Full Statement Of Ghana's Chief Justice On Corrupt Judges
Key Note Address, Delivered By Her Ladyship, The Chief Justice Of Ghana Mrs. Georgina T. Wood On The Topic:
'The Role Of Judges In The Prevention And Control Of Corruption, Money Laundering And Terrorist Financing'
AT THE M-PLAZA HOTEL, ACCRA - GHANA
ON 22 JULY 2013
Dr. Abdullahi Shehu, Director General of GIABA;
Hon. Justice Amie Joof, Attorney General and Minister of Justice, Republic of The Gambia;
Hon. Marietta Brew Appiah-Opong, Honourable Minister for Justice and Attorney-General;
Members of the Press;
Ladies and Gentlemen.
Thank you for inviting me to deliver the Keynote Address at another capacity building programme organised by the Inter-Governmental Action Group against Money Laundering in West Africa (GIABA) for judges of English-speaking ECOWAS member States. Ghana is hosting this programme for the third time since 2009 and I wish to express my personal gratitude to GIABA for selecting Ghana to host this very important meeting and for the privilege of being the keynote speaker for the third time. This Seminar underscores GIABA's timely and invaluable contribution towards this knowledge update. I would like to personally thank the Director General Dr. Abdullahi Shehu, GIABA National Correspondent, Mr. Samuel Thompson Essel, the CEO of The Financial Intelligence Centre, Ghana, and their hard working staff for their personal commitment and high sense of responsibility in this war against terrorism and related activities.
Permit me to also extend a very warm Ghanaian welcome, in local parlance, Akwaaba, to all participants and assure you of our commitment to make your stay in Ghana memorable.
Understanding the complexity and ill-effects of corruption, money laundering, terrorist financing and the nexus between them within the framework of law is crucial to a clear appreciation of the enormity and urgency of the task that lies ahead of us all, namely, the prevention and control of corruption, money laundering and terrorist financing.
There are several definitions of corruption, the oft quoted being the: 'misuse of public power for private gain'. This usually entails fraud, conflict of interests, nepotism, illegal political party financing, abuse of power or office, embezzlement, extortion, bribery and favouritism. Within the broader context, corruption encompasses the lack of integrity or propriety and so would include conduct which is debased or tainted but which might not necessarily constitute criminal or illegal conduct.
The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, the Convention against Transnational Organised Crime and the Convention against Corruption define money laundering as:
'The conversion or transfer of property, knowing that such property is derived from any offence or offences or from an act of participation in such offence or offences, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of such offence or offences to evade the legal consequences of his actions.' It also involves 'The concealment or disguising of the true nature, source, location, disposition, movement, rights with respect to or ownership of property knowing that it is derived from a criminal offense; and The acquisition, possession or use of property, knowing at the time of its receipt, that it was derived from a criminal offense or from participation in a crime.'
The Financial Action Task Force (FATF) has identified Terrorist Financing as a distinct and separate type of Economic Crime and has focused on how terrorists conceal or move funds in support of their operations. The objective of the FATF is to identify the financing methods used by terrorists and how they differ from those used by other criminal groups. Besides kidnapping and extortion, terrorist groups may engage in large-scale smuggling operations, various types of fraud, thefts and robbery, and narcotics trafficking.
The incidence of corruption and its retrogressive impact on developmental efforts in the sub-region cannot be overemphasized. The report on a field survey commissioned by GIABA to establish the nexus between corruption and money laundering in 2010, explicitly identified six (6) corruption techniques which were dominant across the West African States. These were:
'Embezzlement, misappropriation, or other diversions of public property/funds by government officials;
Bribery of Government officials;
Inflation of contracts and over-invoicing;
Abuse/misuse of office for personal gains;
Trading in 'influence' to get things done or not; and
Illegal transfer or taking of money abroad.'
The report also made staggering revelations about the preponderance of corrupt practices in Judiciaries which understandably,
'Pose a serious threat to the implementation of AML/CFT recommendations, because people involved in money laundering, corruption and predatory crimes are often left out of the noose of prosecution irrespective of the hard efforts made by investigating agencies to ensure that these criminals are brought to justice..'
Again the report criticised some judiciaries for being 'schizophrenic' at best in handling cases involving political players and allowing scores of such cases to remain pending in the courts for ages.
EXTENT OF CORRUPTION, MONEY LAUNDERING AND TERRORIST FINANCING
A definitely apt and direct statement on the connection between corruption, money laundering, terrorism financing and its insidious effects on good governance and socio economic development is that proffered by His Excellency Mr. Kofi Annan, a son of the soil. During his tenure as the UN Secretary General, Mr. Kofi Annan succinctly expressed it in his Foreword to United Nations Convention Against Corruption - 2004 in the following terms:
'Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organized crime, terrorism and other threats to human security to flourish.
This evil phenomenon is found in all countries - big and small, rich and poor - but it is in the developing world that its effects are most destructive. Corruption hurts the poor disproportionately by diverting funds intended for development, undermining a Government's ability to provide basic services, feeding inequality and injustice and discouraging foreign aid and investment. Corruption is a key element in economic underperformance and a major obstacle to poverty alleviation and development.'
The 2012 Corruption Perception Index published by Transparency International, that is, the global civil society in the vanguard of the fight against corruption, paints a gruesome picture of endemic corruption in West African countries. Out of one hundred and seventy six countries and territories surveyed, only six West African countries were ranked among the first one hundred. To ease our consciences we may argue that the Index may be a perception but its importance cannot be overlooked. Corruption is endemic in our countries and our judiciaries have a lead role to play in attacking this scourge.
As noted by Transparency International,
'Corruption translates into human suffering, with poor families being extorted for bribes to see doctors or to get access to clean drinking water. It leads to failure in the delivery of basic services like education or healthcare. It derails the building of essential infrastructure, as corrupt leaders skim funds. Corruption amounts to a dirty tax, and the poor and most vulnerable are its primary victims.
The frightening spectacle is that our sub-region is becoming notorious for transnational organized crimes which were hitherto alien to us. In addition to corruption, the range now includes prevalent offences predicate to money laundering such as dealing in narcotic drugs, migrant smuggling, arms racketeering, piracy, oil bunkering, kidnapping and terrorism. In acknowledging the existence of trans-border crimes in the West African sub-region, the President of the United Nations Security Council, gravely concerned about the threat of trans-border crimes to global peace, stability and security issued the following Press Statement on 21st February 2012:
'The Security Council expresses concern about the serious threats to international peace and stability in different regions of the world, in particular in West Africa and the Sahel Region, posed by transnational organized crime, including illicit weapons and drug trafficking, piracy and armed robbery at sea, as well as terrorism and its increasing links, in some cases, with transnational organized crime and drug trafficking. The Council stresses that these growing international threats, particularly in West Africa and the Sahel Region, contribute to undermining governance, social and economic development and stability, and creating difficulties for the delivery of humanitarian assistance, while threatening to reverse peace-building advances in the region. The Security Council is also strongly concerned by the increasing violence perpetrated by armed groups in the region, which has been exacerbated by the proliferation of weapons, from within and outside the region, that threaten peace, security and stability of States' .
With the increasing exploitation of natural resources such as oil and gas in Africa and the enhanced potential for wealth generation, the continent runs a grave risk of becoming an arena for the mobilization of funds for terrorist activities. Africa runs the tangential risk of becoming a training camp, a recruitment base and a transit point for terrorists, with places of worship, political and social gatherings becoming the ultimate target of terrorists.
Money Laundering and Terrorist Financing are crucial enablers of the harms caused by crime and terrorism. Finance is the lifeblood of crime and terrorism. Profit is fundamental to the goals of most crimes, and therefore criminals make great efforts to move illegally obtained money and other assets in order to convert, conceal or disguise the true nature and source of these funds. The availability of working capital is also fundamental for both criminals and terrorists to sustain their networks.
The distinct harms associated with Money Laundering activities are endless and ranges from tax evasion to the collapse of legitimate businesses, the reason being that legitimate businesses can find it tough competing with money laundering front businesses that can afford to sell products more cheaply because their primary purpose is to clean money, not make a profit.
THE ROLE OF JUDGES
This seminar comes off in the wake of the release of the 2013 Global Corruption Barometer (Perception Index) by Transparency International. Without validating the contents of that research output, in our jurisdiction in particular, it certainly brings to the fore once again the perception of the populace regarding judicial corruption. Against this backdrop, this engagement provides us with an opportunity to add yet more thoughts on the role of our respective judiciaries in the fight against the triple scourge of corruption, money laundering and terrorist financing, and in particular the concrete and pragmatic approaches we seriously need to adopt to uphold and enhance core judicial values of judicial integrity, transparency and accountability and competence in the adjudication of corruption, money laundering and terrorist financing cases.
Ours is a continent ravaged by corruption and grinding poverty. Judges are expected to be bearers of impeccable integrity and wholesome judicial conduct. To have those of us mandated to demonstrate in unambiguous terms that crime is unprofitable business abandon our God given roles, and rather actively join the baneful corruption bandwagon spells doom for our beloved continent.
This is not to say that there are no judges who hold the highest judicial and ethical conduct. We do have honest, hard working men and women of integrity in our fold. Only a couple of days I had been compelled inter alia, upon a judge's request to transfer a case from her court because a party had sought to bribe her with money. But the critical point I wish to emphasise is that I do not see how any judge caught in the web of corruption can himself or herself actively champion the fight against the canker. I call upon constitutional bodies with responsibility over our judiciaries not to shy of removing errant judges who use the high office they occupy and the enormous powers they wield to engage in unwholesome acts that undermine the sanctity of the state. Court users must refuse to pay bribes to court officials, Judges and whistle-blowers and citizens alike must be prepared to expose judges and other court officials who engage in these activities.
The bleak picture, namely, that corruption and other forms of Economic and Financial Crimes have, in recent years, increased phenomenally, giving the indication that these crimes have become endemic, with tentacles that stretch out in global webs, must galvanize judges who have the mandate and responsibility for ensuring the rule of law, order, stability and respect for human rights to stand up and be counted.
As a first step, there is the need for judges to honestly undertake holistic assessments of their performance to identify areas for potential reforms and be proactive in enhancing their capacity by undertaking targeted studies on issues relating to corruption, money laundering and terrorist financing. The United Nations and other key international stakeholders have developed the legal framework and standards for combating corruption and other economic crimes through Conventions and Resolutions for ratification and adoption into national legislative frameworks. These include:
The United Nations Convention Against Corruption - 2003
The African Union Convention on Preventing and Combating Corruption - 2003
FATF 40 Recommendations on Combating Money Laundering and the Financing of Terrorism & Proliferation
The UN Convention on the Suppression of the Financing of the Financing of Terrorism - 1999
Relevant Security Council Resolutions related to Financing of Terrorism 1267 (1999), 1373 (2001), 1390 (2002)
AU Convention against Terrorism
The Executive and Legislative branches of government in many of our countries have also taken strong steps to sign and ratify the UN and AU Conventions, accept the FATF forty (40) Recommendations, enact new legislations and amend existing ones to adequately criminalize corruption, money laundering and terrorist financing. With the legal framework adequately put in place, what is left is to give these legislations full meaning and effect is enforcement.
Judges must commit to studying these international instruments, the enabling domestic statutes, existing jurisprudence from the superior courts not only the domestic courts but other international courts and become adept at recognising the essential elements of relevant principles and applying the law to facts in ways that give effect to the legislative framework.
RULE OF LAW
An effective civil society plays an active role in shaping public policies, including providing a platform for discussion of pertinent issues. Rule of law can be achieved through consistent engagement, interaction and information sharing with civil society on issues of public interest. In this regard, judges are encouraged within legitimate limits to cooperate with civil society in the performance of their functions. Outcomes of judicial proceedings must be shared with civil society to ensure wider dissemination. Crime in general may be controlled where, in addition to sanctions imposed by the courts, criminals also face public criticisms, naming and shaming being one such effective strategy, as well as sanctions from their professional bodies.
For any judiciary to function effectively, it must have a passion for justice. It must, in significant terms be fiercely independent, and imbued with a high sense of integrity both institutionally and substantially. The lack of these two critical values is bound to undermine its credibility and erode its legitimacy.
Judicial independence is a guarantee for fair and impartial resolution of disputes and provides continuity and stability in our legal system. An independent judge is not afraid to rule against excessive governmental regulation, overzealous law enforcement, or discriminatory policies. A judge who fears to be victimized or criticised for making unpopular decisions is less likely to be impartial and independent. Judges should not be influenced by personal interests or relationships, the identity or status of the parties to a case, or other external influences. Judges must declare conflicts of interest as soon as they become apparent and disqualify themselves when they are (or might appear to be) biased or prejudiced towards a party to a case or if they have economic interest in the outcome of a case.
The African Union Convention on Preventing and Combating Corruption (adopted in 2003) commits State Parties to 'require all or designated public officials (including judges) to declare their assets at the time of assumption of office during and after their term of office in the public service. Article 8(5) of the United Nations Convention against Corruption (UNCAC) (adopted in 2003) contains a soft standard, which requires state parties to endeavour, where appropriate and in accordance with the fundamental principles of its domestic law, to establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials.' As Party States to the UNCAC, our countries have domesticated such provisions in our national Constitutions and other pieces of legislation. As judges, we should demonstrate our commitment to the war against corruption and other transnational by declaring our assets periodically, especially where public officials are required to do so. Appropriate deterrent penalties must exist for violations of these requirements.
An independent judicial appointments body should be at the heart of the judicial selection process. An objective competitive and transparent appointments of judges ensures that only the highest quality candidates are selected, and that they do not feel indebted to the particular politician or senior judge who appointed them. Judicial appointments should therefore be merit-based, with clear and publicly known appointment criteria; candidates should be required to demonstrate a record of competence and integrity. Furthermore, an independent consultation with civil society, including professional associations linked to judicial activities regarding the suitability of candidates should be encouraged. Judges should be more encouraged by such processes in order to appreciate their roles and perform their functions as public officers.
ACCOUNTABILITY AND DISCIPLINE
Judges should be open to receive limited immunity for actions relating to judicial duties. Allegations against judges should be rigorously investigated, including by an independent body. The removal process should be transparent and fair, with strict and exacting standards; if there is a finding of corruption, a judge should be liable to prosecution, imprisonment and removal from judicial office.
Without pre-empting some of the discussions at this Seminar or repeat what may sound as clichés of 'the role of judges in fighting economic and financial crimes', you might agree with me that most discussions on the role of judges in specific areas of interest like good governance, fighting corruption, tend to also focus on the impediments to productive judicial performance. Accusing fingers have always been pointed at executive interference, lack of transparency in appointment and promotion of judges, weak legal framework, scarce resources, lack of continuing judicial education and poor conditions of service. I trust that these reforms will continue. But we certainly can no longer hide behind these excuses, given that to a very large extent, democratic and institutional reforms over the years have enabled a number of African countries to overcome these challenges to a very large extent.
Judges must be familiar with codes and principles of judicial ethics and commit themselves absolutely to the integrity, competence, diligence, transparency, impartiality, propriety, equality in treatment, and separation of powers demanded by the various instruments to which we are familiar with.
Judges can contribute to the effort of preventing and controlling economic crimes by being the repositories of law as they are required to be. When it appears obvious to the bench that inappropriate charges have been preferred against suspects in genuine blunder or just to give a semblance of prosecution, it is in the national interest for the bench to draw attention to the anomaly.
One of the main incentives to committing crime is the substantial financial benefit that may be derived from it. The traditional objective of criminal prosecution has been prison sentencing aimed at reforming the criminal, to serve as deterrence and retribution. Punishments must be made to fit the crime.
But serving term in prison custody is not likely to have significant impact on crime when criminals know that the proceeds of crime are safe from being taken away from them. Thus it is also necessary that the proceeds of crime are made inaccessible through orders flowing from the justice system to the financial system which ensures that the profits of crime are removed from the perpetrator. In short, criminals must additionally be stripped of their ill gotten wealth.
Finally, I strongly urge my colleague Judges to take advantage of this capacity building seminar to sharpen your judicial skills and expertise, through interactive contributions and knowledge sharing. I urge you to recognize that the fight against transnational organized crimes is a shared responsibility, through regional and interregional cooperation. A coherent and coordinated response to these threats through the sharing ideas, experiences and best practices and renewing our collective resolve to fight the threat and preserve the peace and order in our respective societies is the best way forward.
I extend a warm welcome to participants from our sister countries. Ghana is your home. Enjoy the peace and the wonderful hospitality it presents. I hope you will use this rare opportunity to make friends from other jurisdictions. Your friendship will strengthen us. Our friendship will strengthen you. Akwaaba.
Thank you all for the attention.