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Good
Governance as Political Conditionality
Ndiva
Kofele Kale
Southern
Methodist University School of Law
Dallas,
Texas, USA
INTRODUCTION
Good governance and political liberalization as desirable ends were imposed
on African governments by external actors in response to both exogenous
and endogenous factors. As disappointment with Africa's economic failure,
after almost three decades of independence from Western colonial rule,
set in and as Central and Eastern Europe broke loose from the bear hug
of Sovietism, the search for a new foreign policy thrust to replace anti-communism
took on added urgency (1). This eventually resulted in the transformation
of the fairly innocuous word "governance" into a contentious political
conditionality, by the major Western industrial democracies, having as
its focus the promotion of democracy. For most African governments and
leaders this new conditionality on top of other conditionalities associated
with Structural Adjustment Programs was nothing short of a time bomb (2).
Like the poisoned gifts of Troy, this 'gift' also was the work of friends
and partners! The prudent person does not lounge around to see when such
a device goes off and risk getting showered with shrapnel; one flees.
This is precisely what the ruling political elite has done. Even those
African leaders who were genuinely committed to economic reform feared
the consequences of the political conditionality being imposed from without.
The conditionality promised to increase their dependence on their external
benefactors even as it encouraged home-grown opposition to authoritarian
regimes. The majority of them resisted with all their might while others
temporized or engaged in infantile charades (such as promoting well-choreographed
national conferences that resolved nothing, introducing a few cosmetic
changes here and there in their constitutions that fooled no one, organizing
sham elections that almost always ended up preserving the political status
quo, setting Up human rights commissions while denying, then the means
to check and prevent violations of these rights, and so on and so forth).
The rather lukewarm reception that the campaign for good governance and
democratization got from its African hosts raises a key question which
this Paper sets out to confront. It is this: whether Africa's political
leadership can, in good faith, produce and guarantee the political reforms
necessary for good governance to flourish? It is the thesis of this Paper
that because African leaders were dragged kicking and screaming into the
governance and democratization reform movement, their commitment to it
is, at best, questionable. They cannot, therefore, be counted on to carry
through to their logical conclusion the reforms called for.
1. What
is Governance?
The term first made its appearance in development circles in a much quoted
paragraph on the World Bank's 1989 report: Sub-Saharan Africa: From Crisis
to Sustainable Growth. Its recency notwithstanding, the etymological roots
of the term "governance" can be traced to the Latin verb for steering
a ship, gubernare, from which we get the root for govern, governor, government
and governance. In its ordinary dictionary meaning, governance refers
to the "action or manner of governing." However, in practice two distinct
meanings have been attributed to the term "governance" and while distinct
they nonetheless overlap in a number of essential respects. One approach
conceptualizes governance as a value-neutral term whose application is
limited only to economic and social dimensions while the other views governance
as a normatively-laden term.
a.
Governance as a Value-Neutral Term: This definition is favored
by the World Bank. In its 1991 report, Managing Development - The Governance
Dimension and again in its 1992 report, Governance and Development, the
Bank defined "governance" in terms more relevant and appropriate for its
purposes as "the manner in which power is exercised in the management
of a country's economic and social resources for development." The report
went on to identify three distinct aspects of governance:
(i) the form of political regime;
(ii) the process by which authority is exercised in the management of
a country's economic and social resources; and
(iii) the capacity of governments to design, formulate, and implement
policies and discharge functions. Because of prohibitions entrenched in
its Articles of Agreement (3), the Bank has deemed the first aspect of
governance beyond the scope of its mandate and has instead focused on
the second and third aspects.
b.
Governance as a Normative Term: In contrast to the World Bank's
value-neutral definition of governance, the second approach treats "governance"
as a normatively-laden term (4) which makes it possible to draw a distinction
between "Good Governance" or "Good Government" and "Bad Governance" or
"Bad Government" (5). Good Governance is to be preferred to Bad Governance
because it fosters strong, but sharply delimited states capable of sustained
economic and social development and institutional growth. In contrast,
Bad governance is a pathology to be avoided because it undermines all
efforts to improve policy making and to create durable institutions. The
United Kingdom's Overseas Development Agency prefers this approach because
it facilitates its use as a guide to aid allocation using criteria drawn
from the political as well as economic dimensions of governance. It is
an approach also favored by the Organization for Economic Cooperation
and Development (OECD) and the International Monetary Fund (IMF). While
using basically the World Bank's definition of governance as "the action
or manner of governing," the OECD goes one step farther by emphasizing
its normative character. It achieves this by linking governance with participatory
development, human rights and democratization. The OECD's expansive use
of governance is intended to assist its member states in calibrating the
success or failure of their aid policies in light of the objectives set
out to achieve. Hence, governance in this context focuses on such issues
as legitimacy of government (degree of "democratization"), accountability
of political and official elements of government (media freedom, transparency
of decision-making, accountability mechanisms), competence of governments
to formulate policies and deliver services, respect for human rights and
rule of law (individual and group rights and security, framework for economic
and social activity, participation).
In a similar vein, the IMF embraces the normative-laden conceptualization
of governance but like the World Bank sees it through the prism of economic
efficiency and sustainable growth. This preoccupation with these twin
issues is underscored in a 1996 declaration on Partnership for Sustainable
Growth. In that document, the IMF justified its embrace of good governance
because it was central to the maintenance of market/private sector confidence
in member countries. The declaration also identified the promotion of
good governance "in all its aspects, including ensuring the rule of law,
improving the efficiency and accountability of the public sector, and
tackling corruption" as an essential element of a framework within which
economies can prosper. Even in this normatively-laden context, the IMF
still limited its interests in issues of governance to the economic aspects
of governance, i.e., macroeconomic stability, external viability and orderly
economic growth in member countries.
Multilateral financial institutions were the first to wade into the governance
arena and their particular interests have unwittingly shaped much of the
debate on issues of governance. As lenders of last resort to financially-strapped
and badly-managed economies, these lending agencies were justifiably interested
in designing templates against which to assess how efficiently and appropriately
resources transferred to recipient countries were utilized. Not surprisingly,
therefore, their interest in governance was skewed, initially, in the
direction of the economic and social dimensions of governance to the exclusion
of the Political. Governance was narrowed only to those issues that have
a direct impact on economic efficiency and sustainable growth. So, when
these agencies spoke of fostering good governance, they meant promoting
public sector transparency and accountability, that would eventually change.
2. Governance
and Democracy as Political Conditionality
From the moment major Western donor countries began the search for appropriate
guidelines to assist in aid allocation, the development assistance debate
was expanded to embrace the political dimension of governance. Governance
became firmly tied to democracy like two Siamese twins. Major Western
countries together With the Bretton Woods institutions now began stressing
the need to create a more facilitative sociopolitical context for structural
adjustment in the developing world, in general, and Africa, in particular
(6). As the World Bank observed:
Efforts to create an enabling environment and to build capacities will
be wasted if the political context is not favorable. Ultimately, better
governance requires political renewal. This means a concerted attack on
corruption from the highest to lowest levels. This can be done by setting
a good example, by strengthening accountability, by encouraging public
debate, and by nurturing a free press. It also means fostering grassroots
and nongovernmental organizations (NGOs), such as farmers' associations,
cooperatives, and Women's groups. (7)
In April 1990, Barber Conable, then President of the World Bank, put the
case for governance and political liberalization in remarkably blunt terms":
"[t]he development of many Sub-Saharan African countries", he said "has
been quite unnecessarily constrained by their Political Systems."
Africans can and must tackle this issue. Indisputably, three decades after
independence too many African countries have failed to produce political
and economic systems in which development can flourish. People need freedom
to realize individual and collective potential. Open political participation
has been restricted and even condemned, and those brave enough to speak
their minds have too frequently taken grave political risks. I fear that
many of Africa's leaders have been more concerned about retaining power
than about the long-term development interests of their people. The cost
to millions of Africans has been unforgivably high. (8)
Thus, governance tied to democracy became the new political conditionality
for the distribution of both bilateral and multilateral assistance to
developing African countries. Henceforth, financial aid and bans would
be given only to countries tending toward pluralism, public accountability
and human rights, and market principles. The test of democratization would
be based on the presence of multiparty systems, free elections, press
freedom, and an independent judiciary. On what assumptions about African
societies, their value systems and the nature of their leadership did
these goals rest?
a.
Attaining Economic Efficiency and Growth and Good Governance
Economic efficiency and growth, on the one hand, and governance and democratization,
on the other, have been treated as mutually reinforcing processes. The
assumption has been that since authoritarian rule, in the main, is responsible
for Africa's economic decline, democratic politics can step in to reverse
the situation. One particularly astute scholar has pointed out that:
"[t]he presumption of the mutually reinforcing character of political
and economic reform in Africa and elsewhere relies on an extension of
neoclassical economic logic, as follows: economic liberalization creates
sustained growth, growth produces winners as well as losers, winners will
organize to defend their new-found welfare and will create sociopolitical
coalitions to support continued economic reform." (9) This idea of simultaneous
economic and political liberalization is based on faulty assumptions about
cause and effect because it would appear that economic growth can be achieved
even by regimes that flout the basic principles of democratic governance
and who are persistent abusers of human rights. For instance, the African
Development Bank (ADB) has classified governance into macro, meso, and
micro-governance depending on different governance conditions at the various
levels of government. Under the ADB typology, even non-democratic
authoritarian regimes, particularly those that are committed to development,
might exhibit good governance characteristics at the micro- and meso-levels.
(10) It is perfectly within the realm of the possibility that so long
as the preoccupation is with economic efficiency and sustainable growth,
a country can qualify for a certificate of 'Good Governance' from these
multilateral lending institutions even when it fails woefully in its efforts
at political liberalization.
b.
Good Governance as a Casualty in the Pursuit of Economic Efficiency and
Growth
An unrelenting pursuit of economic efficiency and growth could result
in the complete abandonment of the principles of good governance and democratization.
If the history of countries that have in recent memory successfully negotiated
the rocky transition from authoritarian rule to pluralist democracy is
any guide then champions of 'Good Governance' have cause to worry about
developments in Africa. It has been shown repeatedly that fundamental
freedoms of free press and speech among others are usually the first to
go when a country begins to experience severe economic difficulties. A
fortiori, it would seem that the basic rights of speech, association and
other individual liberties tend to flourish amidst economic plenty. This
can be accounted for, in part, because governments are less paranoid about
internal enemies and, in part, because people are no longer content with
just the material things in life and want a greater say in shaping their
political destiny. It would seem also that people begin to develop
so-called "finer aspirations," i.e., aspiration for political and personal
liberties only after the basic necessities for survival have been met.
In The Capitalist Revolution (1991), Berger explains the success of the
so-called "development dictatorships" in Singapore, South Korea and Taiwan
by advancing the thesis that economic progress was achieved at the expense
of fundamental human rights. What is interesting about this thesis is
the intriguing argument that follows where Berger suggests that there
was relatively little resistance from the population in the "take-of"
stages of capitalist development because the latter held out the promise
of a better life. Apparently, people who are escaping from a harsh economic
existence and who can see a better life in the immediate horizon are less
likely to be interested in issues associated with political liberalization.
This comes much later. If Berger is right then what this means for Cameroon
and other similarly placed African countries is that in the short term
(anywhere from five to ten years), the struggle for basic economic survival
will dominate the minds of the overwhelming majority of the people leaving
little time to cogitate much less act on matters that are political in
nature. When this mass fatigue engendered by grinding poverty is coupled
with internal 'afro-pessimism' then the resistance and opposition to authoritarian
rule expected from the much talked about 'civil society' will simply not
be there.
3. Governance,
Democratization, and African Reality
a.
The Link Between Corruption, Governance and Economic Growth (11)
When the Berlin-based anti-corruption organization, Transparency International,
issued its 1998 Corruption Perceptions Index ("CPI"), its Vice Chairman
Frank Vogl made the following observation:
The CPI scores, with their shocking portrayal of so many countries perceived
to be home to rampant corruption will spur Transparency International
to be even more aggressive in mobilizing initiatives to counter corruption
worldwide. Securing democracy, alleviating poverty and human suffering,
and sustaining investment and commerce, are inextricably dependent upon
curbing corruption in most of the developing nations and across Central
and Eastern Europe. (12)
Transparency International's pronouncement was merely echoing others previously
made by members of the international community in recent years. Together,
they boldly underscore the universal condemnation of corrupt practices
by public officials and a general interest in cooperating to suppress
them. This widespread condemnation of acts of corruption is reflected
in the preambles of a number of multilateral anti-corruption conventions
and resolutions of international organizations. Reading through them leaves
one in no doubt as to the seriousness with which the international community
as a whole views the problem of corruption as a subject of global concern.
The Council of Europe's 1999 Criminal Law Convention on Corruption set
out in its preamble a concise outline of the serious and varied forms
of damage caused by corruption and the urgent need to combat it through
a multi-disciplinary national and international approach. The Parties
to the Convention expressly acknowledge that corruption "threatens the
rule of law, democracy and human rights, undermines good governance, fairness
and social justice, distorts competition, hinders economic development
and endangers the stability of democratic institutions and the moral foundations
of society." In the 1994 Summit of the Americas Declaration of Principles
and Plan of Action, the Heads of State of 34 nations of the southern hemisphere
pointedly linked the survival of democracy to the eradication of corruption.
"Effective democracy," they declared, "requires a comprehensive attack
on corruption as a factor of social disintegration and distortion of the
economic system that undermines the legitimacy of political institutions."
In the preamble to the Inter-American Convention Against Corruption which
followed on the heels of the 1994 summit, again the leaders of the Organization
of American States came back to the theme of corruption as a phenomenon
that "undermines the legitimacy of public institutions and strikes at
society, moral order and justice, as well as the comprehensive development
of peoples." Acknowledging that corruption has international dimensions,
the signatories of the Convention agreed on the "need for prompt
adoption of an international instrument to promote and facilitate international
cooperation in fighting corruption" and "the responsibility of States
to hold corrupt persons accountable."
On December 16, 1996, the United Nations General Assembly, acting on an
earlier recommendation of the Economic and Social Commission, adopted
the United Nations Declaration against Corruption and Bribery in International
Commercial Transactions. The Declaration highlights the economic costs
of corruption and bribery, and points out that "a stable and transparent
environment for international commercial transactions in all countries
is essential for the mobilization of investment, finance, technology,
skills and other resources across national borders." Member States pledge
in the Declaration to criminalize bribery of foreign public officials
in an effective and coordinated manner and to deny the tax deductibility
of bribes paid by any private or public corporation or individual of a
Member State to any public official or elected representative of another
country. Corruption was also the subject of a 1997 United Nations General
Assembly Resolution entitled "Action Against Corruption". This resolution
underscored the General Assembly's concern about the serious problems
posed by corrupt practices to the stability and security of societies,
the values of democracy and morality, and to social, economic and political
development. (13) The resolution also drew a link between corruption and
organized crime, including money laundering. Interestingly enough,
the preamble of the Inter-American Convention also called attention to
the "steadily increasing links between corruption and the proceeds generated
by illicit narcotics trafficking… which undermine and threaten legitimate
commercial and financial activities, and society, at all levels." (14).Acknowledging
that corruption now has trans-border effects, the General Assembly's anti-corruption
resolution recommends a multilateral approach to combat it.
a.
The new face of corruption in Africa: In a 1989 piece that appeared
in the American Journal of International Law, Professor Michael Reisman
decried the preoccupation of traditional scholarship with the exploitation
of the natural wealth of developing countries by transnational corporations
while ignoring internal forms of wealth exploitation. As he argued,
the "ritual of condemnation of foreign corporations' spoliations of the
resources of developing countries and their elevation to the level of
international concern have obscured the problem of spoliations by national
officials of the wealth of the states of which they are temporary custodians"
(15).
Corruption is not a new phenomenon and "it is unlikely that there has
ever been a ruling class which did not exploit its political power to
further its private financial interests." (16) But there is something
extraordinary about the corruption that now blights the entire African
landscape. (17) Three things stand out from this new generation of economic
crimes of Africa's ruling elites. First, unlike past depredations where
the wealth remained in the territory for recycling, the modern context
is characterized by "great mobility of wealth and the capacity to hide
and disguise it." (18) A second feature of the modern version of indigenous
spoliation is the amount of wealth involved, usually in the billions of
dollars. Indeed, so stupendous are the sums involved that one commentator
(19) was moved to describe these depredations as going beyond shame and
almost beyond imagination. (20) And, finally, the victims of these acts
are, in the main, the citizens of some of the most economically impoverished
countries in the world.
The men and women who have been responsible for the economic rape of entire
nations continue their plunder with impunity. Even when toppled from power,
they have no difficulty taking refuge elsewhere where they come under
the protection of the laws of the host State. These "undesirable refugees",
to use Professor Falk's apt description, have gone unpunished because
the constraints of the state system and the lack of appropriate municipal
law, substantive as well as procedural, have frustrated efforts to recover
spoliated wealth. Against this backdrop and given the caliber of people
involved in the economic plunder of their countries, one wonders whether
any good governance movement can succeed in bringing these economic pirates
under some kind of legal discipline. (21)
Paradoxically, no serious program of political liberalization can be pronounced
successful which does not rein in this practice. (22) It is in the anticipation
of this quagmire that this author had earlier raised the question whether
Africa's political leadership can be counted on to implement necessary
institutional reforms required of good governance.
b.
An Unwieldy Centralized State: Governance and democratization
as political conditionality presume the Jeffersonian model of the State
which is premised on the belief that the best government is that which
governs the least. The Jeffersonian model reposes its faith in small
government which brings decision-making closer to the people and in turn
involves them actively and meaningfully in their self-governance. The
small decentralized state model favored by the governance movement must
now contend with the Juggernaut state model that became the paradigm for
post-colonial Africa. A model in which political power is monopolized
at the center and where the ubiquity of, for instance, Yaounde in every
aspect of national life is felt. Let us pause for a moment and reflect
on this reality: over 70 per cent of Cameroonians live a world away from
the political intrigues and power struggles that go on in Yaounde. They
are in the main preoccupied with their daily lives and basic economic
survival. When they meet in the evenings in their matango houses or in
beer parlors to reflect on the issues of governance, they do not dwell
much on such constitutional niceties as the virtues of federalism over
centralized presidential government. What they talk about is how to get
bureaucrats in Yaounde to let them Organize their lives in ways that are
most appropriate, meaningful and efficacious for their circumstances.
To my mind, the government that can best address these concerns is one
that grows out of and reflects the local and regional experiences of these
ordinary Cameroonians. For its proponents though, centralization has always
been justified on the ground that only through it can national integration
be achieved. The reality, however, is that after three decades of a centralized
government, Cameroon is no more integrated than it was in 1961. The ethnic
flare-ups that occur with increasing frequency nationwide and the now
almost permanent Anglophone/Francophone schism all attest to deep social
cleavages in our body politic and serve as convincing evidence that centralization
has succeeded only in exacerbating these social tensions rather than defusing
them.
c.
The Cult of Personality Complex: Good governance and democratization
are fostered by a government of institutions as opposed to one organized
around personalities, especially around the so-called strongmen of Africa
(the likes of the Eyademas, the Arap Mois, the Omar Bongos, the Paul Biyas,
etc.) And here a word of caution. Africans should be especially wary of
Western social scientists who have embarked on a worldwide search for
messiahs, like the fictional Indiana Jones on a quest for the Holy Grail!
These pundits have demonstrated a penchant for heaping effusive adulation
on this type of African leaders and we like obedient pupils follow suit
(interestingly, in their own countries they would think twice before reposing
political responsibility on such individuals). Such is the nature
of underdevelopment that Africans feel vindicated whenever their choices
are dictated or validated externally. It is this author's view, however,
that the elevation of "strongmen" leaders to ultimate political power,
as the post-colonial history of Africa has demonstrated repeatedly, leads
inexorably to the rise of personality cults (23) and autocratic governments.
With the qualified exception of the late Mwalimu Julius Nyerere in Tanzania
and now Nelson Mandela in South Africa, no such leader in post-colonial
Africa has succeeded in transferring the enormous appeal of charisma into
self-sustaining institutions designed to outlive their creators. Regrettably,
there has been no African George Washington or Thomas Jefferson (Nelson
Mandela comes closest) who would elect to forego a life presidency, freely
given by his compatriots, in order to strengthen the institution of the
presidency for succeeding generations. Rather, all that black Africa has
managed to grow is a surfeit of leaders who have used their office to
create clientelist and patronage networks to cater to the predatory needs
of their families, closest associates, clans, tribes and then the rest
of us, in that order.
From the Good Governance perspective, the conclusion is inescapable that
these super-human beings have been disastrous for Africa's overall development.
The enormous energies and resources needed to sustain the elaborate myths
spun around them could and should be put to better use. Further perpetuation
of this hero-worship pathology will almost certainly result in the total
breakdown of this continent's tottering infrastructure, paving the way
for a second wave of European colonization in the not-too-distant future.
The antidote to the cult of personality is a commitment to institution-building
for institutions always outlive humans. The Fondoms and Chiefdoms of Cameroon
will survive long after their present temporary occupants have passed
on to the life beyond. That is the beauty of institutions; their
self-sustaining power. Advocates of good governance should, therefore,
be concerned about strengthening Africa' s nascent democratic institutions
and adding more to the stable while insisting on institutional checks
on human excesses. Madison observed some two centuries ago "[i]f men were
angels, no government would be necessary. If angels were to govern men,
neither external nor internal controls on government would be necessary."
Therefore, in framing a government which is to be administered by men
over men, Madison advised that "auxiliary precautions" would be necessary
to ensure that the government can control itself. (24) Madison like the
other Founding Fathers of the new American Republic saw in constitutional
separation of powers, with their built-in checks and balances, as the
natural defense to tyranny. Two hundred years and more of the history
of the United States of America--the first new nation to break away
from government by hereditary monarchy-- vindicates its founding fathers
for placing their faith and trust in a government driven by institutions
as opposed to one held hostage by the ambitions of a few men.
d.
Fairness in and respect for the Rules of 'Engagement': Finally,
notions of procedural fairness as opposed to desired outcome are an essential
part of democratic discourse, bringing me to a brief and final comment
on the relationship between governance, democratization and African reality.
We refer here to the absence of fairness and the lack of respect for the
process by which the rules of the game are forged; but also for the rules
upon which agreement has been reached. This climate of disrespect for
rules engulfs whole societies but it is particularly pertinent in the
governance context because it implicates the political class. Among them
obligations freely entered into in arms length political bargaining are
hardly ever respected; agreements signed and sealed are honored more in
the breach; good faith is devalued in political discourse and outcomes
are preferred to process. It is in this context that one can begin to
understand Africa's track record of unenforced laws, of failed elections
and stolen electoral victories.
CONCLUSION
Somewhere in The Eighteenth Brumaire of Louis Bonaparte, Marx remarks
that "[m]en make their own history, but they do not make it just as they
please; they do not make it under circumstances chosen by themselves but
under circumstances directly found, given and transmitted from the past.
The tradition of all the dead generations weighs like a nightmare on the
brain of the living." Clearly what Marx qua political philosopher was
suggesting in this passage is that the past provides the foundation upon
which the present and future are built; it is, as it were, the prologue
to any discourse on the present and the basis for any prognostications
about the future. The principles of good governance and democratization
will be erected on a foundation that is by no means terra nullius. These
laudable principles will be introduced into societies that have a past,
a present and, a possible future. The target or perhaps, beneficiaries
is a more appropriate term, of these reforms are in the main, people in
search of a life appreciably better than the one they currently find themselves
in. They constitute the bulk of these societies. Those who will midwife
this reformatory process comprise a small elite of political leaders and,
bureaucrats. These managers of reform are, in the main, men and women
motivated by social and economic interests which they will try to protect
and preserve. The lives of these various actors, their interests, their
goals are the factors that circumscribe the stage on which the principles
of good governance and democratization will play themselves out. To ignore
these variables is to imperil the reform effort itself because they ultimately
weigh on its success or failure.
FOOTNOTES
1. See Thomas M. Callaghy, "Political Passions and Economic Interests:
Economic Reform and Political Structure in Africa," in Hemmed in: Responses
To Africa's Economic Decline 463 (Thomas M. Callaghy & John Ravenhill
eds. 1993) (hereafter "Political Passions")
2. Id.
3. Article III, Section 5(b) provides that "[T]he Bank shall make arrangements
to ensure that the proceeds of any ban are used only for the purposes
for which the ban was granted, with due attention to considerations of
economy and efficiency and without regard to political or other non-economic
influences or considerations" (emphasis added). Article IV, Section 10
provides that "[T]he Bank and its officers shall not interfere in the
political affairs of any member, nor shall they be influenced in their
decisions by the political character of the member or members concerned.
Only economic considerations shall be relevant to their decisions, and
these considerations shall be weighed impartially in order to achieve
the purposes stated in Article 1." Article V, Section 5(c) provides that
"[T]he President, officers and staff of the Bank, in the discharge of
their offices, owe their duty entirely to the Bank and to no other authority.
Each member of the Bank shall respect the international character of this
duty and shall refrain from all attempts to influence any of them in the
discharge of their duties." Identical prohibitions appear also in
the constituent agreements of the International Development Agency (IDA),
the International Finance Agency (IFA) and the Multilateral Investment
Guarantee Agency (MIGA).
4. See World Bank, Governance: The World Bank Experience 5-6 (1994).
5. Good governance is epitomized by predictable, open and enlightened
public policy, a bureaucracy imbued with a professional ethos acting in
furtherance of the public good, the rule of law, transparent processes,
and a strong civil society participating in public affairs. Bad governance,
on the other hand, 13 characterized by arbitrary policy making, unaccountable
bureaucracies, unenforced or unjust legal systems, the abuse of executive
power, a civil society unengaged in public life, and widespread corruption.
6. See Political Passions, Supra note 1, at 477.
7. See World Bank, Sub-Saharan Africa: From Crisis To Sustainable Growth,
192, 6 (1989).
8. See Barber B. Conable, "Address As Prepared for Delivery to the
Bretton Woods Conference on Africa's Finance and Development Crisis,"
World Bank, Washington, D.C., 25 April 1990.
9. See Political Passions, supra note 1, at 482.
10. See African Development Bank, Governance And Development In Africa:
Issues, And The Role of The African Development Bank and Other Multilateral
Institutions (1993).
11. Available empirical evidence suggest a correlation between corruption
and economic growth and investment. statistically, the relationship is
negative: a one standard deviation improvement in the corruption index
is associated with a four percentage point increase in investment and
over a half percentage point increase in the annual growth rate of per
capita GDP. See GCA, Corruption and Development in Africa: Policy Forum,
GCA / PF / N.2 / 11 / 1997, at 12. Available http:// www.gca-cma.org
/ epfdoc.97. htm.
12. See TI Press Release: 1998 Corruption perceptions Index.
13. Available empirical evidence suggest a correlation between corruption
and economic growth and investment. Statistically, the relationship is
negative: a one standard deviation improvement in the corruption index
is associated with a four percentage point increase in investment and
over a half percentage point increase in the annual growth rate of per
capita GDP. See Corruption in Africa, supra note 11, at 12.
14. In the same Vein, a 1995 Resolution on Combating Corruption in Europe
adopted by the European Parliament also stressed the ties between corruption
and organized crime while expressing the view that combating the latter
can help to curb the former.
15. See W. Michael Reisman, Harnessing International Law to Restrain and
Recapture Indigenous Spoliations, 83 AH. J. INT'L L.
56-57 (1989).
16. See European Parliament Resolution, Explanatory Statement No. 2 (b).
17. I have referred to this new form of sovereign corruption as "indigenous
spoliation" or "patrimonicide" by which I mean the systematic looting
and stashing in foreign banks of the financial resources of a State by
its leaders, elected and appointed, in military regimes as well as civilian
governments in Africa, on a scale so vast and never before seen in history.
See Ndiva Kofele-Kale, International Law of Responsibility For Economic
Crimes: Holding Heads Of States And Other High Ranking State Officials
Individually Liable For Acts Of Fraudulent Enrichment (Kluwer Law International,
1995); See also Ndiva Kofele-Kale, Patrimonicide: The International Economic
Crime of Indigenous Spoliation, 28 VAND. J. TRANS'L L. 45, 58 (January
1995).
18. See Abram Chayes, Pursuing the Assets of Former Dictators, in Proceedings
Of The 81st Annual Meeting Of The American Society Of International Law
395 (1987) (Michael P. Malloy Ed., 1990) [Hereinafter ASIL Proceedings].
19. Darrel Delamaide, The Debt Shock: The Full Story Of The World Credit
Crisis 60 (1984); see also Colette Braeckman, Le Dinosaure: Le Zaïre
de Mobutu (1990).
20. "Many political leaders in countries with serious poverty have amassed
extraordinary fortunes. Foreign exchange reserves have been transferred
to foreign bank accounts." World Bank, Governance And Development 16 (1992)
.Perhaps, a few examples will suffice to drive home this point.
There can be no better example to begin with than that of Field Marshall
Mobutu Sese Seko whose years as head of state remain the example par excellence
of this novel form of African kleptocracy. In the 32 years that
he was the incontestable ruler of the ex-Republic of Zaire (now the Democratic
Republic of the Congo), Mobutu succeeded in embezzling some four
billion dollars of his nation' s wealth. For an excellent account of how
Mobutu systematically and methodically pillaged from his nation's resources,
See Colette Braeckman, Le Dinosaure: Le Zaïre de Mobutu (1990).
Mobutu was ousted from power by Laurent Kabila and his band of loyal guerilla
fighters in May 1997 and in September of the same year he died in exile
in Morocco. If Mobutu's conduct was outrageous, consider that of the late
General Sani Abacha of Nigeria who seized power in a coup d'état
in 1993 and ruled Nigeria with an iron fist until his sudden death in
1998. His tenure as Head of a modem State represents, perhaps, one of
the most egregious cases of corruption by a public official in this century.
The depredations of Abacha expose the weakness in the restrictive definition
of corruption promoted in the present international legal regime. Based
on credible estimates by the respectable Times of London, Abacha is believed
to have stashed in European banks more than 3.6 billion pounds sterling
(approximately $5.4 billion) during his five-year tenure as head of state.
Yet, he was not done: over a two-year period and acting under the instructions
of General Abacha, his national security adviser withdrew close to $2.45
billion from the Nigerian Central Bank ostensibly to pay back debts owed
to Russian contractors for the construction of a giant steel plant at
Ajaokuta. What the public did not know was that the debts owed the Russians
were grossly overvalued allowing the Abacha family to pocket the difference.
The fraud was uncovered by the successor government who eventually recovered
some of the stolen money. But the outrage continues. According to a Government
White Paper, the Nigerian government earned $12.225 billion from sales
of surplus petroleum during the 1990-1991 Gulf War. Of this amount the
military generals made away with $12 billion and only $225 million trickled
back into the national treasury!
21. This is quite a tali order because African leaders are not even
willing to take responsibility for not doing anything to curb corruption
in their countries. When the problem of corruption was raised during
a Global Forum for Africa Plenary in Maastricht in November of 1995, many
African leaders blamed the industrialized countries and their multinationals
for worsening corruption in their countries! See GCA, Corruption
in Africa, supra note 11, at 12. Or, take the case of the Cameroon Government's
angry reaction to Transparency International's (TI) 1998 Corruption Perceptions
Index (CPI) which ranked Cameroon as the country perceived to be the most
corrupt in world in 1998 (and again in 1999). Soon after CPI was made
public, the Cameroon Government went into a full court press to destroy
the bona fides of Transparency International. TI was attacked for mis-characterization,
for the motives behind the exercise, and for the methodology it employed
in drawing up the perceptions index. The campaign to denigrate TI and
its work was orchestrated from the highest level of Government, the Presidency
no less. In a statement issued from State House, the deputy Secretary
General of the Presidency dismissed the report as a "nasty political manoeuvre
... a callous manoeuvre of intoxication" intended to "tarnish the image
of Cameroon and discourage investors." The report, he claimed, was a gross
misrepresentation of Cameroonian realities as it ignored giant strides
taken by the Government in the past decade to institutionalize a culture
of accountability, transparency, and probity in public governance. The
CPI, the Government claimed, cannot be taken seriously because of its
flawed methodology: the surveys on which the CPI was constructed were
described as the result of interviews with phantom "multinational company
heads who claim to be working in Cameroon", concluding that there are
no infallible instruments that have yet been found that can accurately
measure corruption in any country, let alone rank countries on a scale.
Worse, TI which was the brain behind this survey was accused of being
"on the pay of neocolonialists" and "clusters of people at work" to undermine
Cameroon' s efforts to develop. A commentator on the Government-controlled
state radio was equally dismissive of the CPI on grounds that it "lacks
authority [and expresses] a view that is not based on any scientific basis
[and being] a pure invention of its authors' imagination, entirely subjective
[and established] for hidden motives." See "State radio reacts angrily
to report ranking Cameroon the world's most corrupt country"; "Cameroon:
world champion of corruption, says Transparency International". www.boh.org
/ english / cm / 1998 / 0923.254/n4. Ironically, a few months later, Cameroon'
s President Biya in a New Year Address to the Nation admitted with remarkable
candor that corruption had become a serious national problem that was
gnawing at the moral and economic foundations of the society! In
the televised end-of-year message, the President accused his compatriots
for accumulating "illicit wealth... [and for being] well versed in cheating,
fraud and even swindling." See "Cameroon-politics: Biya calls for justice,
security, morality and a fight against corruption". www.boh.org / english
/ crn / 1999 / 0101.354 / n4.html.
22. The Global Coalition for Africa found out in its study of corruption
and development in Africa: "low salaries which may partly explain the
existence of petty corruption and theft at lower levels... [but] it cannot
be an excuse for higher-level and large scale bureaucratic corruption.
Unless high-level bureaucratic corruption is addressed, it will be difficult
to reduce corruption at lower-levels." Id., at 1.
23. See Ndiva Kofele-Kale, "The Politics of Development and the Problem
of Leadership in Africa," in Alfred de Souza, ed., The New Leaders in
India and Africa: The Politics of Change, Leadership Development
and Training New Delhi: Manohar Press, 1978, reprinted in Cross
Currents special issue on "Learning in Africa," Vol. XXVIII, No. 4 Winter
1978-79, pp. 432-452; and ________ "The Problem of Instrumental
Leadership in Contemporary African Political Systems, "the Journal of
Asian and African Studies (York University), XIII, 1-2, January-April
1978.
24. See Federalist No. 51. See also Federalist No. 48 where Madison argues
that "parchment barriers" or written provisions in the Constitution delineating
the powers of the three departments of government [legislative, judicature
and executive] will not, by themselves, serve to prevent a "tyrannical
concentration" of powers. He takes particular aim at the legislature as
the most feared branch of government because it "is everywhere extending
the sphere of its activity and drawing all power into its impetuous vortex."
For this reason, he urges the people "to indulge all their jealousy and
exhaust all their precautions" against this branch of government. Paper
barricades in a Constitution will not be sufficient to rein in a rogue
government, only a well-informed and vigilant electorate can effectively
block any lurches in the direction of autocratic rule.
©
The ideas and opinions expressed in this article are those of the author
and do not necessarily reflect the views of UNESCO.
©
Les idées et opinions exprimées dans cette article sont
celles de l'auteur
et n’engagent pas la responsabilité de l´UNESCO.
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