What has been most bewildering about the president’s absence is the subtle yet apparent lack of leadership that continues to cloud Africa’s most populated nation. Legally, the January 13th ruling was supposed to put the country back on track. Yet, the judgement has  failed to soothe tempers. As recently as January 27^th 2010, the Nigerian cabinet and Senate continue to be at odds regarding who is governing their country. The question seems to remain: how do we account for the governing activity from November 2009 to now? In particular, what of the 2010 budget that is being negotiated in the president’s absence? It is true that in the time Yar’Adua has been away, Nigeria has suffered religious unrest in the Niger Delta and has faced questions about its national security in the wake of a terrorist attack by a Nigerian national. However, I focus in this article on the budget because of its susceptibility to corruption.

Brewing corruption?

Section 81 of the Nigerian constitution requires that “the President shall cause to be prepared and laid before each House of the National Assembly at any time in each financial year estimates of the revenues and expenditure of the Federation for the next following financial year”. In Yar’Adua’s absence, progress on the country’s 2010 budget has stalled. Jonathan, as a member of the executive branch of government has attempted to move the debate forward. While this act of flawed heroism may deliver the country’s new budget, Jonathan has limited or no legal authority to move the budget forward. Essentially, his authority is still mandated by an absentee president who has yet to cede power to him. In a country that is in throes of fighting corruption, this is a problem. The nebulous circumstances in which the 2010 budget is being formulated raises serious questions about the expenses included in the document, and subsequently, how to allocate accountability for questionable expenses.

International stage

As corruption increasingly becomes part of an international dialogue, it attracts universal censure without universal definition. Nigeria is party to the UN Convention against Corruption. In a seeming acknowledgement of cultural relativism, the document provides no firm definition for corruption but instead imparts a broader moral statement on the effects of corruption. Although the document successfully isolates aspects of corruption such as bribery, the absent definition leaves gaps in place. Admittedly, these gaps allow countries to tailor concepts of corruption to their society. However, failure to commit to a unified understanding of the concept very much leaves States discussing the light while sitting in the dark. The Convention forces States to collectively censure an act they have not yet collectively imagined. As David Kennedy rightly articulates, “however difficult it might be to define “corruption,” in polite society one must be opposed to it”.

In an increasingly globalized world, the effects of corruption bleed across borders. A broad but universal definition could thus serve as the foundation in a crusade against global corruption. Instead of a relaxed deference to cultural relativism, perhaps a more successful approach would be to re-associate a universal principle – guarded by all cultures – with corruption. One such principle would be democracy. By democracy, I speak of the notion that the power of governing bodies is inherent in the political mandate given by the people. Democracy is universally understood as a system of checks and balances between the government and the people. Linking the concept of corruption to the principle of democracy would allow a definition to subtly pierce the veil of cultural relativity.

Central to the idea of democracy is accountability. It is this lack of accountability with regard to the 2010 budget that has left Nigeria susceptible to corruption. Continued reticence to marry democracy and corruption stalls the progress of states trying to fight corruption. Many corruption opponents including Transparency International point to democracy as a source of stability through which control mechanisms for corruption can be put in place. I push further in suggesting that principle of democracy could be a possible point through which States’ may more adequately unite around a Convention defining their cause – corruption. The Nigerian example is emblematic of the inherent relationship between democratic accountability and corruption. Of course, some will say that the Nigerian situation is unique. That may be true, but Canadians today will tell you that an absent branch of government is not so unusual.

Proceedings against Radovan Karadzic began on October 28, 2009, despite the accused’s refusal to attend court. The case was supposed to start on October 26 but Karadzic, who is representing himself, asked for at least eight more months to prepare his case. The court gave him 24 hours to change his mind. After he failed to appear on Tuesday, judges ordered the Prosecution to open its case and warned Karadzic to appear in court or risk having counsel assigned to him and being tried in absentia.

For more information, see the Reuters article or our own Lee Rovinescu’s analysis of the situation.

2. R. v. Munyaneza

On October 29, 2009, Justice André Denis of the Quebec Superior Court handed down a life sentence to Désiré Munyaneza, the Rwandan genocidaire who helped organize and perpetrate the mass-murder of Tutsis in the Butare area. On May 22, 2009, Justice Denis found Munyaneza guilty of two counts of genocide, two counts of crimes against humanity and three counts of war crimes. Having concluded that the killings were premeditated, Justice Denis held that Munyaneza would not be eligible for parole for 25 years.

Munyaneza was the first person to be charged under Canada’s Crimes Against Humanity and War Crimes Act. The Act incorporates universal jurisdiction, allowing Canada to prosecute any individual present in Canada for genocide, war crimes and crimes against humanity.

3. United States of America v. Cail

On October 26, 2009, the Alberta Court of Appeal upheld the Minister of Justice’s decision to extradite Ronald Cail, a Canadian citizen and Albertan resident, to the United States (US) for the distribution of child pornography.

Having allegedly distributed the material via his computer from his Alberta home, Cail argued that the evidence did not establish that the crime at issue occurred within the foreign jurisdiction. He essentially relied on s. 47(e) of the Extradition Act, which provides that the Minister may refuse extradition where “none of the conduct on which the extradition partner bases its request occurred in the territory over which the extradition partner has jurisdiction”. The Court acknowledged this basis for refusal but added that it was discretionary and not absolute. It supported the Minister’s privileging of US interests in prosecuting the crime over those of Canada. In so doing, the Court implicitly privileged the use of an interests-analysis approach when making extradition decisions over the use of traditional localization rules. The court notably admitted the difficulty in determining the location of such a crime: “when someone sends child pornography over the internet the crime is partly committed at both ends of the transmission”.

Cail also argued that “it would be unjust or oppressive for [him] to be tried in the US for an offence allegedly committed in Alberta, in the absence of assurances regarding funding for legal assistance”. Dismissing this argument, the Court posited that “the Minister is entitled to assume that the person sought by the foreign jurisdiction will receive a fair trial there”. Drawing on Canada v. Schmidt ([1987] 1 S.C.R. 500), the Court concluded that the Minister of Justice only has to seek assurances when extradition would “shock the conscience” of Canadians.

For more information, see the full decision.

4. ‘Honduras’ v. Brazil?

On October 28, 2009, the Interim Government of Honduras filed an application to institute proceedings against Brazil at the International Court of Justice. According to the ICJ press release, the Interim Government seeks a declaration that Brazil has breached the principle of non-intervention by allowing ousted President, José Manuel Zelaya Rosales, and his supporters to take refuge in the Brazilian embassy and use the premises as “a platform for political propaganda and thereby [threaten] the peace and internal public order of Honduras”.

James Harrison of International Law Observer argues that it is “a particularly controversial [move] given the international condemnation of the coup d’etat”. Brazil has already indicated that it does not consider the interim government to be competent to bring the case. As Dapo Akande writes at EJIL talk, the ICJ may get to pronounce on whether the new “government” is actually the government. For a preliminary analysis of this issue, see Akande’s full post.

Nonetheless, the future of the proceedings is now in question: on October 30, 2009, the interim leader of Honduras, Roberto Micheletti, signed an agreement with Zelaya to end the crisis and create a power-sharing government.

5. French Embezzlement Probe Against African Leaders Comes to a Halt

Anti-corruption group Transparency International had accused Omar Bongo of Gabon, Denis Sassou-Nguesso of the DRC, Teodoro Obiang Nguema of Equatorial Guinea, and their relatives, of acquiring luxury homes and cars in France with African public funds. On October 29, 2009, the Court of Appeal of Paris ruled that the complaint was inadmissible because the NGO had no interest in the matter. The court justified this decision with a finding that the NGO had not suffered a direct personal injury from the alleged corruption. Transparency International has already announced that it will appeal this decision to France’s highest court.

For more information, see the le Monde or Reuters articles.

6. Do Predator Drone Attacks Violate International law?

On October 27, 2009, Philip Alston, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, warned that the United State’s use of unmanned warplanes to carry out attacks in Pakistan and Afghanistan may be illegal. Reiterating concerns that he raised with the US in June, Alston criticized the US administration for failing to reveal

the legal basis on which the United States is operating the drones, [the] precautions it is taking to ensure these weapons are used strictly for purposes consistent with international humanitarian law, and [the] mechanisms … in place to review the use of the weapons (Reuters).

Opinio Juris’ Kenneth Anderson, who has written extensively about targeted killings, believes that the US’ targeted killing program is perfectly legal but regards the unwillingness of the Obama administration to clearly state the legal basis on which this program operates to be “a serious legal policy mistake”.

7. US and EU Reach Agreement on New International Criminal Law Treaties

On October 28, 2009, the US and the EU announced an agreement for two treaties on mutual legal assistance and extradition. The new treaties seek to improve EU-US cooperation in combating terrorism, cyber crime, international fraud, human and drug trafficking, and other serious international crimes. According to the Courthouse News Service, the new treaties “include first-time rules that would allow EU countries to refuse to extradite criminals that might be subject to the death penalty, but left dangling the issues of Guantanamo Bay prisoners”.

For more information, see the US Department of Justice press release and the Jurist article.

Other notable developments and opinions:

• Janet Albrechtsen – Has Anyone Read the Copenhagen Agreement?
• The U.N. backed negotiations on global arms trade treaty
• U.N. again condemns U.S. embargo against Cuba
• U.N. Chief Ban Launched an Inquiry Into Guinea Protest Violence