U4 Helpdesk Query

Content

• Part I describes what an amnesty is, and how amnesties can advance anti-corruption reform.
  
• Part II presents lessons from countries in which amnesties have been used.
  
• Part III lists further readings that might be of interest.

Please also see:

a related Expert Answer, 'Sequencing of anti-corruption measures in post-conflict countries'.

U4 helpdesk reply

The query is understood to refer to the usefulness of amnesties in the context of anti-corruption reform efforts, in particular where certain members of society are intent on blocking such efforts to maintain their privilege and power. Since there are few concrete examples of amnesties in this context, this response also looks at a number of amnesties in other contexts that hopefully provide an insight into the potential pluses and pitfalls of dealing with past corrupt practice in this way. A brief overview as well as links to further reading are provided for each country example. This is followed by links to further general resources on the amnesty question.

[top]

Part I: How amnesties can be used to advance anti-corruption reform

Amnesties are often associated with significant political changes such as transition from autocratic to democratic government. They commonly arise from the need to appropriately address past injustices without compromising present and future social, economic and political stability. As such, amnesties are sometimes integrated within more comprehensive attempts at reconciliatory justice.

Amnesties have typically been used to deal with human rights abuses in societies where there has been civil war or violent political conflict. In such societies the rights and wrongs of the guerrillas/freedom fighters/combatants on each side are contested, and an amnesty can enable all sides in the conflict to begin again within democratic and peaceful structures. The human rights abuses that an amnesty addresses are considered to be political crimes. Corruption, per se, is not a political crime. To emphasise this point it is useful to consider how former combatants are rehabilitated after an amnesty: the idea is to politically rehabilitate former combatants so that they may participate in the, usually newly negotiated, democratic structures and engage in the democratic political process. In contrast, former perpetrators of corruption crimes are most certainly not encouraged to return to government or wield political power (to wit, the recent Peruvian Supreme Court decision to refuse permission to the disgraced former president Fujimori to stand for upcoming elections. See below the case of Peru in the country examples section).

No two forms of amnesty are likely to be the same, and their exact nature can vary greatly according to the class of persons, time-period, type of action/inaction and geographic area to be covered. Variations also exist in terms of the type of mechanisms involved in granting amnesty (i.e. via public or private hearings) and the form, if any, of restitution that is required in return. Additional amnesty-related approaches identified in the literature reviewed for this query include the practice of limiting new powers of investigation to actions/events that occur after a certain date as well as granting indemnity from prosecution for those who turn state-witness in relation to past crimes. Another similar approach - though one not necessarily linked to corruption - is the use of limited tax amnesties to tackle certain financial crimes, including offshore tax evasion. Such amnesties are often accompanied by the threat of prosecution for those who do not come forward during the amnesty period.

The potential use of amnesties in advancing anti-corruption reforms
Granting amnesties for those who have, in the past, abused their public power and engaged in corrupt practice is a controversial issue. As the country examples below indicate, such moves are often unpopular with the general public who may feel (sometimes rightly) that justice is being set aside for political reasons. Having said this, there are reasons why amnesties may, in some circumstances, be useful in advancing anti-corruption reform.

Positive benefits
In the new political environment following transition from a corrupt regime, there are likely to be changed rules and public expectations with regard to corruption and its prevention. Judging past acts of corruption that occurred in the old, corrupt environment by these new standards may cause a number of problems. Firstly, public expectations for retributive justice may quickly overwhelm the capacity of the new authorities to deal effectively with allegations of past corruption, as well as with present-day instances of corrupt practice. Secondly, any new consensus to embark upon anti-corruption reform may be jeopardised if those currently in positions of power are likely to be implicated in prosecution/investigation of allegations of past corruption. Granting some form of amnesty for past corruption may, on the other hand, allow a country's authorities and citizens to 'turn the page' and focus on present reforms and challenges. Where an amnesty allows for a public reconciliation process, the resulting information about past abuse may be useful for identifying weaknesses in procedures, laws and practices, thus informing present anti-corruption reforms.

Potential risks
Using amnesties in relation to anti-corruption efforts does, however, involve real risks. These risks need to be carefully considered and managed if such approaches are to be effective in supporting anti-corruption reform. The greatest of these risks is that an amnesty simply results in impunity for all past corruption and is seen by the public as a travesty of justice and by wrongdoers as a license to continue business as usual. Measures should be taken to mitigate this risk, including making amnesties subject to legal exceptions through which particularly heinous crimes can be investigated and punished. In order to win public trust, the mechanism for determining exceptions must be arrived at in a transparent manner and managed by those capable of doing so independently of political whim. The conditions under which amnesties are granted are also of great importance in minimising the risk of their abuse. A clear and transparent procedure for determining when and for whom amnesties can be invoked is a fundamental requirement, as is a commitment to revoke amnesties applied to those who commit violations of these conditions.

The following are general criteria for assessing the potential usefulness of amnesties in the context of anti-corruption reform efforts:

[top]

Part II: Lessons from specific experience: country examples

Americas - Nicaragua
In April 2005, the Liberal Constitutional Party, the Partido Liberal Constitucionalista (PLC), tabled a bill in the National Assembly that would grant an amnesty to anyone accused of a crime against the public administration during the past 20 years. This bill (and a series of others proposed since 2002) is directed towards freeing the former president (and PLC member) Arnoldo Aleman, who's tenure was from 1996-2001. Aleman was jailed in 2003 for 20 years for money laundering, fraud and embezzlement. The bill would also grant amnesty to other perpetrators of corruption and financial crimes during the same period. To the extent of our knowledge, actions seeking amnesty for Aleman are still pending.

On 5 November 2005 the strategy of the PLC changed in light of fierce condemnation and opposition from civil society and political groups. Amongst this opposition was "For Nicaragua", a civil society group formed in 2004 in response to the legislature's votes on constitutional reforms. "For Nicaragua" filed 90 legal challenges to the reforms before the Supreme Court, arguing amongst other things, that the national Assembly is not empowered to change Nicaragua's system of government without a national referendum.

For further reading, please refer to:

Transparency International, Global Corruption Reports (2005) and (2006), Country Reports: Nicaragua

See also archives of El Nuevo Diario (national newspaper in Nicaragua)
and, for reports in English, archives of Miami Herald logged on the Resource Center of the Americas.org.

Americas - Peru
In Peru the possibility of an amnesty to deal with the era of corruption during the presidency of Alberto Fujimori was not taken up by the investigators of the Fujimori-Montesinos inquiry. The current administration is in the process of dealing with the question of how to sanction those responsible and there is hope that successful convictions will go some way to overcome public perceptions that impunity is the norm in Peru.

For discussion of the Fujimori case see Transparency International, Global Corruption Report 2006.

Asia - Hong Kong's ICAC and Experience with Amnesties
In Hong Kong in 1974 the ICAC was set up mainly in response to police corruption. The ICAC proved highly successful in carrying out its mandate and as a result frequently clashed with police officers. Stemming from these clashes, the Governor of Hong Kong granted a partial amnesty in 1977 for minor offences committed before 1977. The Amnesty was controversial since some argued that it caught petty criminals and enabled the "big fish" to escape. (See UNODC Anti-Corruption Tool Kit at the link cited below). On the other hand it was argued that the amnesty enabled the ICAC to focus on the future rather than be overwhelmed with a backlog of cases inherited from the police, who were formerly responsible for such corruption investigations. The ICAC was able to conduct its work on a fresh footing and build public support without being tainted by accusations of a witch-hunt against past wrongdoings. (See TI Source Book)

Africa - South Africa's Truth and Reconciliation Commission
In 1995, the Promotion of National Unity and Reconciliation Act established the Truth and Reconciliation Commission (TRC) to assist South Africa's transition from the apartheid era to a multi-party democracy. The Commission's focus was on gross violations of human rights between 1960 and 1994. It extended an amnesty to those who fully and publicly disclosed their involvement in politically motivated human rights violations, sought to identify and locate victims of these abuses in order to facilitate reparations and, finally, compiled a report containing recommendations for future preventive measures. It effected its mandate through three committees: the Human Rights Violations Committee, the Reparation and Rehabilitation Committee, and the Amnesty Committee.

Corruption and financial crimes were never the focus of the TRC and its relevance for understanding the conditions in which anti-corruption amnesties have been effective is therefore limited. Through special hearings focusing on the role of certain social sectors, however, the Commission did shed some light on the way these sectors propped-up the apartheid regime, including through instances of corruption. In addition, certain aspects of the Commission's functioning may be of use in evaluating the strengths and weaknesses of such reconciliation processes in the context of anti-corruption efforts.

The TRC Amnesty Committee is of particular relevance to this query. Its primary function was to ensure that amnesty applications complied with the legal provisions underlying the TRC. According to these provisions, perpetrators could apply for amnesty for any act, omission or offence associated with a political objective committed between 1 March 1960 and 11 May 1994. Applicants that were granted amnesty would no longer be liable for prosecution or any civil claim for the actions in question. In order to be considered for amnesty a number of criteria had to be met, including that the applicant was to make a full public disclosure of all relevant facts.

The principle idea behind the establishment of the TRC was that of facilitating restorative justice. As such, it sought to strike a balance between amnesties and reparations for victims. Though the types of recommendations made by the TRC in terms of rehabilitation and reparations for victims of apartheid are specific to human rights abuse, the reparation issue is also of relevance in dealing with past acts of corruption. Public acceptance of the immunity from prosecution granted to perpetrators of such acts is unlikely to take hold if public admissions of guilt are not accompanied by some restitution of the proceeds of corruption.

A key feature of the TRC was that it relied heavily on the testimonies of the perpetrators and victims of apartheid era crimes. Though investigative teams were able to look into additional matters, they did not have the capacity to undertake substantial independent research. As a result, the breadth of crimes examined by the TRC was narrower than might otherwise have been the case. Another weakness was that few high-ranking officials came forward to claim responsibility for past crimes. Rather, it was the actions of the lower and middle management of the apartheid regime and liberation movement that were subjected to most public scrutiny. A weak emphasis on the role of private companies and parastatal bodies, too, meant that crimes involving such actors were not adequately addressed.

For further reading, please refer to:

Traggy Maepa (ed.), Beyond Retribution: Prospects for Restorative Justice in South Africa, Institute for Security Studies, Monograph No 111, February 2005.

Bulelani Ngcuka, Director of Public Prosecutions of South Africa, Amnesties and Immunities as Necessary Tools in Combating Corruption, speech given at the International Society for the Reform of Criminal Law Conference, Canberra 26-30 August 2001.

Hennie van Vuuren, New Anti-Corruption Governments - The Challenge of Delivery, South Africa Case Study, paper commissioned for the Kenya Meeting on New Governments, co-organised by the Government of Kenya, TI-Kenya and Transparency International, held in Nairobi, Kenya, October 2004 (Transparency International: 2004)

Africa - Uganda Amnesty Act 2000 and Amnesty Commission
For nearly two decades the Lord's Resistance Army (LRA) has waged a war against the people of Northern Uganda. The Ugandan Government's response has been to pursue both military action and mediation to bring peace to the region. One initiative under the latter strategy is the Amnesty Act 2000 which applies to any Ugandan who has engaged in war or armed rebellion against the government of the Republic of Uganda by direct participation in combat but also, as described in s. 3(1)(c) and (d), "(c) committing any other crime in furtherance of the war or armed rebellion; or (d) assisting or aiding the conduct or prosecution of the war or armed rebellion." This is a broad definition which may be applied to all types of activity relating to the conflict and could embrace corruption and financial crime although this has not been the focus of this amnesty.

To benefit from the amnesty, combatants may report to any of a number of local authorities including Army or Police Units, a Chief, a member of the Executive Committee of a local government unit, a magistrate or a religious leader within the locality (s. 4(1)). On reporting to such an authority the combatant becomes a "reporter" and their file is referred to the Amnesty Commission, which may interview the reporter to verify information. The Amnesty Commission does not have investigative capacity to cross-check information. The Reporter is then issued with a Certificate of Amnesty.

Public opinion in Uganda has broadly supported the amnesty process. A survey based on interviews of members of the public (found in the "Forgotten Voices" document below) found that 65% of respondents support the amnesty process for LRA members. However only 4% said that amnesties should be granted unconditionally, and the vast majority said that some form of acknowledgement and/or retribution should be required of all those granted amnesty.

Further Reading: Forgotten Voices: A Population-Based Survey on Attitudes about Peace and Justice in Northern Uganda, (July 2005) International Center for Transitional Justice and the Human Rights Center, University of California, Berkeley.

Other Examples in Africa
For similar Truth and Reconciliation Commission processes, though not corruption-specific, see the Ghana National Reconciliation Commission which began work in 2002, the Sierra Leone Truth and Reconciliation Commission which worked in parallel to the Special Court for Sierra Leone as well as the Truth and Reconciliation Commissions in the Democratic Republic of the Congo and Liberia. Details of all of which may be found on the website of the International Center for Transitional Justice.

[top]

Part III: Further reading

Jeremy Pope, TI Source Book 2000 - Confronting Corruption: The Elements of a National Integrity System, Transparency International, 2000, (Pages 281-285).

Transitional Justice: Are Amnesties the Answer? Workshop Summary, 10th International Anti-Corruption Conference, Prague, October 2001.

UNODC Anti-Corruption Toolkit (Tool #31, Page 435).

[top]