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A Critical Analysis of Grand Corruption with Reference to International Human Rights and International Criminal Law: the Case of Nigeria

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A Critical Analysis of Grand Corruption with Reference to International Human Rights and International Criminal Law: the Case of Nigeria Technological University Dublin ARROW@TU Dublin Doctoral Applied Arts 2017-4 A Critical Analysis of Grand Corruption with Reference to International Human Rights and International Criminal Law: The Case of Nigeria Florence Anaedozie Technological University Dublin Follow this and additional works at: https://arrow.tudublin.ie/appadoc Part of the Arts and Humanities Commons Recommended Citation Anaedozie, F. (2017) A Critical Analysis of Grand Corruption with Reference to International Human Rights and International Criminal Law: The Case of Nigeria. Doctoral thesis, 2017. doi:10.21427/D7V983 This Theses, Ph.D is brought to you for free and open access by the Applied Arts at ARROW@TU Dublin. It has been accepted for inclusion in Doctoral by an authorized administrator of ARROW@TU Dublin. For more information, please contact [email protected], [email protected]. This work is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 4.0 License A Critical Analysis of Grand Corruption with Reference to International Human Rights and International Criminal Law: The Case of Nigeria By Florence Anaedozie, BA, LL.B, LL.M School of Languages, Law and Social Sciences College of Arts and Tourism Dublin Institute of Technology A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy Lead Supervisor: Dr Stephen Carruthers Advisory Supervisor: Dr Kevin Lalor April 2017 Abstract Grand corruption remains a domestic crime that is not directly addressed by the international human rights and international criminal law regulatory frameworks. Scholars argue that the right to a society free of corruption is an inherent human right because dignity, equality and participation significantly depend upon it. The academic discourse linking corruption to the violation of human rights is relatively new, no regional or global human rights instrument has referred specifically to corruption while anti-corruption treaties rarely refer to human rights. There is also insufficient research within this area, establishing the direct causal link between high-level corruption and systemic human rights violations. Therefore, using qualitative interpretative analysis, this thesis aims to address this lacuna with reference to the case of Nigeria by interrogating case law, treaties, and other relevant legal human rights instruments. Consequently, the project placed the relevant international and regional oversight mechanisms under scrutiny by examining the impact of grand corruption upon human rights, as well as the analysis of accountability processes at the domestic level. Furthermore, it undertakes an assessment as to whether a normative gap exists within international criminal law regimes when it comes to the structural violations of socio-economic rights. The project considered the question of whether corruption ought to be framed as an international crime falling within the jurisdiction of the Rome Statute of the International Criminal Court. In conclusion, the thesis suggests that grand corruption in Nigeria violates certain human rights and recommends that international criminalisation of the crime of grand corruption could help to combat it in Nigeria. ii Declaration I certify that this thesis, which I now submit for examination for the award of PhD, is entirely my own work, and has not been taken from the work of others, save and to the extent that such work has been cited and acknowledged within the text of my work. This thesis was prepared according to the regulations for postgraduate study by research of the Dublin Institute of Technology and has not been submitted in whole, or in part for another award in any Institute. The work reported on in this thesis conforms to the principles and requirements of DIT’s guidelines for ethics in research. DIT has permission to keep, lend or copy this thesis in whole or in part, on condition that any such use of the material of the thesis be duly acknowledged. Signature _______________ Date_____________ Candidate iii Acknowledgements I wish to specially thank Dr Stephen Carruthers, who patiently guided me to the end of this research. This thesis would not have been possible without the persistent good nature, encouragement and constructive criticism Dr Carruthers provided. I also thank Dr Kevin Lalor especially for the exceptional contributions as an advisory supervisor and his willingness to give his time so generously. This kept the progress of this research work on schedule. Furthermore, my thanks to Professor Mary Rogan, and Dr Fergus Ryan for all the encouragement. I also wish to thank Professor Mary Corcoran, Professor Michael Doherty, Dr John Reynolds, Dr John O’Brennan and Mr Bruno Igwe. I appreciate all the contributions made in this research by these personalities. I am especially indebted to my husband, Mr Nkem Anaedozie and my children who supported me throughout the years I worked tirelessly to accomplish this project. iv Abbreviations AAPPG Africa All Party Parliamentary Group AfchHPR African Charter on Human and Peoples’ Rights AU African Union BMPIU Budget Monitoring and Price Intelligence Unit CPI Corruption Perception Index CCB Code of Conduct Bureau CCT Code of Conduct Tribunal ECOWAS Economic Community of West African States ECOWAS CCJ ECOWAS Community Court of Justice EFCC Economic and Financial Crimes Commission ESC Economic and social cultural rights EU European Union FATF Financial Action Task force FCPA Foreign Corrupt Practices Act GA General Assembly of the United Nations GOPAC Global Organisation of Parliamentarians against Corruption HDI Human Development Initiative HRC Human Rights Commission HRW Human Rights Watch ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICPC Independent Corrupt Practice Commission ICJ International Court of Justice ICL International Criminal Law ICTR International Criminal Tribunal for Rwanda ICTY International criminal Tribunal for the former Yugoslavia IMF International Monetary Fund ILC International Law Commission v MNC Multinational Corporation NEIT Nigeria Extractive Industry Transparency Initiative NFIU Nigeria Financial Intelligence Unit NGO Non-governmental Organisation OECD Organisation for Economic Co-operation and Development OHCHR Office of the High Commissioner for Human Rights PCIJ Permanent Court of International Justice SADC Southern African Development Community SAP Structural Adjustment Programmes SEC Securities and Exchange Commission SERAP Socio Economic Rights and Accountability Project TI Transparency International TUGAR Technical Unit of Governance and Anti-Corruption Reform UDHR Universal Declaration of Human Rights UN United Nations UNCAC United Nations Convention against Corruption UNCh Charter of the United Nations UNTOC United Nations Convention against Transnational Organised Crime UNODC United Nations Office on Drugs and Crime VCLT Vienna Convention on Law of Treaties WB World Bank WGB Working Group on Bribery (OECD) WTO World Trade Organisations WW 1 First World War WW 11 Second World War vi Table of Contents Abstract ii Declaration iii Acknowledgements iv Abbreviations v Table of Contents vii List of Cases xii List of Treaties xv Table of National Legislations xvii Chapter one 1.1 Introduction and Background to the Study 1 1.2 Statement of the Problem 8 1.3 Aims and Objective of the Study 11 1.4 Research Questions 12 1.5 Scope and Significance of the Study 12 1.6 Methodological Approach 13 1.7 Structure of the Thesis 15 1.8 General Perspectives on Corruption 17 1.8.1 Theoretical Framework 20 1.8.2 The Soft State Theory 21 1.8.3 Natural Resource Curse Theory 24 1.8.4 State Capture Theory 28 1.8.5 Conclusion 30 Chapter Two 2. Grand Corruption in Nigeria: Historical Review 2.1 Introduction 34 2.2 Grand Corruption (Colonial Era) 36 2.3 Grand Corruption: A Post-Colonial Experience 40 2.4 Grand Corruption (The Nigerian Military Connection) 41 vii 2.5 Grand Corruption: Post Military Era to Date (1999-2016) 47 2.6 Multinational Corporations (MNCs) and Grand Corruption in Nigeria 58 2.7 Conclusion 65 Chapter Three 3. Nigerian Legal Instruments and the Nexus between Corruption and Human Rights 3.1 Introduction 68 3.2 Legal Instruments against Corruption in Nigeria 70 3.3 Nigerian Anti-Corruption Agencies 72 3.3.1 The Independent Corrupt practices Commission (ICPC) 72 3.3.2 The Economic and Financial Crimes Commission (EFCC) 77 3.4 Corruption and Human Rights in Nigeria 82 3.5 Universal Human Rights Framework 83 3.6 The African Charter on Human and Peoples’ Rights 86 3.7 Justiciability of Socio-Economic Rights in Nigeria 89 3.8 Nexus between Grand Corruption and Human Rights in Nigeria 99 3.9 Conclusion 103 Chapter Four 4. International and Regional Legal Instruments on Corruption 4.1 Introduction 107 4.2 United Nations Convention against Corruption (UNCAC) 109 4.3 African Union Convention on Preventing and Combating Corruption 116 4.4 The Economic Council of West Africa (ECOWAS) Protocol Against Corruption 119 viii 4.5 The Foreign Corrupt Practices Act (FCPA) 1977 122 4.6 Conclusion 128 Chapter Five 5. Socio-Economic Rights: The Normative Gap in International Criminal Law 5.1 Introduction 133 5.2 Socio-Economic Rights in Transitional Justice: Inclusions, Exclusions & Misconceptions 135 5.3 Socio-Economic Rights in International Criminal Law: Limitations and Possibilities 145 5.4 Conclusion 154 Chapter Six 6. International Criminal Law and Grand Corruption 6.1 Introduction 158 6.2 International Criminal Law and Grand Corruption 159 6.2.1 Defining International Criminal Law 160 6.2.2 What Constitutes International Crimes? 161 6.2.3 Grand Corruption within the Context of International Criminal Law 163 6.3 The Rome Statute 170 6.3.1 Article 7 of the Rome Statute (Crimes against Humanity) 175 6.3.2 Grand Corruption as an Inhumane Act 179 6.4 Other ways International Criminal law can prosecute Grand Corruption 182 6.4.1 An International Anti-Corruption Court 182 6.4.2 National Courts with Universal Jurisdiction 185 6.4.3 Regional Courts 188 6.4.4 Creating New Mechanisms 190 ix 6.5 Conclusion 191 Chapter Seven 7.
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