Luca Brocca
Just Access Representative to the UN Convention Against Corruption
Can strategic litigation dismantle the fortress of grand corruption?
Strategic litigation is increasingly being used by Civil Society Organisations and NGOs to tackle grand corruption, that is, the abuse of high-level power that benefits the few at the expense of the many. On 7 March 2024, Just Access took part in the 6th Grand Corruption and State Capture Working Group meeting organised by the UNCAC Coalition. During the session, a representative from Transparency International (TI) Sri Lanka highlighted the positive outcomes of strategic litigation used to combat grand corruption in their country, along with other strategies employed in the past years.
Grand corruption is the abuse of high-level power to benefit the few at the expense of the many
Now, let’s delve into the significance of strategic litigation in combating grand corruption through some case studies, including Sri Lanka’s case.
One of the most notable instances of strategic litigation used against corruption is the “biens mal acquis” case, a money laundering affair that stands as a paramount demonstration of how determined civil society groups can lead the prosecution of international grand corruption. It is an instance of transnational kleptocracy, where political elites divert state resources for personal gain, launder their illicit funds through the global financial system, and invest them where they are protected by the rule of law.
In this scenario, TI France and Sherpa provided legal assistance to hold corrupt African leaders including Omar Bongo (former President of Gabon), Denis Sassou Nguesso (former President of the DRC) and Teodoro Obiang (serving President of Equatorial Guinea) accountable for embezzling public funds and acquiring assets through corrupt practices. Their endeavours led to asset seizures and legal actions against those leaders who were implicated in corruption, which showed the influence of civil society in fostering accountability in cases of grand corruption. The conviction was upheld by the Cour d’appel (court of appeal) in 2020 and by the Cour de cassation (supreme court) in 2021, marking a historic milestone: the first time a high-ranking public official from a foreign government had been convicted in a corruption-related case.
Similarly, the case discussed during the UNCAC Coalition meeting showed the potential for TI Sri Lanka to use strategic litigation to tackle corruption in their country. In this particular case, Sri Lanka’s highest court ruled in a 4-1 majority in favour of the petition filed by TI Sri Lanka, according to which former president Gotabaya Rajapaksa, ex-prime minister Mahinda Rajapaksa, former finance minister Basil Rajapaksa, and other senior officials had violated the fundamental rights of the citizens by mishandling the economy, resulting in an unprecedented economic crisis and the country’s declaration of bankruptcy in 2022.
Numerous investigations related to grand corruption are currently underway globally, thanks to the efforts of organisations like TI and other NGOs. These organisations have shown creativity in their methods, for instance by initiating cases abroad to circumvent some of the obstacles and risks associated with investigating corruption domestically, like political interference or lack of independence of the national authorities, and by leveraging the full spectrum of legal mechanisms at their disposal.
While strategic litigation alone may not completely eradicate corruption, its efficacy in challenging entrenched power dynamics and advancing legal accountability shows its importance as part of a comprehensive strategy to combat grand corruption globally. The work of TI Sri Lanka is an inspiring example of how grand corruption can be addressed, and it is strongly supported by Just Access.
The work of TI Sri Lanka is an inspiring example of how grand corruption can be addressed.
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