Repression of “white collar crime” and the population’s access to justice

Corruption, misappropriation of public funds, illegal enrichment of politicians and civil servants, influence-peddling, tax fraud, etc. are all elements that constitute what Edwin Sutherland describes as “white collar crimes”; “a crime orchestrated by a respectable and high ranking personality in the course of their duties(1). In its article 4, the African Union Convention on  Preventing and Combating Corruption  defines all acts within the scope of  active or passive corruption including: bribery, unlawful and illegal benefits, influence-peddling, illegal enrichment, money laundering, etc. The convention gives freedom to States to implement their own measures and means of fighting against corruption. Among these measures, Daniel Dommel mentions: “the punishment of acts of corruption, the establishment of independent institutions to fight against corruption and the protection of witnesses to acts of corruption who could be called by justice.” (2).  The criminal justice response to white collar crime prevailed against corruption, numerous scandals and massive misappropriation of public funds. In 2005, the UNCTAD estimated misappropriated funds in Africa between 1970 and 2005 at $ 400 billion, almost double  the debt contracted by Africa within the same period ($215 billion). This means that every year between 1997 and 2004, $13 billion were misappropriated. Raymond Baker believes that $20 to $40 billion are misappropriated annually in Africa, and transferred to international banking institutions. It should be noted that these figures put forward by Baker and backed by the United Nations solely represents money transferred abroad and do not include that invested in the defrauded countries.

In Cameroon, President Paul Biya  stated in 2007 that: “the misappropriation of public funds, in whatever form, is a crime against the populations who are deprived of their rightful resources(3) . Robert Kong supports the fact that misappropriation of public funds, constitutes a crime because misappropriation deprives a whole population of its assets (4).  In 2015 this crime made Cameroon to loose close to CFA F 29 billion. In 2018, a network of fictitious salaries was exposed at MINFI resulting in the embezzlement of almost 16 billion .

Can the populations who are deprived of their resources hope to regain their rights once the proceedings initiated to fight against white collar criminals are over? How can justice be given to a people who are deprived of their resources and are unable to defend themselves while at the same time, guaranteeing the guilty parties a fair and just trial as citizens? The people’s access to justice therefore warrants the respect for the right to a fair trial,  an important aspect of the proper administration of justice and reparation for harm done.

Proper Administration of Justice

The African Charter on Human and People’s Rights (5), states in its article 7 some key elements essential to the proper administration of justice in criminal matters. These elements include: the right to a fair trial and the right of appeal to a national jurisdiction, thus, the elements for assessing and evaluating a proper administration of justice.

The right to a fair trial originates from the Magna Carta of June 1215 which stipulates in its article 39 that: “no free man is to be arrested, imprisoned, or dispossessed of his property […] without a lawful judgement by his peers and in accordance with the law of the land.” With time, this article which has become the foundation of the right to a fair trial involves the independence and impartiality of the judge.

The Francophone African States have resolved to “ensure the independence of the judiciary, the freedom of the bar and the promotion of an efficient and accessible justice system, that guarantees a State of law.” (6). However, if the constitutions of these States implement the independence of the judicial power as a fundamental principle in the organisation and operation of the justice system, the reality will be something else.

Blundo and Olivier De Sardan point out the difficulties faced by the judge to establish a fair judgement, “torn between the incessant demands of his social environment and the demands of his profession which obey other logics(7). The investigating judge Kaolack in Senegal attests that: “it is true that the judge undergoes so much pressure, which can come from his family, brotherhood (if he has any) and even from the social environment.” (8). However, the impartiality of the judge, is the impetus of a fair court judgement and should therefore be guaranteed.

A reasonable period is an element to be considered to establish a fair judgement . Spener Yawaga and Paul Gérard Pougoué point out that in Cameroon there is, “a legal gap and uncertainty relating to the principle of celerity that often manifests itself through the respect of a reasonable period in criminal proceedings.” (9). Spener Yawaga (10), taking an example of police custody although on this issue there is still a legal gap relating to some of its features. These numerous legal gaps give room for abuse and promotes delays in judicial administration which are likely to create several malfunctions and breakaway from the reasonable period requirement. However, according to Spener Yawaga, the “reasonable period requirement is in accordance with the preservation of human rights and the security of citizens(11). The alleged culprits of white-collar crime, despite the charges levied against them, are still citizens. The protracted court cases and numerous adjournments are unnecessary for a people who wish that their misappropriated assets should be returned.

The restitution of misappropriated assets

The United Nations Convention has made the restitution of illegally acquired assets (Article 51), a fundamental principle of international law. However, the victim State is responsible for implementing the means that shall be used to recover the misappropriated funds. But then, according to Transparency International, the implementation of this principle, should not be undertaken solely by the Government (12). National and international civil societies have to commit themselves resolutely in its implementation. Daniel Lebégue and Marina Yung note that since the adoption of this convention, “the effective implementation of the principle of restituting misappropriated public funds to the populations is very far from reaching expected results”, (13) because of a weak national legal framework, the absence of legal cooperation between States, and a lack of political will. Faced with these difficulties, they lay emphasis on the role of NGOs.

The seizure and restitution of misappropriated funds and illegally acquired assets make up the foundation of the justice the people hope for, following legal proceedings initiated against white collar criminals. Without the “restitution of the stolen billions into the State coffers,” the legal proceedings initiated against the white collar criminals will have little impact. In Cameroon, the law creating the Special Criminal Court, within the framework of procedures relating to crimes like illegal enrichment or misappropriation of public funds makes provision for the restitution of corpus delicti before or after the trial, with the possibility of a stay of proceedings. José Mgba Ndjie (14), discusses the effectiveness of such a measure, pointing out the difficulties in its implementation and its limited scope, even though he acknowledges that the restitution of corpus delicti ensures the development of the country.

Mali after conducting the long and costly asset recovery procedure of Moussa Traoré (assets worth two billion dollars), seized only 2.4 million dollars, barely accounting for 1%. Also Antoine Dulin and Jean Merckaert observe that “despite the repeated promises to fight against corruption, only 1% to 4% of the assets misappropriated have been restituted to the aggrieved population” (15).

Conclusion

White collar crime raises the problem of adequate sanctions to economic and financial malpractices of elites in order to restore a form of social equity. The fight against corruption and massive misappropriation of public assets will be inefficient and largely irrelevant, without a legal framework which promotes and facilitates the restitution of misappropriated assets, because according to Sarah Saadoun, “the restitution of stolen assets should be instrumental in the fight against corruption and provide a remedy to the victims” (16). Therefore, to avoid that corruption and misappropriation practices should not be trivalised, justice should not be limited to condemning “white collar criminals” (17), it should go far beyond by initiating procedures aimed at restituting the misappropriated assets.

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Pr. NGO TONG Chantal Marie is a Research associate in Governance & Democracy at the Nkafu Policy Institute. She holds a Ph.D. in Political Science, obtained from the University of Nantes (France). Pr. NGO TONG is also a Senior Lecturer at the University of Ngaoundéré. She is a reviewer and co-editor of the African Development Perspectives Yearbook and a member of the Research Group on African Development Perspectives, Bremen since 2019.

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