants' constitutional right of access to justice.
Constitutional litigation
The Judge observed that, "restitution of land rights is essentially constitutional litigation."
"The Commission is an Organ of State created for the very purpose of safeguarding the constitutional rights of claimants and landowners alike, who both find themselves in litigation with the State and whose interests and competing claims should be treated with due diligence and respect."
Contempt of Court
Judge Bertelsmann considered the defendants' request that a number of Land Claims officials be held in contempt of Court. "Attention must first be paid to the explanation proffered by the State parties for their remissness," he said. He singled out Mr Richard Mulaudzi, a Legal Administrative Officer in the Office of the Regional Land Claims Commissioner for the Limpopo Province.
Mulaudzi, in an affidavit, filed outside of the time limits set by the court, shared his personal views with Judge Steve Kahanovitz, the Judge who heard an earlier aspect of this claim: "I would not serve much purpose for the Commissioners to be deviated by the Court to appear. I did not find any compelling reason [given by Judge Kahanovitz] that necessitated that the Commissioner should be ordered to attend."
"Mr Mulaudzi's remarks regarding the need for the Commissioners to obey the Court's instruction are grossly inappropriate and display an extremely and highly regrettable attitude towards the Court's dignity and authority. Mulaudzi's views regarding the need to obey a Court's order are contemptuous and display an extremely worrisome ignorance of his duties as a civil servant employed by an organ of State toward the Courts in general and toward this Court in this matter in particular. Orders of court must be complied with, regardless as to whether they are issued correctly or otherwise, until they are recalled or set aside. This is a fundamental principle of a democratic constitutional State," said Judge Bertelsmann.
Referring to the time early in 1998 when Louis Luyt subpoenaed former President Nelson Mandela to testify to the South African Rugby Football Union case, Bertelsmann wrote, "Mr Mulaudzi would be well advised to study the example of the first post-apartheid President of the Republic of South Africa."
The Judge was unable to hold the Land Claims officials in contempt on legal technical grounds.
He expressed the Court's displeasure by ordering the Regional Land Claims commissioner to pay the defendants costs on the scale as between attorney and client.
Judge Bertelsmann further ordered that the matter be brought to finality as soon as possible.
We will be following the further progress of this particular land claim. Watch this space.
Source: Politicsweb
The community had sought restitution of the land that had been expropriated from them. It comprised a number of farms in the Waterberg district.
Officials remiss and arrogant
The Restitution of Land Rights Act came into operation in 1994, "To provide for the restitution of rights in land to persons or communities dispossessed of such rights after 19 June 1913 as a result of past racially discriminatory laws or practices." The Matabane Community fall into this group.
Judge Eberhard Bertelsmann said that in effecting redress, the law expects Land Claims officials to, "do anything necessarily connected with, or reasonably incidental to the expeditious finalisation of claims." It was clear from the evidence before the Land Claims Court that officials had been remiss in their handling of the Matabane Community's case and arrogant in their dealings with the court. Their "remissness", as the Judge described it, was not limited to this matter. Evidence before the court suggested that it was part of a bigger malaise.
Thousands of claims not yet finalised
Judge Bertelsmann said that is was: "disconcerting that between seven and nine thousand claims have not remotely been finalised almost twenty years after the Land Claims Act was passed." "One could be forgiven for assuming that under these circumstances land claims officials would be clamouring at the gates of Court insisting upon speedy resolutions of outstanding matters."
In the matter before court, land claims officials had early in 2007 established that the landowners, who were to be deprived of their farms, had rejected adjudication of their compensation claim through the Land Claims Commission's internal processes. They insisted that the matter be taken to court. Land Claims Court proceedings could only begin once the Commission has issued a Notice of Referral. This was not done.
Dragging of heels
Towards the end of 2007 the landowners obtained a court order compelling the Commission to issue the Notice of Referral. The Commission, unhappy with the Court's directive, unsuccessfully sought leave to appeal it. The Notice of Referral was finally issued late in May 2009. It was defective in a number of respects. Judge Bertelsmann: "There is no explanation on the papers why it took almost a year to take this step. Even less is there an explanation for the failure to fully include in such notice all information required by the Act and the Rules."
Hearings in the Land Claims Court - a court which has the same stature as the High Court - are preceded by a pre-trial conference so that the parties may agree on the further conduct of the case and limit the number of issues to be adjudicated upon. There were seven pre-trial conferences. The first took place in June 2011 and the last in May 2012. Bertelsmann found that this process had taken an unreasonably long time.
Judicial displeasure
Judge Bertelsmann: "The Commission and its functionaries have been remiss in the performance of their duties to advance the claimants' case as speedily as possible."
In the July 2011 pre-trial conference the defendants' attorney gave the Commission the addresses of all interested parties by so that they could be notified that the matter was heading for court and a decision might be made affecting their rights. At that pre-trial conference the Commission undertook to file at court a certificate relating to competing land claims and the State Attorney - the law firm representing the Commission - undertook to notify the interested parties. They all agreed that this would be done by 19 August 2011. This agreement had the effect of a court order.
By September 2011, when the third pre-trial conference took place, it became apparent that the undertakings by the Commission and the State Attorney had not been honoured. According to the judgment, the Commission was directed by the court to file an affidavit explaining how all of the court's previous directives had been dealt with. If the directive had not all been complied with, the Commission was directed to explain under oath:
- why it should not be held in contempt of Court;
- why is should not be ordered to comply with all previous orders within ten further days;
- why its legal representatives [the State Attorney] should not be ordered to pay the costs of two days of pre-trial conference de bonis propriis on the scale of attorney and client. In the alternative, why the Commission should not pay such costs on the punitive scale."
A costs order de bonis propriis is rarely made. It is a radical order, punitive in nature and conveys the court's disapproval of substantial misconduct by a litigant. The person against whom such an order is made has to pay the costs out of their own pocket. In the case of a state official, the relevant government department would not be held liable to pay the costs order on behalf of such an official.
The lamentable disregard for the Court's orders continued. Judge Bertelsmann: "In spite of this expression of judicial displeasure at the continued failure to comply with the Courts orders, no effect was given to them."
This Act makes provision for claimants lawyers to be paid by the Commission during the restitution process. Funding had been approved years before, but no money had been forthcoming. The Judge noted that this sort of failure is a factor that adversely impacts upon litigants' constitutional right of access to justice.
Constitutional litigation
The Judge observed that, "restitution of land rights is essentially constitutional litigation."
"The Commission is an Organ of State created for the very purpose of safeguarding the constitutional rights of claimants and landowners alike, who both find themselves in litigation with the State and whose interests and competing claims should be treated with due diligence and respect."
Contempt of Court
Judge Bertelsmann considered the defendants' request that a number of Land Claims officials be held in contempt of Court. "Attention must first be paid to the explanation proffered by the State parties for their remissness," he said. He singled out Mr Richard Mulaudzi, a Legal Administrative Officer in the Office of the Regional Land Claims Commissioner for the Limpopo Province.
Mulaudzi, in an affidavit, filed outside of the time limits set by the court, shared his personal views with Judge Steve Kahanovitz, the Judge who heard an earlier aspect of this claim: "I would not serve much purpose for the Commissioners to be deviated by the Court to appear. I did not find any compelling reason [given by Judge Kahanovitz] that necessitated that the Commissioner should be ordered to attend."
"Mr Mulaudzi's remarks regarding the need for the Commissioners to obey the Court's instruction are grossly inappropriate and display an extremely and highly regrettable attitude towards the Court's dignity and authority. Mulaudzi's views regarding the need to obey a Court's order are contemptuous and display an extremely worrisome ignorance of his duties as a civil servant employed by an organ of State toward the Courts in general and toward this Court in this matter in particular. Orders of court must be complied with, regardless as to whether they are issued correctly or otherwise, until they are recalled or set aside. This is a fundamental principle of a democratic constitutional State," said Judge Bertelsmann.
Referring to the time early in 1998 when Louis Luyt subpoenaed former President Nelson Mandela to testify to the South African Rugby Football Union case, Bertelsmann wrote, "Mr Mulaudzi would be well advised to study the example of the first post-apartheid President of the Republic of South Africa."
The Judge was unable to hold the Land Claims officials in contempt on legal technical grounds.
He expressed the Court's displeasure by ordering the Regional Land Claims commissioner to pay the defendants costs on the scale as between attorney and client.
Judge Bertelsmann further ordered that the matter be brought to finality as soon as possible.
We will be following the further progress of this particular land claim. Watch this space.
Source: Politicsweb
Sunday, February 2, 2014
The politics of Mohammed Morsi's trial
The trial of Mohammed Morsi is a political trial designed by the Egyptian authorities to disgrace, delegitimise and dispose of the Muslim Brotherhood from the Egyptian political landscape. In a seminal study widely regarded as the most definitive account of the political trial, the Frankfurt school jurist Otto Kirchheimer regarded the political trial as a strategic mobilisation of the devices of law and justice to attain political ends.
"The classic political trial", Kirchheimer argued, is one in which the regime "attempt[s] to incriminate its foe's public behaviour with a view to evicting him from the political scene". Morsi's trial is a classic political trial designed to evict Morsi and his movement from the Egyptian political space.
Political trials are inevitable consequences of revolutions. From the English and French revolutions the 17th and 18th century to the Chinese and Iranian revolutions in the 20th century, the courtroom provided a convenient space for a ritualised elimination of former regimes.
Courts are mobilised not so much to eliminate the defunct regimes but to clarify, rationalise, justify and finally authenticate the revolution in an act of judgment. This is what is at work in Morsi's trial - the use of the courtroom to validate and authenticate a contested revolution. The court is not concerned with the determination of guilt and innocence so much as the rationalisation and justification of the events of July 3, 2013.
A revolution, not a coup d'etat?
The rhetoric of law and order, terrorism, and national security are all smokescreens for the power struggle between the Muslim Brotherhood and the military-backed regime. Beneath the rhetoric of terrorism and national security, there are the unfathomable purposes of history and power - a history of a botched revolution; conflicting accounts of what happened on 3 July 2013 (a coup d'etat, a counter-revolution or a second revolution); and the violence and crackdown that followed. The trial reduces these complex historico-political events into an either - or binary proposition that fits the self-referential logic of law.
The charges against Morsi and others - "incitement to violence" and "conspiracy to commit terrorism" - are charges carefully chosen to serve as fulcrums - narrative anchors in which to ground the regime's pedagogic stunts. The trial provides the event - the stage, the language, and the choreography - that lends bodily form, as Alexis De Tocqueville once noted, to the pedagogic enterprise.
As a truth-bearing platform with superior ability of image formation and saturation, the trial gives juridical reality and an appearance of neutrality and objectivity to the narrative of the state.
Within its own self-referential logic, the trial weighs the charges, assigns blame and attributes responsibility for the events alleged by the prosecution. It does not take account of the political and historical war that rages just beneath the invocation of its discourses. The objections of Morsi and his co-accused regarding the coup d'etat, the violence of the military, and the criminal origin of the regime are incompatible with "how the law thinks". For the purpose of criminal law, these are "objection[s] that cannot be heard": They do not signify within law's logic, its rationality, and modes of thought.
Order legitimation and power rationalisation
The immediate purpose of the trial is two-fold. Firstly, the trial is the most effective silencing device: By delegating the matter to a sympathetic judiciary, the regime silences all forms of criticism while it neutralises the political field from its adversary. Secondly, and perhaps most importantly, the trial has the aim of rationalising and justifying the coup d'etat by retroactively situating Morsi's defeat within a broader historical, political and moral narrative.
Using its truth-bearing discourses that allow it to create images that can neither be effaced nor rectified, the trial rationalises and justifies the power of the military regime. By presenting the adversary in the worst possible moral and political light, the trial both elaborates and consolidates a historico-political thesis in the image of the military and its civilian elites. What matters is not the validity or meaningfulness of the image so much as its effectiveness.
By accusing and judging the defendants for these crimes, the regime has a didactic goal that far exceeds the elimination of the Muslim Brotherhood: It aims to create a generative politico-historical thesis and an enduring image capable of instilling fear, prudence and obedience in potential foes. By projecting and amplifying a terrorist image of Morsi and his movement in the courtroom, a site of truth and justice supposedly elevated from the expediency of power and politics, the trial vindicates and authenticates a historico-political thesis in the image of the regime.
'I am your president. You have no legitimacy'
However, trials are not chess games that go according to pre-arranged rules. They can denaturalise, as to expose its flimsy facade of legality. In exercising the authority to judge its enemies, it submits itself to the accusation of its adversaries and the judgment of history. Just as the state uses the devices of law as political weapons, Morsi too can turn to these weapons.
The device is not equally available to the state and Morsi, but the deliberative framework of the trial and the principle of calling to account means that the defendant has a speaking position from which he can give an account of himself and the charges. Indeed, if Morsi's first day in court is any indication to go by, his trial could well be the trial of the military regime.
In his first court appearance, Morsi rejected the legitimacy and the authority of the court to try him. He argues that he is "the legitimate president" of the republic and accuses the military of a coup and treason. He challenges the court to justify how an illegal action - a coup d'etat - gives rise to a legal right that enables the criminals to judge an elected president: "This coup is a crime and treasonous, and the court is held responsible for it."
Morsi's defence will ask questions the prosecutor and the court cannot answer legally: According to what law, according to what rule of judgment and principle of justice do the courts and the social order they serve exercise the right to judge and punish an elected president? For Morsi and his supporters, "This is a military coup whose leaders must be put on trial in accordance with the constitution."
If an elected president can be called to the court to account for these acts, what of the military leaders who committed a treasonous offense? In other words, can the military bring Morsi to the court without calling the Revolution to the court? It is this question that law is ultimately incapable of answering without sliding into the abyss, to its origin in self-help. It is also here that the disjuncture between law and revolutions becomes most manifest, exposing the government and its courts to the judgement of history.
Regardless of how the court frames and ultimately settles these destabilising questions, Morsi's trial brings both the military and the revolution into the courtroom. The narratives and the verdict leave behind traces or remainders that cannot be integrated, or contained by the trial. It is this remainder, this excess, that exceeds the trial's ability to conceal and suppress, that returns to haunt Egypt and unsettle it from within.
Awol K Allo is a Fellow in Human Rights at the London School of Economics and Political Science.
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.
Source: Al Jazeera
"The classic political trial", Kirchheimer argued, is one in which the regime "attempt[s] to incriminate its foe's public behaviour with a view to evicting him from the political scene". Morsi's trial is a classic political trial designed to evict Morsi and his movement from the Egyptian political space.
Political trials are inevitable consequences of revolutions. From the English and French revolutions the 17th and 18th century to the Chinese and Iranian revolutions in the 20th century, the courtroom provided a convenient space for a ritualised elimination of former regimes.
Courts are mobilised not so much to eliminate the defunct regimes but to clarify, rationalise, justify and finally authenticate the revolution in an act of judgment. This is what is at work in Morsi's trial - the use of the courtroom to validate and authenticate a contested revolution. The court is not concerned with the determination of guilt and innocence so much as the rationalisation and justification of the events of July 3, 2013.
A revolution, not a coup d'etat?
The rhetoric of law and order, terrorism, and national security are all smokescreens for the power struggle between the Muslim Brotherhood and the military-backed regime. Beneath the rhetoric of terrorism and national security, there are the unfathomable purposes of history and power - a history of a botched revolution; conflicting accounts of what happened on 3 July 2013 (a coup d'etat, a counter-revolution or a second revolution); and the violence and crackdown that followed. The trial reduces these complex historico-political events into an either - or binary proposition that fits the self-referential logic of law.
The charges against Morsi and others - "incitement to violence" and "conspiracy to commit terrorism" - are charges carefully chosen to serve as fulcrums - narrative anchors in which to ground the regime's pedagogic stunts. The trial provides the event - the stage, the language, and the choreography - that lends bodily form, as Alexis De Tocqueville once noted, to the pedagogic enterprise.
As a truth-bearing platform with superior ability of image formation and saturation, the trial gives juridical reality and an appearance of neutrality and objectivity to the narrative of the state.
Within its own self-referential logic, the trial weighs the charges, assigns blame and attributes responsibility for the events alleged by the prosecution. It does not take account of the political and historical war that rages just beneath the invocation of its discourses. The objections of Morsi and his co-accused regarding the coup d'etat, the violence of the military, and the criminal origin of the regime are incompatible with "how the law thinks". For the purpose of criminal law, these are "objection[s] that cannot be heard": They do not signify within law's logic, its rationality, and modes of thought.
Order legitimation and power rationalisation
The immediate purpose of the trial is two-fold. Firstly, the trial is the most effective silencing device: By delegating the matter to a sympathetic judiciary, the regime silences all forms of criticism while it neutralises the political field from its adversary. Secondly, and perhaps most importantly, the trial has the aim of rationalising and justifying the coup d'etat by retroactively situating Morsi's defeat within a broader historical, political and moral narrative.
Using its truth-bearing discourses that allow it to create images that can neither be effaced nor rectified, the trial rationalises and justifies the power of the military regime. By presenting the adversary in the worst possible moral and political light, the trial both elaborates and consolidates a historico-political thesis in the image of the military and its civilian elites. What matters is not the validity or meaningfulness of the image so much as its effectiveness.
By accusing and judging the defendants for these crimes, the regime has a didactic goal that far exceeds the elimination of the Muslim Brotherhood: It aims to create a generative politico-historical thesis and an enduring image capable of instilling fear, prudence and obedience in potential foes. By projecting and amplifying a terrorist image of Morsi and his movement in the courtroom, a site of truth and justice supposedly elevated from the expediency of power and politics, the trial vindicates and authenticates a historico-political thesis in the image of the regime.
'I am your president. You have no legitimacy'
However, trials are not chess games that go according to pre-arranged rules. They can denaturalise, as to expose its flimsy facade of legality. In exercising the authority to judge its enemies, it submits itself to the accusation of its adversaries and the judgment of history. Just as the state uses the devices of law as political weapons, Morsi too can turn to these weapons.
The device is not equally available to the state and Morsi, but the deliberative framework of the trial and the principle of calling to account means that the defendant has a speaking position from which he can give an account of himself and the charges. Indeed, if Morsi's first day in court is any indication to go by, his trial could well be the trial of the military regime.
In his first court appearance, Morsi rejected the legitimacy and the authority of the court to try him. He argues that he is "the legitimate president" of the republic and accuses the military of a coup and treason. He challenges the court to justify how an illegal action - a coup d'etat - gives rise to a legal right that enables the criminals to judge an elected president: "This coup is a crime and treasonous, and the court is held responsible for it."
Morsi's defence will ask questions the prosecutor and the court cannot answer legally: According to what law, according to what rule of judgment and principle of justice do the courts and the social order they serve exercise the right to judge and punish an elected president? For Morsi and his supporters, "This is a military coup whose leaders must be put on trial in accordance with the constitution."
If an elected president can be called to the court to account for these acts, what of the military leaders who committed a treasonous offense? In other words, can the military bring Morsi to the court without calling the Revolution to the court? It is this question that law is ultimately incapable of answering without sliding into the abyss, to its origin in self-help. It is also here that the disjuncture between law and revolutions becomes most manifest, exposing the government and its courts to the judgement of history.
Regardless of how the court frames and ultimately settles these destabilising questions, Morsi's trial brings both the military and the revolution into the courtroom. The narratives and the verdict leave behind traces or remainders that cannot be integrated, or contained by the trial. It is this remainder, this excess, that exceeds the trial's ability to conceal and suppress, that returns to haunt Egypt and unsettle it from within.
Awol K Allo is a Fellow in Human Rights at the London School of Economics and Political Science.
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.
Source: Al Jazeera
Zuma buys time for Hawks
President Jacob Zuma and some of his ministers have asked the Constitutional Court for another 18 months to fix the legislation governing the Hawks, the unit that is meant to fight serious organised crime in South Africa.
Zuma, Justice Minister Jeff Radebe and Police Minister Nathi Mthethwa have indicated that they will appeal an order by the Western Cape High Court that found the act governing the Hawks still allows for too much political interference. This means the uncertainty over the Hawks, which replaced the Scorpions, will now drag into its sixth year. The Constitutional Court originally declared the act unconstitutional in 2011.
The current case follows the Western Cape High Court’s ruling in December, in favour of the Helen Suzman Foundation, which found that the police’s updated act was still unconstitutional.
The court ruled that adequate mechanisms to prevent political interference in the Hawks were still lacking.
The court gave Parliament a year to rectify this, but Zuma and his ministers have argued that this is not enough time. In court papers filed at the Constitutional Court, Zuma and his ministers ask that Parliament should be given 18 months to fix the legislation. This because “amendment is complex” and because “the period afforded to Parliament coincides with an imminent national election”.
A source familiar with the Hawks said the unit was demoralised and had lost some of its best investigative capacity from the days of the Scorpions. City Press has previously reported on the disagreement and the incoherence that has been caused by confusion over the fate of the unit.
The Helen Suzman Foundation has asked the court to confirm the order of constitutional invalidity. It is also asking the Constitutional Court to declare further sections of the act unconstitutional. One of the sections it is referring to includes a provision that empowers the minister to do “integrity testing” of Hawks members, which the foundation believes is an intimidation tactic. It believes this could include the bugging of Hawks officers’ phones.
Source: City Press
Zuma, Justice Minister Jeff Radebe and Police Minister Nathi Mthethwa have indicated that they will appeal an order by the Western Cape High Court that found the act governing the Hawks still allows for too much political interference. This means the uncertainty over the Hawks, which replaced the Scorpions, will now drag into its sixth year. The Constitutional Court originally declared the act unconstitutional in 2011.
The current case follows the Western Cape High Court’s ruling in December, in favour of the Helen Suzman Foundation, which found that the police’s updated act was still unconstitutional.
The court ruled that adequate mechanisms to prevent political interference in the Hawks were still lacking.
The court gave Parliament a year to rectify this, but Zuma and his ministers have argued that this is not enough time. In court papers filed at the Constitutional Court, Zuma and his ministers ask that Parliament should be given 18 months to fix the legislation. This because “amendment is complex” and because “the period afforded to Parliament coincides with an imminent national election”.
A source familiar with the Hawks said the unit was demoralised and had lost some of its best investigative capacity from the days of the Scorpions. City Press has previously reported on the disagreement and the incoherence that has been caused by confusion over the fate of the unit.
The Helen Suzman Foundation has asked the court to confirm the order of constitutional invalidity. It is also asking the Constitutional Court to declare further sections of the act unconstitutional. One of the sections it is referring to includes a provision that empowers the minister to do “integrity testing” of Hawks members, which the foundation believes is an intimidation tactic. It believes this could include the bugging of Hawks officers’ phones.
Source: City Press
Saturday, February 1, 2014
Flipping the corruption myth
Corruption is by far not the main factor behind persisting poverty in the Global South.
Dr Jason Hickel lectures at the London School of Economics and serves as an adviser to /The Rules
Transparency International recently published their latest annual Corruption Perceptions Index (CPI), laid out in an eye-catching map of the world with the least corrupt nations coded in happy yellow and the most corrupt nations smeared in stigmatising red. The CPI defines corruption as "the misuse of public power for private benefit", and draws its data from 12 different institutions including the World Bank, Freedom House, and the World Economic Forum.
When I first saw this map I was struck by the fact that most of the yellow areas happen to be rich Western countries, including the United States and the United Kingdom, whereas red covers almost the entirety of the global South, with countries like South Sudan, Afghanistan, and Somalia daubed especially dark.
This geographical division fits squarely with mainstream views, which see corruption as the scourge of the developing world (cue cliche images of dictators in Africa and bribery in India). But is this storyline accurate?
Many international development organisations hold that persistent poverty in the Global South is caused largely by corruption among local public officials. In 2003 these concerns led to the United Nations Convention against Corruption, which asserts that, while corruption exists in all countries, this "evil phenomenon" is "most destructive" in the global South, where it is a "key element in economic underperformance and a major obstacle to poverty alleviation and development".
There's only one problem with this theory: It's just not true.
Corruption, superpower style
According to the World Bank, corruption in the form of bribery and theft by government officials, the main target of the UN Convention, costs developing countries between $20bn and $40bn each year. That's a lot of money. But it's an extremely small proportion - only about 3 percent - of the total illicit flows that leak out of public coffers. Tax avoidance, on the other hand, accounts for more than $900bn each year, money that multinational corporations steal from developing countries through practices such as trade mispricing.
This enormous outflow of wealth is facilitated by a shadowy financial system that includes tax havens, paper companies, anonymous accounts, and fake foundations, with the City of London at the very heart of it. Over 30 percent of global foreign direct investment is booked through tax havens, which now collectively hide one-sixth of the world's total private wealth.
This is a massive - indeed, fundamental - cause of poverty in the developing world, yet it does not register in the mainstream definition of corruption, absent from the UN Convention, and rarely, if ever, appears on the agenda of international development organisations.
With the City of London at the centre of the global tax haven web, how does the UK end up with a clean CPI?
The question is all the more baffling given that the City is immune from many of the nation's democratic laws and free of all parliamentary oversight. As a result of this special status, London has maintained a number of quaint plutocratic traditions. Take its electoral process, for instance: More than 70 percent of the votes cast during council elections are cast not by residents, but by corporations - mostly banks and financial firms. And the bigger the corporation, the more votes they get, with the largest firms getting 79 votes each. This takes US-style corporate personhood to another level.
To be fair, this kind of corruption is not entirely out of place in a country where a feudalistic royal family owns 120,000 hectares of the nation's land and sucks up around £40m ($65.7m) of public funds each year. Then there's the parliament, where the House of Lords is filled not by election but by appointment, with 92 seats inherited by aristocratic families, 26 set aside for the leaders of the country's largest religious sect, and dozens of others divvied up for sale to multi-millionaires.
Corruption in US is only slightly less blatant. Whereas congressional seats are not yet available for outright purchase, the Citizens United vs FEC ruling allows corporations to spend unlimited amounts of money on political campaigns to ensure that their preferred candidates get elected, a practice justified under the Orwellian banner of "free speech".
The poverty factor
The UN Convention is correct to say that poverty in developing countries is caused by corruption. But the corruption we ought to be most concerned about has its root in the countries that are coloured yellow on the CPI map, not red.
The tax haven system is not the only culprit. We know that the global financial crisis of 2008 was precipitated by systemic corruption among public officials in the US who were intimately tied to the interests of Wall Street firms. In addition to shifting trillions of dollars from public coffers into private pockets through bailouts, the crisis wiped out a huge chunk of the global economy and had a devastating effect on developing countries when demand for exports dried up, causing massive waves of unemployment.
A similar story can be told about the Libor scandal in the UK, when major London banks colluded to rig interest rates so as to suck around $100bn of free money from people even well beyond Britain's shores. How could either of these scandals be defined as anything but the misuse of public power for private benefit? The global reach of this kind of corruption makes petty bribery and theft in the developing world seem parochial by comparison.
With the City of London at the centre of the global tax haven web, how does the UK end up with a clean CPI?
The question is all the more baffling given that the City is immune from many of the nation's democratic laws and free of all parliamentary oversight. As a result of this special status, London has maintained a number of quaint plutocratic traditions. Take its electoral process, for instance: More than 70 percent of the votes cast during council elections are cast not by residents, but by corporations - mostly banks and financial firms. And the bigger the corporation, the more votes they get, with the largest firms getting 79 votes each. This takes US-style corporate personhood to another level.
To be fair, this kind of corruption is not entirely out of place in a country where a feudalistic royal family owns 120,000 hectares of the nation's land and sucks up around £40m ($65.7m) of public funds each year. Then there's the parliament, where the House of Lords is filled not by election but by appointment, with 92 seats inherited by aristocratic families, 26 set aside for the leaders of the country's largest religious sect, and dozens of others divvied up for sale to multi-millionaires.
Corruption in US is only slightly less blatant. Whereas congressional seats are not yet available for outright purchase, the Citizens United vs FEC ruling allows corporations to spend unlimited amounts of money on political campaigns to ensure that their preferred candidates get elected, a practice justified under the Orwellian banner of "free speech".
The poverty factor
The UN Convention is correct to say that poverty in developing countries is caused by corruption. But the corruption we ought to be most concerned about has its root in the countries that are coloured yellow on the CPI map, not red.
The tax haven system is not the only culprit. We know that the global financial crisis of 2008 was precipitated by systemic corruption among public officials in the US who were intimately tied to the interests of Wall Street firms. In addition to shifting trillions of dollars from public coffers into private pockets through bailouts, the crisis wiped out a huge chunk of the global economy and had a devastating effect on developing countries when demand for exports dried up, causing massive waves of unemployment.
A similar story can be told about the Libor scandal in the UK, when major London banks colluded to rig interest rates so as to suck around $100bn of free money from people even well beyond Britain's shores. How could either of these scandals be defined as anything but the misuse of public power for private benefit? The global reach of this kind of corruption makes petty bribery and theft in the developing world seem parochial by comparison.
But this is just the tip of the iceberg. If we really want to understand how corruption drives poverty in developing countries, we need to start by looking at the institutions that control the global economy, such as the IMF, the World Bank and the World Trade Organisation.
During the 1980s and 1990s, the policies that these institutions foisted on the Global South, following the Washington Consensus, caused per capita income growth rates to collapse by almost 50 percent. Economist Robert Pollin has estimated that during this period developing countries lost around $480bn per year in potential GDP. It would be difficult to overstate the human devastation that these numbers represent. Yet Western corporations have benefitted tremendously from this process, gaining access to new markets, cheaper labour and raw materials, and fresh avenues for capital flight.
These international institutions masquerade as mechanisms for public governance, but they are deeply anti-democratic; this is why they can get away with imposing policies that so directly violate public interest. Voting power in the IMF and World Bank is apportioned so that developing countries - the vast majority of the world's population - together hold less than 50 percent of the vote, while the US Treasury wields de facto veto power. The leaders of these institutions are not elected, but appointed by the US and Europe, with not a few military bosses and Wall Street executives among them.
Joseph Stiglitz, former chief economist of the World Bank, has publicly denounced these institutions as among the least transparent he has ever encountered. They also suffer from a shocking lack of accountability, as they enjoy special "sovereign immunity" status that protects them against public lawsuit when their policies fail, regardless of how much harm they cause.
Shifting the blame
If these patterns of governance were true of any given nation in the global South, the West would cry corruption. Yet such corruption is normalised in the command centres of the global economy, perpetuating poverty in the developing world while Transparency International directs our attention elsewhere.
Even if we do decide to focus on localised corruption in developing countries, we have to accept that it does not exist in a geopolitical vacuum. Many of history's most famous dictators - like Augusto Pinochet, Mobutu Sese Seko, and Hosni Mubarak - were supported by a steady flow of Western aid. Today, not a few of the world's most corrupt regimes have been installed or bolstered by the US, among them Afghanistan, South Sudan, and the warlords of Somalia - three of the darkest states on the CPI map.
This raises an interesting question: Which is more corrupt, the petty dictatorship or the superpower that installs it? Unfortunately, the UN Convention conveniently ignores these dynamics, and the CPI map leads us to believe, incorrectly, that each country's corruption is neatly bounded by national borders.
Corruption is a major driver of poverty, to be sure. But if we are to be serious about tackling this problem, the CPI map will not be much help. The biggest cause of poverty in developing countries is not localised bribery and theft, but the corruption that is endemic to the global governance system, the tax haven network, and the banking sectors of New York and London. It's time to flip the corruption myth on its head and start demanding transparency where it counts.
Dr Jason Hickel lectures at the London School of Economics and serves as an adviser to /The Rules.
Follow him on Twitter: @jasonhickel
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.
Source: Al Jazeera
Dr Jason Hickel lectures at the London School of Economics and serves as an adviser to /The Rules
Transparency International recently published their latest annual Corruption Perceptions Index (CPI), laid out in an eye-catching map of the world with the least corrupt nations coded in happy yellow and the most corrupt nations smeared in stigmatising red. The CPI defines corruption as "the misuse of public power for private benefit", and draws its data from 12 different institutions including the World Bank, Freedom House, and the World Economic Forum.
When I first saw this map I was struck by the fact that most of the yellow areas happen to be rich Western countries, including the United States and the United Kingdom, whereas red covers almost the entirety of the global South, with countries like South Sudan, Afghanistan, and Somalia daubed especially dark.
This geographical division fits squarely with mainstream views, which see corruption as the scourge of the developing world (cue cliche images of dictators in Africa and bribery in India). But is this storyline accurate?
Many international development organisations hold that persistent poverty in the Global South is caused largely by corruption among local public officials. In 2003 these concerns led to the United Nations Convention against Corruption, which asserts that, while corruption exists in all countries, this "evil phenomenon" is "most destructive" in the global South, where it is a "key element in economic underperformance and a major obstacle to poverty alleviation and development".
There's only one problem with this theory: It's just not true.
Corruption, superpower style
According to the World Bank, corruption in the form of bribery and theft by government officials, the main target of the UN Convention, costs developing countries between $20bn and $40bn each year. That's a lot of money. But it's an extremely small proportion - only about 3 percent - of the total illicit flows that leak out of public coffers. Tax avoidance, on the other hand, accounts for more than $900bn each year, money that multinational corporations steal from developing countries through practices such as trade mispricing.
This enormous outflow of wealth is facilitated by a shadowy financial system that includes tax havens, paper companies, anonymous accounts, and fake foundations, with the City of London at the very heart of it. Over 30 percent of global foreign direct investment is booked through tax havens, which now collectively hide one-sixth of the world's total private wealth.
This is a massive - indeed, fundamental - cause of poverty in the developing world, yet it does not register in the mainstream definition of corruption, absent from the UN Convention, and rarely, if ever, appears on the agenda of international development organisations.
With the City of London at the centre of the global tax haven web, how does the UK end up with a clean CPI?
The question is all the more baffling given that the City is immune from many of the nation's democratic laws and free of all parliamentary oversight. As a result of this special status, London has maintained a number of quaint plutocratic traditions. Take its electoral process, for instance: More than 70 percent of the votes cast during council elections are cast not by residents, but by corporations - mostly banks and financial firms. And the bigger the corporation, the more votes they get, with the largest firms getting 79 votes each. This takes US-style corporate personhood to another level.
To be fair, this kind of corruption is not entirely out of place in a country where a feudalistic royal family owns 120,000 hectares of the nation's land and sucks up around £40m ($65.7m) of public funds each year. Then there's the parliament, where the House of Lords is filled not by election but by appointment, with 92 seats inherited by aristocratic families, 26 set aside for the leaders of the country's largest religious sect, and dozens of others divvied up for sale to multi-millionaires.
Corruption in US is only slightly less blatant. Whereas congressional seats are not yet available for outright purchase, the Citizens United vs FEC ruling allows corporations to spend unlimited amounts of money on political campaigns to ensure that their preferred candidates get elected, a practice justified under the Orwellian banner of "free speech".
The poverty factor
The UN Convention is correct to say that poverty in developing countries is caused by corruption. But the corruption we ought to be most concerned about has its root in the countries that are coloured yellow on the CPI map, not red.
The tax haven system is not the only culprit. We know that the global financial crisis of 2008 was precipitated by systemic corruption among public officials in the US who were intimately tied to the interests of Wall Street firms. In addition to shifting trillions of dollars from public coffers into private pockets through bailouts, the crisis wiped out a huge chunk of the global economy and had a devastating effect on developing countries when demand for exports dried up, causing massive waves of unemployment.
A similar story can be told about the Libor scandal in the UK, when major London banks colluded to rig interest rates so as to suck around $100bn of free money from people even well beyond Britain's shores. How could either of these scandals be defined as anything but the misuse of public power for private benefit? The global reach of this kind of corruption makes petty bribery and theft in the developing world seem parochial by comparison.
With the City of London at the centre of the global tax haven web, how does the UK end up with a clean CPI?
The question is all the more baffling given that the City is immune from many of the nation's democratic laws and free of all parliamentary oversight. As a result of this special status, London has maintained a number of quaint plutocratic traditions. Take its electoral process, for instance: More than 70 percent of the votes cast during council elections are cast not by residents, but by corporations - mostly banks and financial firms. And the bigger the corporation, the more votes they get, with the largest firms getting 79 votes each. This takes US-style corporate personhood to another level.
To be fair, this kind of corruption is not entirely out of place in a country where a feudalistic royal family owns 120,000 hectares of the nation's land and sucks up around £40m ($65.7m) of public funds each year. Then there's the parliament, where the House of Lords is filled not by election but by appointment, with 92 seats inherited by aristocratic families, 26 set aside for the leaders of the country's largest religious sect, and dozens of others divvied up for sale to multi-millionaires.
Corruption in US is only slightly less blatant. Whereas congressional seats are not yet available for outright purchase, the Citizens United vs FEC ruling allows corporations to spend unlimited amounts of money on political campaigns to ensure that their preferred candidates get elected, a practice justified under the Orwellian banner of "free speech".
The poverty factor
The UN Convention is correct to say that poverty in developing countries is caused by corruption. But the corruption we ought to be most concerned about has its root in the countries that are coloured yellow on the CPI map, not red.
The tax haven system is not the only culprit. We know that the global financial crisis of 2008 was precipitated by systemic corruption among public officials in the US who were intimately tied to the interests of Wall Street firms. In addition to shifting trillions of dollars from public coffers into private pockets through bailouts, the crisis wiped out a huge chunk of the global economy and had a devastating effect on developing countries when demand for exports dried up, causing massive waves of unemployment.
A similar story can be told about the Libor scandal in the UK, when major London banks colluded to rig interest rates so as to suck around $100bn of free money from people even well beyond Britain's shores. How could either of these scandals be defined as anything but the misuse of public power for private benefit? The global reach of this kind of corruption makes petty bribery and theft in the developing world seem parochial by comparison.
But this is just the tip of the iceberg. If we really want to understand how corruption drives poverty in developing countries, we need to start by looking at the institutions that control the global economy, such as the IMF, the World Bank and the World Trade Organisation.
During the 1980s and 1990s, the policies that these institutions foisted on the Global South, following the Washington Consensus, caused per capita income growth rates to collapse by almost 50 percent. Economist Robert Pollin has estimated that during this period developing countries lost around $480bn per year in potential GDP. It would be difficult to overstate the human devastation that these numbers represent. Yet Western corporations have benefitted tremendously from this process, gaining access to new markets, cheaper labour and raw materials, and fresh avenues for capital flight.
These international institutions masquerade as mechanisms for public governance, but they are deeply anti-democratic; this is why they can get away with imposing policies that so directly violate public interest. Voting power in the IMF and World Bank is apportioned so that developing countries - the vast majority of the world's population - together hold less than 50 percent of the vote, while the US Treasury wields de facto veto power. The leaders of these institutions are not elected, but appointed by the US and Europe, with not a few military bosses and Wall Street executives among them.
Joseph Stiglitz, former chief economist of the World Bank, has publicly denounced these institutions as among the least transparent he has ever encountered. They also suffer from a shocking lack of accountability, as they enjoy special "sovereign immunity" status that protects them against public lawsuit when their policies fail, regardless of how much harm they cause.
Shifting the blame
If these patterns of governance were true of any given nation in the global South, the West would cry corruption. Yet such corruption is normalised in the command centres of the global economy, perpetuating poverty in the developing world while Transparency International directs our attention elsewhere.
Even if we do decide to focus on localised corruption in developing countries, we have to accept that it does not exist in a geopolitical vacuum. Many of history's most famous dictators - like Augusto Pinochet, Mobutu Sese Seko, and Hosni Mubarak - were supported by a steady flow of Western aid. Today, not a few of the world's most corrupt regimes have been installed or bolstered by the US, among them Afghanistan, South Sudan, and the warlords of Somalia - three of the darkest states on the CPI map.
This raises an interesting question: Which is more corrupt, the petty dictatorship or the superpower that installs it? Unfortunately, the UN Convention conveniently ignores these dynamics, and the CPI map leads us to believe, incorrectly, that each country's corruption is neatly bounded by national borders.
Corruption is a major driver of poverty, to be sure. But if we are to be serious about tackling this problem, the CPI map will not be much help. The biggest cause of poverty in developing countries is not localised bribery and theft, but the corruption that is endemic to the global governance system, the tax haven network, and the banking sectors of New York and London. It's time to flip the corruption myth on its head and start demanding transparency where it counts.
Dr Jason Hickel lectures at the London School of Economics and serves as an adviser to /The Rules.
Follow him on Twitter: @jasonhickel
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.
Source: Al Jazeera
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