KUSOL A RESEARCH

Safeguarding Human Rights Through Combating Corruption

Safeguarding Human Rights Through Combating Corruption

DEFINITIONS

DEFINITIONS

Corruption is defined as dishonest or fraudulent behavior by someone in power typically involving bribery-oxford dictionary.  

Human rights are the rights inherent to all human beings independent of their nationality, place of residence, sex, color, religion, language or any other status whatsoever. These rights are all interdependent, interrelated and indivisible. They also include civil, political, economic, social and cultural rights. 

Initially, human rights were the preserve of independent states but after the Second World War, states adopted the Universal Declaration of Human Rights thus making human rights an international affair. This was the genesis of crimes against humanity, where the perpetrators of such crimes are subjected to the international community rather that their domestic jurisdiction. Corruption has been categorized as a crime against humanity in some situations such as where grand corruption has been committed; it is corruption at a higher level.

THE RELATIONSHIP BETWEEN CORRUPTION AND HUMAN RIGHTS

THE RELATIONSHIP BETWEEN CORRUPTION AND HUMAN RIGHTS

The causal link between corruption and the abuse of human rights is one which has received little attention if any. However, a survey of the corrupt nations in the world is likely to show that cases of the abuse of human rights are rampant in those nations well. The term “corruption violates human rights” is mostly used to mean that whenever corruption is in play, people lack security since the whole of the criminal justice system fails in carrying on their duties efficiently. For instance, a police officer who takes a bribe and fails to apprehend an offender endangers the public’s life. The statement also implies the people’s inability to access justice as the magistrates and judges are biased in making their rulings and decisions and tend to rule in favor of the party that gives out bribe. Lastly, the aforementioned statement will also be used to explain that people are unable to protect their livelihoods. Further widespread corruption brings about discrimination against the poor people, the vulnerable groups including women, children, refugees etc. 

A good scenario to explain a country where corruption is prevent is where people do not enjoy basic rights which are essential to all human beings all over the world such as the access of basic need; food, shelter and clothing. The citizens of such a country lack employment, a basic salary, and their children cannot access education since funds have been embezzled. Those lucky enough to be in the comfort of a classroom end up lacking books since the money spared for such  goes missing mysteriously. Further, the farmers who depend wholly on the profits they get selling their products end up earning so little, barely enough to sustain themselves since the police get a large share of the profits, the government also end up distorting a great amount of money from them in the name of taxes. Poor infrastructure posses another major problem to the farmers as it hinders them from transporting their products to the markets. However, the most notable effect of a corruption is imbalance of resources as well as living standards of people in a similar geographical area. 

There are three ways in which corruption affects human rights namely; directly, indirectly and remotely.  

In the direct way the corrupt act infringes on the human rights directly for example where corruption of judges and magistrates in the judicial process is used to deprive one of their personal property which is a direct infringement of the inherent individual right to own property. In the indirect way, the corrupt act is the first in a chain that sets off a reaction that leads to the violation of a human right. In the remote way is where the corrupt act itself does not violate human right. Thus, the cogent conclusion is that corruption impacts negatively on human rights in the economic, social and political spheres.

STATES OBLIGATION IN COMBATING CORRUPTION.

STATES OBLIGATION IN COMBATING CORRUPTION.

As discussed above, corruption is mainly initiated and carried on by people in power which mostly include those in the public institutions and the private sector to a certain extend. Therefore, it is important to note that corruption acts are generally orchestrated by ‘the big men’ in the society. A good example of these people include the politicians, tycoons, members of the judiciary, civil servants, non-governmental organizations and other organizations comprising of members of the Developed countries etc.

States have three mandatory obligations that they need to perform to combat corruption in their bid to protect human rights namely the obligation to ‘respect’, ‘protect’ and to ‘fulfill’ human rights. 

  1. The obligation to respect human rights requires states to refrain from anything that may deprive the citizens from the enjoyment of their rights or rather anything that may make it difficult for the people to realize their rights on their own volition.
  2. The obligation to protect human rights requires states to avert violations of human rights by third parties of other state actors. The state is therefore expected to come up with measures that will ensure that every individual is protected from any kind of harm, this can only be achieved by enacting appropriate legislations and the maintenance of competent institutions such as the police and judiciary to ensure that non compliance with the law subjects one to the judicial process where one can seek a remedy.

The obligation to fulfill human rights requires the state to take proper measures to ensure that every individual in at the disposal of the basic needs that they cannot get on their own. And basic needs include those recognized in the human rights instruments. 

A successful fight against corruption will only be achievable if corruption is taken as a unified problem rather than an individual quest. Consequently, a comprehensive response to corruption entails competent institutions, good governance, appropriate legislations and involvement of the stakeholders in the public and private sectors. The fight for corruption calls for a complete transformation of the governmental institutions as well as the society in whole. For these reason therefore, elements such as an independent judiciary, freedom of the press, freedom of expression, transparency in the political system and accountability must be present in any anti-corruption strategy. 

 Transparency and accountability in the political system suggests that states should enact laws that mainly protect peoples’ right of expression, ensure that the public is afforded the right to participate and have a say in all the decisions made by the government. The Kenyan constitution in its preamble as well as Chapter one provides that sovereign power belongs to the people of Kenya and should be exercised according to the constitution.

First and foremost, states should ensure that every member of the public institutions be subjected to a vetting process with an aim of looking into the any kind of allegations of misconduct. Kenya for instance has come up with an array of provisions in a bid to impede corrupt officials from assuming public office positions such as Chapter 6 of the constitution on Leadership and Integrity that stipulates that any public official should act in a way that avoids personal conflict and their official duties.

The relationship between corruption and human rights has for long been neglected and only started generating interest recently.  To best understand this, one has to assess the impact of corruption on human rights in the context of rights in the economic, political and social spheres.

ECONOMIC RIGHTS

ECONOMIC RIGHTS

The relationship between corruption and the economic performance of a country has been the subject of countless publications, research and reports. In a nutshell, the common conclusion in all these instances is that corruption is inversely tied to economic performance. The higher the rates of corruption in a country, the lower its economic performance will be and vice versa.

But how does corruption affect the economic rights of the citizens in a country? High levels of corruption are detrimental to human rights application in a country in that they hinder the state from fully discharging its duty and mandate to uphold, protect fulfill and respect the human rights of its citizens.  

The International Covenant on Economic, Social and Cultural Rights (ICESCR) imposes obligations on State parties to promote various human rights. In a country where corruption is rampant, the discharge of this mandate is hindered in various ways. Articles 11, 12 and 13 of the ICESCR and Article 43 of the Constitution of Kenya provide for a number of rights that can be termed as economic rights. These rights include but are not limited to; the right to adequate housing, adequate food, a reasonable standard of healthcare, education, reasonable standards of sanitation and access to clean water, to name but a few. In the promotion of the right to education, corruption has been a hindrance to the effective discharge of the State’s mandate towards its citizens in Kenya. Misuse of public funds, especially in relation to Free Primary Education by government officials has deprived countless children from achieving the full realization of the right to education. In bursary disbursements, corruption and nepotism denies the neediest of cases from benefitting from the subsidy, but instead favors the politically connected and those in a position to pay bribes. This applies in the delivery of services to realize all the other rights provided under Article 43 of the Constitution of Kenya.

The other aspect of economic rights is the right to employment, to join a trade union, reasonable remuneration and working conditions and the right to strike. The ICESCR provides for these rights under Articles 7, 8 and 9 while the Constitution of Kenya provides for the same under Article 41. Corruption has been used to subvert the law and infringe on these rights in many ways. From relevant authorities turning a blind eye to unfair labour practices and complaints from workers for a bribe to the corruption of workers union officials during remuneration negotiations, corruption has entrenched itself as an impediment to the promotion and effective application of human rights in the economic sphere.

POLITICAL RIGHTS

POLITICAL RIGHTS

The International Covenant on Civil and Political Rights (ICCPR) provides for the core foundation of all political rights, the right to self determination under Article 1. The same is provided for in the Constitution of Kenya under Article 38.

Corruption has for long posed a very serious threat to self-determination. In many developing nations, Kenya being a good example, leaders are rarely elected based on their performance credentials in public service, but rather on the depth of their pockets. From the buying of votes to the hiring of goons to intimidate political opponents while the law enforcement officials look the other way, corruption has been a major cause of the poor leadership standards that bedevil most developing nations. Recently in Kenya, we had the last parliament watering down the provisions of the law that were deemed as being too stringent, since the standards of integrity set therein locked out most if not all of the members of the political class from running for office. Politicians use their political clout to corrupt their way into lucrative deals, which in turn makes it very easy for them to apply corrupt means to stay on in power. In this way, corruption hinders the realization of human rights in the political sphere, since it creates a class of people who operate above the law thus nurturing a culture of impunity.

SOCIAL RIGHTS

SOCIAL RIGHTS

The ICCPR provides for some social rights. The freedom of expression and the freedom of association, the right to success of information and the right to an identity are some of the rights that fall under this category. Articles 16 and 18 of the ICCPR touch on the right to identity and the freedom of thought speech and association and the right to privacy, to name but a few. The same rights are addressed by the Constitution of Kenya under Articles 31 to 37.

Corruption affects the realization of these rights negatively. In the National bureau of statistics in Kenya for example, corruption has made the process of getting identification documents a long and tedious process for majority of Kenyans. However, this changes upon payment of a bribe whereby the process is speedily expedited. Corruption here infringes upon the right to an identity and nationality directly. It also poses a great risk to the right to security as exemplified by the recent terrorist attacks in Kenya whereby terrorists gained access to legitimate Kenyan identification documents by virtue of bribing corrupt government officials.

CONCLUSION

CONCLUSION

From the above illustrations, it is now established as a fact that corruption is a threat to the realization of Human Rights. The only way that the full realization of the full enjoyment of human rights would occur is through the combating of corruption and among other threats.