The Prosecution of Presidents

By Miren Gutiérrez 

Mail&Guardian 
August 1, 2003

Liberia, Zimbabwe and South Africa face diverse dilemmas with a common theme: the prosecution of sitting presidents or of their deputies. Liberian President Charles Taylor has been subpoenaed to appear before the war crimes tribunal. In Zimbabwe, negotiators from both sides - the ruling Zanu-PF and opposition Movement for Democratic Change - are debating the future of President Robert Mugabe, who faces charges of gross human rights violations.

And in South Africa the country was agog this week at the allegations being contemplated by the Scorpions in their possible corruption charges against Deputy President Jacob Zuma. The Sunday Times revealed 35 questions that prosecutors allied to the Scorpions team want to ask Zuma as they seal up the alleged corruption charges against him. Zuma's not yet been charged, but should he be, the case will be a novelty.

South Africa is in a minority of countries that allow for the prosecution of sitting presidents. "The habit was to have immunity from prosecution while in office, but the modern trend is against that - if you're serious about accountability," says Richard Calland of the Institute for Democracy in South Africa.

The dilemma of whether to prosecute is not Africa's alone. Italian Prime Minister Silvio Berlusconi is off the hook for the time being. In June the Parliament approved an Immunity Bill that will freeze a trial in which he is charged with bribing judges over a 1985 corporate takeover battle. The magistrates can investigate but cannot touch him while he is in power. In the same case, his former attorney, Cesare Previti, was sentenced to 11 years in prison for bribing judges on his behalf. Immunity is not his only buffer. He faced criminal charges of false accounting before his government decriminalised it and gave defendants the right to have their case transferred if they have "legitimate suspicion" that a court is biased. Berlusconi has been cleared of most charges. In one remaining case, he has applied for the trial to be transferred. But if he loses the elections in 2006 or loses power before then (recent history shows this can happen), he could go to prison if found guilty.

Corrupt presidents cannot afford to lose power. Without the armour of presidency, the world is inhospitable. "All presidents generally, corrupt and not corrupt, want to hold power for as long as possible," says Charles Lewis, executive director of the Centre for Public Integrity in Washington. "But a corrupt president also wants to stay in power to keep getting rich and protect himself from the jaws of justice."

Peter Eigen, chairperson of Transparency International in Berlin, says: "It is essential that politicians and public officials know that corruption is a high-risk strategy." The main obstacle to bringing former Nicaraguan president Arnoldo Alemán to justice was that he enjoyed immunity: he was appointed president of the Nicaraguan Assembly after he stepped down as president. Alemán faces charges of misappropriating at least $100-million in one of Latin America's poorest countries.

Former Zairean president Mobutu Sese Seko is probably the most notorious case of a president using the state as private property while protecting himself from prosecution. He ruled for more than 30 years, and pocketed an estimated $5-billion. He had the backing of Western leaders and institutions that saw him as a foil to leftist states such as Angola.

Liberia comes close as a leading example of semi-official kleptocracy. The law gives Taylor the right to dispose of all "strategic commodities" such as mineral resources, timber and artefacts. Now facing international charges for human rights violations, Taylor is refusing to leave office unless the charges are dropped. Nigeria is considering granting him immunity.

Many other presidents have gone abroad on permanent holidays. Former Peruvian president Alberto Fujimori, dismissed in November 2000 as "morally unfit" to govern, left for Japan and has not returned.

Or, there is Joseph Estrada, former president of the Philippines, who claimed he was too ill to be prosecuted. His medical bills would not be a problem, though. Ousted in 2001 by a popular uprising, he stands accused of stockpiling $78-million from a gambling racket, misappropriated tax revenues and illicit investments.

The law has never caught up with some presidents, even if they took no precautions. The term of former Panamanian president Ernesto Perez Balladares (1994 to 1999) was plagued by corruption cases. A "narcocheque" funded some of his presidential campaign, his ministers appropriated state property, his direct involvement in the sale of hundreds of visas to Chinese emigrants on their way to the United States was well documented. But the cases never got to the courts.

Panama has been a well-known refuge for runaway presidents. Ousted by the Congress following corruption allegations just six months into his presidency, Abdalá Bucaram fled Ecuador to take refuge in Panama. His elected successor, Jamil Mahuad, was overthrown by a coup in January 2000 after it was discovered he accepted campaign donations from a corrupt banker.

General Mohamed Suharto, whose family controlled an empire in Indonesia worth between $16-billion and $35-billion during his 32 years in power, has survived three successors since he resigned in 1998. BJ Habibie, Abdurrahman Wahid and President Megawati Sukarnoputri have failed to bring him to trial. "Presidents and even former presidents are very powerful, and prosecuting them requires the will to prosecute," says Lewis. "It usually requires months if not years of public exposure and mounting disgust; gutsy, fearless law enforcement officials; and judges who do not flinch in the face of power."

How far are heads of state responsible for widespread corruption under them? "They are totally responsible," Lewis says. The tone and attitude about corruption start at the very top, in the first hour they are sworn in.

"There is a legal, prosecutorial standard, the famous line about the abuse of power during Watergate in the US: What did they know and when did they know it," he says. "But there is a moral and political standard that is less literal. With the first whiff of corruption, did the leader act decisively to cleanse the situation? Inaction and silence speak volumes."

The establishment of the Scorpions unit five years ago has thrown public and private sector corruption into the spotlight, with the netting of leading political figures like African National Congress chief whip Tony Yengeni and MP Winnie Madikizela-Mandela. That they have been successfully prosecuted is symbolic of an ability to deal with corruption. The looming case against Zuma sets a new milestone. Says Eigen: "A head of state or government must demonstrate the political will to fight corruption, but success requires a broad base of support and engagement. For instance, in Nigeria, President Olusegun Obasanjo is fiercely committed to fighting corruption, but he cannot achieve that on his own. He needs the engagement of the political parties, the civil service and ordinary Nigerians."

Of the 10 countries seen as the most corrupt in the Transparency International index of last year, half are in Africa. Taking the worst first, they are Bangladesh, Nigeria, Paraguay, Madagascar, Angola, Kenya, Indonesia, Azerbaijan, Uganda, Moldova. But few African presidents have been prosecuted. Are corrupt presidents more likely to escape in Africa?

"The widespread corruption of the regime of Sani Abacha in Nigeria or Daniel Arap Moi in Kenya is widely recognised, but corruption has been so pernicious in both countries that it would be wrong to focus on the heads of state alone," says Eigen.

Or on Africa alone. France and Germany have seen a president and a former chancellor investigated for corruption: Jacques Chirac for his involvement in the Elf scandal and for funding for his election when he was mayor of Paris, and Helmut Köhl for unlawful political donations. "Democracy without accountability is not much of a democracy at all," says Lewis. "The sad truth is that the most powerful, venal interests relatively easily manipulate whomever is in power, whether ... a repressive dictatorship or a democracy."

Many former presidents, like Chile's former dictator Augusto Pinochet, at least face accusations now instead of dying of old age or retiring at some beach resort on stolen billions. "It is an encouraging sign to me," says Lewis. "But the world still has far too much pervasive corruption that is never prosecuted."

About the Author: Miren Gutiérrez is editor-in-chief of the Inter Press Service. Additional reporting by Ferial Haffajee.