France recognizes NGO's right to sue

Transparency International (logo at left) just won a major victory in the French courts: in a precedent-setting decision, the Cour de cassation ruled Tuesday that NGOs may bring international human rights cases in French courts. In particular, the decision was handed down

in a corruption case calling for an investigation into how luxury assets (properties and cars, as well as bank accounts) were acquired in France by three foreign heads of state - Denis SASSOU NGUESSO (Congo-Brazzaville), Omar BONGO ONDIMBA (Gabon, now deceased), Téodoro OBIANG MBASOGO (Equatorial Guinea) - and their relatives.

The decision is a major milestone in a country where rules are very strict regarding standing, and class actions do not exist:

• it recognizes the legitimacy of using the French courts to help fight corruption elsewhere and the bad government and poverty that result;
• it also recognizes the legitimacy of NGOs to represent people living under corrupt leadership, and more broadly to act as spokespersons for an emerging global citizenry striving for justice in the face of increased economic and financial globalization. Provided, that is, that the NGOs in question satisfy criteria of democracy and transparency.
  

The decision is also a very timely mise en garde to the French government. Since 2007, President Sarkozy has pressured the prosecutor's office to squelch the affair, and Omar Bongo even persuaded Sarkozy to fire one of his cabinet members for having publicly denounced these African leaders' pocketing of funds earmarked for their countries. This case, about which we've posted here, has thus highlighted the lack of separation of powers between the executive and the prosecutor's office, which would be reinforced under Sarkozy's planned reform of the judicial system. In particular, Sarkozy would like to eliminate the juge d'instruction (prior IntLawGrrls posts here, here, and here). The Cour de cassation has just ruled, in essence, that the juge d'instruction is a necessary cog in the wheels of French justice, without which cases like these will most likely not see the light of day.

Dealing with Corruption in Haiti

Seconds after the Chile tremors subsided, the comparisons began: Haiti suffers a category 7.0 earthquake and well over 200,000 die (President Rene Preval recently has been predicting 300,000 as the final toll ). Chile experiences a category 8.8 quake--roughly 500 times stronger than Haiti's--and the death toll hovers at less than 200. In the last few days, I have read multiple variations on this theme, and you know what surprises me? That anyone is surprised.

The very idea that a middle income country like Chile, with its strong building codes, low level of perceived corruption, and responsive government could be compared with Haiti is just ludicrous. Chile is a Latin American "dream" poised to become the first OECD member from that region, and Haiti is widely regarded as the poorest country in the Hemisphere. Is it so surprising that their experience of any catastrophe would be vastly different? (Not to mention, of course, that Haiti's earthquake centered around its densely populated capital, while Chile's hit its more remote outer region.) It seems to me the more relevant question is this: How do we help prepare Haiti for the next inevitable crisis?

Experts credit Portugal's 1755 earthquake--which demolished the city of Lisbon, killed as many as 40,000 residents, and precipitated multiple fires and a devastating tsunami--as "the first modern disaster." Citizens demanded change in the way government prepared for and responded to natural disasters. As a result, Portugal reconstructed Lisbon with the zeal of the newly converted: a scientific inquiry into the mechanics of earthquakes was launched, strict zoning rules were passed, and Portugal became the first country in Europe to adopt building codes for seismic activity. In short, Portugal's 1755 catastrophe became the vehicle for change. Is that likely to happen to Haiti as well? Probably not.

The US Geological Survey recently predicted even more seismic activity in the region. There is no question that Haiti (and the island of Hispanola) is likely to experience further significant tremors. But rather than allowing the information to galvanize them into action, the Haitian government is engaged in more of its business-as-usual antics. The Washington Post reported President Rene Preval interrupted a high-level meeting with Admiral Mike Mullen, Chairman of the Joint Chiefs of Staff, to chide Post reporters for publishing stories of government corruption. "There is no corruption here," Preval reportedly declared. "We have a high sense of morality." Preval is either woefully uninformed or simply unwilling to tackle a serious problem that threatens Haiti's future.

Transparency International ranks Haiti 168 out of 180 countries in terms of the level of perceived corruption of the country's public sector (Chile is ranked 25). Preval might believe there is no corruption, but Haiti's international business partners would respectfully disagree. Indeed, even as Preval was adopting his "no corruption here" mantra, stories abounded of Haitian customs officials demanding humanitarian organizations pay exorbitant "taxes" on donated goods entering the country to aid the millions of displaced Haitians. It seems even in the midst of this epic crisis, the Ministry of Economy and Finance found the time to adopt a new set of procedure for getting supplies into the country: Organizations now were to sign over the goods to the Haitian Department of Civil Protection, which would review their request to get a tax exemption before releasing the goods. The rationale for this new, onerous procedure? To prevent businesses from sneaking in goods tax free under the banner of relief agencies. Ministry officials quickly denied they were taxing humanitarian goods. But for organizations who have volunteered a week or two of service to Haiti, the burdensome new procedures simply ensure the work they went to do would not get done.

There is no great mystery here. We know how to rebuild Haiti's infrastructure to avoid the kind of catastrophic outcome that occurred on January 12: Adopt strong building codes and land use planning procedures that avoid building in hazardous areas, and appoint government agents to ensure compliance. Chile (and Portugal) has shown us the way. But none of that is likely to happen until Haiti's pervasive corruption is resolved . . . or at least circumvented.

Why not appoint an authority responsible for overseeing Haiti's rebuilding effort (I admit here that I am building on a proposal offered up by another at a wonderful conference on Haiti hosted by California State University Sacramento last week)? The authority would be composed of Haitian government officials, to be sure, but also Haitian businesses and citizens, NGOs, and international donors, all of whom have an ultimate stake in the outcome. Who would demand that Haiti establish such an authority? Certainly the Haitian people should, but Haiti's government is not susceptible to the popular will. The international community, which is bringing in millions of dollars to sustain Haiti, does have the clout to demand the creation of such an authority. We should use it.

The Haitian earthquake is a catastrophe of unfathomable proportions. It should serve as a galvanizing force for change in the way Haiti has functioned. This cannot happen without a fundamental shift in the way Haiti does business. We need change.

About that limo, M. le Président ...

A French NGO has caught an investigator's attention with its complaint about excessive spending by 3 African leaders -- all 3 of whom, it should be noted, hail from countries whose people are said to suffer from human rights violations.

Reuters reports from Paris that a French juge d'instruction has opened an investigation into whether assets held by the Presidents of 3 oil-rich African countries came to them by way of public corruption.

Proceedings could extend to many posh holdings; specifically, in the case of:
► Teodoro Obiang Nguema, Equatorial Guinea's President since 1979, and family: At least 1 property, 1 bank account, and more than 4 million euros worth of luxury vehicles. Among them is the Rolls-Royce Phantom limousine depicted above, said to have been bought by Obiang's son. (photo credit) Obiang has been dubbed among the few "African despots who make Robert Mugabe seem stable and benign" by The Independent of London.

► Omar Bongo, President of Gabon since 1967, and family: 39 properties, 70 bank accounts, and nearly 1.5 million euros worth of luxury vehicles. In January Bongo, the world's longest-serving ruler, was publicly criticized by members of the U.S. Congress for having arrested and otherwise harassed members of civil society who campaign against public corruption.
► Denis Sassou-Nguesso, since 1979 the President of the Republic of Congo (commonly called Congo-Brazzaville to distinguish it from the neighboring state whose capital is Kinshasa, the Democratic Republic of Congo): 24 properties, 112 bank accounts, and more than 172,000 euros worth of luxury vehicles. In Sassou-Nguesso's country, slavery of 1 ethnic group by another is reported to persist.

Judge Françoise Desset decided to open the criminal-finance investigation in what's known in France as l'affaire BMA -- for "biens mal acquis," or "ill-gotten goods" -- based on a partie civile complaint filed in December by a Gabon citizen and Transparence International France, the French chapter of the global nongovernmental organization devoted to fighting public corruption, Transparency International (prior post). Judge Desset made her decision against the advice of the public prosecutor's office. The prosecution, which had declined to act on a inventory of the assets made by French police in 2007, may appeal her decision.

Despite the risk of upset on appeal, the attorney representing the parties civiles, William Bourdon, lauded Desset's initiative:

'This is a decision without precedent, because it is the first time that a judicial investigation has been opened concerning the alleged misappropriation of public funds by incumbent heads of state. From now on it is possible to identify and pursue those who, repeatedly and deceitfully, impoverish their own countries.'

It also suggests a Capone-precedent path to pursuit of leaders who fail to protect the human rights of their own people.

NGOs bear witness

2 days, 2 nongovernmental organizations, 2 annual reports that show how civil society can shape debate on matters of international interest:
"The politics of fear" as practiced by states and armed nonstate actors "is fuelling a downward spiral of human rights abuse in which no right is sacrosant and no person safe," Irene Kahn (left), Secretary General of the 46-year-old, London-headquartered Amnesty International, declared in announcing the release yesterday of the organization's annual report. Country-by-country, the report documents abuses from Afghanistan to Zimbabwe, placing special emphasis on excesses of antiterrorism and repression of persons who use the internet as their medium for freedom of expression.
Another NGO zeroed in on its keystone concern: "Justice with a price tag is no justice at all," stated Huguette Labelle (right), chair of Transparency International, a 14-year-old group headquartered in Berlin. Her comments marked today's release of the 2007 Global Corruption Report. It traces the infiltration of bribery and political interference in all corners of the planet and at all points in the legal process -- from 1st encounters with police, to prosecutorial investigation, to adjudication itself. The report then sets forth ways to reduce corruption, among them greater transparency in selection and removal of court officials, stronger enforcement of anticorruption measures, unfettered media coverage of proceedings, and vigorous scrutiny by bar associations, private persons, and other sectors of civil society.