Angela Barkhouse: What happens when the corrupt regime is gone?

An excellent paper written by Roger Alford conceptualized the broken windows theory in corruption premised around the idea of a building with a few broken windows: If the windows are not repaired, the tendency may be for vandals to break a few more windows. Eventually, they may even break into the building, and if it’s unoccupied, perhaps become squatters or light fires inside.

It is not so much the actual broken window that is important, but rather the message the people receive from the broken window. It is a symbol of defenselessness and vulnerability by the community and is a representation of the cohesiveness of the people within.

Showing political will in combating corruption is essential not only for rule of law and social cohesion but for the reconciliation of the truth and for ensuring justice. This has been increasingly absent in a number of efforts to investigate gross human rights violations and corrupt acts in Tunisia. 

Created through the Transitional Justice Law adopted on December 24, 2013 the Truth and Dignity Commission (TDC) or Instance de Verite & Dignity (IVD) was mandated with investigating these violations since its independence in 1955 to December 2013 and incredibly the IVD received over 60,000 cases for investigation.   

However its efforts appear to have been undermined; members of the government were noticeably absent from public hearings, and the TDC was prevented from accessing files in the Ministry of Interior, despite it being a centre for systematic torture and abuse. Members of the old regime’s political and business elite, including national media have been openly critical of its President Sihem Bensedrine and its function.

Instead, the government proposed a new “Administrative Reconciliation Law” which was ultimately established on September 13, 2017 despite huge protests across Tunisia from its citizens, from NGOs and with condemnation from the international community. It was a derivative of the Economic Reconciliation Law, a law which proponents argued would revitalize the economy and assist in streamlining the multitude of investigations being pursued, by proposing a mechanism whereby corrupt officials and business men from the Ben-Ali era could self-declare illicit gains and return a portion of them to the state in exchange for amnesty.

This was ultimately amended, to ensure it passed political debate to include only civil servants and politicians who had purportedly followed instructions and did not personally benefit from corrupt acts.

This is one example of many difficulties that a country may face when a corrupt regime is ended: How do to deal with the corrupt that served under the previous regime? 

Amnesties may be one solution, applying it for those who may have had no alternative but to execute orders or face retribution. Indeed, amnesties in the correct environment, can help to recover the truth, restoring faith in justice and in society.

However, in this case, the bill does not enable a judicial process to identify who simply followed orders and who acted for their own personal benefit. It offers no investigative mechanism for understanding how the financial wrong-doing took place, investigating the underlying transactions and their basis, or identifying the ultimate destination of funds. Nor does it require individuals who receive amnesty to provide any information or evidence about their past conduct or where their assets came from, which must be key to any reconciliation and recovery process. 

The IVD’s mandate, will likely be brought to an end. As a result, the law is highly improbable to be an effective tool in combating corruption and bringing reconciliation to the citizens who suffered. Offering a blanket amnesty as a form of impunity for all politicians who have personally benefited from crimes past committed will not heal wounds, but rather allow them to fester and reopen at every opportunity. Amnesty should only be given where full cooperation is received in return, where offenders mediate a restitution agreement to the satisfaction of all parties, including the community.

While I don’t oppose an amnesty where the facts have been established, it is by holding the perpetrators of corruption personally accountable for the harm caused to the society by whom they are elected to protect, that the perception of impunity can be eroded.   

Experience has taught me not to rely on one mechanism more than another; combating impunity can be achieved through a broad range of options, whether investigating and recovering through domestic criminal proceedings, private civil actions, mediation and arbitration, through insolvency in the enforcement of debt through non–performing or fake loans owed by those who stole money through the banking system or through convoluted and fraudulent business contracts, or in the recovery of proceeds of crime using asset based forfeiture. The recovery of stolen assets must remain at the forefront of any reconciliation process, but more importantly, the process must be transparent.  

It appears that the government has forgotten in its haste to protect those guilty of corruption and human rights abuses, that corruption is a public trust issue, and that public trust is essential for the rule of law. In the case of the broken windows concept, Tunisia appears to be signaling that it will offer impunity for the corrupt and that it intends to protect those by keeping information hidden from public scrutiny, which in this author’s view, will only serve to heighten the discord between the state and its citizens.

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Angela Barkhouse, pictured above, is a Director at Kalo, a company founded on the core principles of finding ethical solutions and creating a lasting impact. She has 15 years of professional experience investigating bribery and corruption, and making cross-border asset recoveries. She holds a Bsc in Applied Accounting from Oxford Brookes University and a Msc in Criminal Justice Policy from the London School of Economics and Political Science. She is a Fellow of the Association of Chartered Certified Accountants, a Certified Fraud Examiner, and a Practitioner. https://www.linkedin.com/in/angelabarkhouse/