Dirty Money, Broken Rights: The Global Repatriation Scandal -By Fransiscus Nanga Roka

The political theatre of preventing the stashing of stolen assets is a familiar feature of the world’s anti corruption architecture. What it has not learned is to give that wealth back to the same people who have been dispossessed of hospitals, schools, housing, clean water and social protection.

That failure is not a matter of administrative ineptitude. It is an international human rights outrage.

The UN Human Rights Office ramped up calls for greater international collaboration in the return of assets of illicit origin – projected to be up to US$ 100 billion per year. This is a major complication, but the problem also at the core of the UN Convention against Corruption is simple: corrupt officials, corporate intermediaries and financial enablers siphon off public wealth; banks and shell companies obscure it between jurisdictions; foreign authorities freeze or litigate over it; vulnerable citizens wait years or even decades for rehabilitation.

Kleptocrats exploit corporate secrecy. While banks, lawyers, accountants and asset managers earn fees from transactions, the process of litigation over many years. Governments of financial centers score enforcement successes when freezing accounts despite the fact that without return, a frozen account just switches custodians of ill-gotten wealth.

School less children, medicine less patients, social-secure workers and sanitation-less communities. Corruption victims are not some abstract state budgets. They are people whose economic, social and cultural rights have been turned into resources deposited offshore.

It typically originates in developing, conflict-affected or institutionally fragile nations, but transforms into international flows that move to elite financial hubs, luxury real estate markets, trusts and shell companies. Such geography reveals the hypocrisy of rich states who endeavor to lecture poor countries on governance while their own financial systems warehouse the rewards of bad governments (and everyone knows it).

Confiscation laws that have yet to reconcile conflicting requests, evidence impossible to obtain, bank secrecy that shields criminals from exposure, competing claims of ownership, exorbitant costs of litigation and high standards of proof. The requested states do correctly invoke due process, but too much due process devolves into infinite process. Governments also do not trust the recipient institutions, since they expect that stolen assets will be stolen again. It is good that concern but indefinite retention is not protection. They are just dispossession by other means.

To begin with, deadlines for responses to mutual legal-assistance and asset-return requests should be made enforceable through state legislation. Only then can a delay be justified before an independent authority and not normalized via the lack of bureaucratic capacity.

Second, they must be verified, interoperable and accessible to investigators and reporters as well as civil society. The victims of corruption should not be at a greater disadvantage than any anonymous company.

Third, status before the law and during recovery from investigation and seizure to repatriation and dispossession needs to be granted. Return agreements negotiated solely between governments reaffirm the same secrecy that facilitated the theft.

Fourth, public transparency, third-party audits, procurement safeguards and real-time expenditures should be required for every repatriation agreement. Money returned must be clearly tied to reparations and health care, education, housing, sanitation and sustainable development.

Fifth, the Implementation Review Mechanism (IRM) established by UNCAC must release data on a country basis that track comparable assets: identified, frozen, confiscated, and returned including information on any subsequent delays and how it was ultimately spent. Voluntary success stories do not substitute measurable accountability.

Protection from retaliation is mandatory for whistleblowers, journalists, human rights institutions and civil society monitors. Focussing on the ability to keep control of something you have regained from being recaptured again, when we talk about fragile and post-conflict states, systems run independent trust mechanisms might be needed there.

The principles have been established by Transparency International, the UNCAC Coalition, OHCHR and transitional-justice advocates. What are still lacking are the political guts.

Corruption steals public wealth once. Again, there is a theft from the international system when it secures or buffers or holds on to the spoils. The world at large is not truly fighting corruption until stolen assets are returned in a full and transparent way to their rightful owners.

It is performance.

Fransiscus Nanga Roka

Faculty of Law Univertsity 17 August 1945 Surabaya and Managing Partner Law Firm Victorious Indonesia