Someone recently told me that it was more important “optically” to prosecute corruption than to focus on recovering assets. Yet history tells us that prosecutions for kleptocracy are rare. And even when convictions happen, the merry-go-round of politicians prosecuted for graft, only to be released after the next elections, is nothing short of a tragic comedy.
Worse, many of those who are convicted thumb their nose at the voting public, by returning to their gilded mansions (bought through illicit means) to serve their sentence under restricted, but comfortable, house arrest for “medical reasons.” Strange how so many kleptocrats become seriously ill after arrest…
A change in the way we prosecute corruption is needed if we are to have any hope in deterring and holding to account those who unscrupulously take advantage of human suffering and economic disruption. In my view, that means celerity in the investigation and prosecution process, sufficient severity within the law for reprimanding corrupt acts, and the certainty that the person will not benefit from their illicit gains.
Some or all of these deterrents are often lacking in prosecutions involving kleptocrats. In my view, better outcomes can be achieved through civil recovery. Even where the political will to pursue convictions exists, criminal prosecutions are harder to initiate, the burden of proof higher, and the resources available to see an investigation through to the end are sometimes limited.
Seeking civil recovery in parallel ensures that the law is still able to provide restitution:
- Civil actions are often quicker to initiate and can cross borders more swiftly.
- They provide a degree of certainty based upon a balance of probabilities or preponderance of the evidence, rather than beyond all reasonable doubt, that unjustified wealth was gained through illicit means.
- The loss of businesses, reputation, profits, and illicit wealth following a successful civil recovery case demonstrates a commitment to disciplining corruption within government.
Despite knowing that it is often possible to bring actions in parallel by staying the civil action until the outcome of the criminal trial, this approach is still resisted in many quarters. It is not my view that civil actions should compete with multilateral actions and criminal justice alternatives to recovery; however, there is room for a dual process that results in a more effective deterrence and restitution.
So let us not just convict for the crime, but also confiscate its spoils. Let us focus on anti-corruption measures to prevent and also to deter corruption through civil confiscation mechanisms. Deterrence must be part of prevention. It is an irresponsible government that fails to take steps to recover stolen public property while livelihoods are directly impacted to the extent that we have already witnessed.