THE 2ND ALL KENYAN MOOT COURT COMPETITION
14TH TO 15TH FEB 2014
IN
THE SUPREME COURT OF PADMA
BETWEEN
RIGHTS SHIELD (APPLICANT)
AND
THE PADMESE GOVERNMENT (RESPONDENT)
RESEARCH PAPER
RESEARCH TOPIC: GRAND CORRUPTION AS A CRIME AGAINST HUMANITY
TEAM CODE: 107
PRESENTED BY: KOMER V. ADONGO
1
ABSRACT:
This paper is a combination of research work done on the topic of corruption and its
relationship with human rights. It will attempt to look at the term “corruption” keenly and
“human rights” in all its dimensions and seek to form a link between the two showing how
the two intertwine; i.e. areas of human rights which are affected by corruption; and finally
give a conclusion full with recommendations on how the two can be handled in the
society.
CORRUPTION
Power tends to corrupt, and absolute power corrupts absolutely. There is no worse
hearsay than that the office sanctifies the holder of it.1
-Lord Acton (1834-1902)
Corruption is the most common problem shared by the world. Despite all of its popularity
and commonness across the globe, the term corruption still remains one of the most
difficult terms to define as its definition varies with every culture, environment and beliefs
in the world. It thus provides an impediment to the administration of public affairs. 2 It
‘undermines good government, greatly disrupts public policy, leads to misallocation of
resources, harms the private sector and private sector development. 3 Corruption mostly
affects the most vulnerable sections of the society like the women, children, minorities,
persons with disabilities, those with HIV/AIDS, refugees, prisoners and the poor. It goes
against the ideals of equality and justice. It diminishes human dignity and thereby
prevents the realization of human rights and fundamental freedoms.
2. HUMAN RIGHTS
1
Microsoft ® Encarta ® (2009), © 1993-2008 Microsoft corporation.
Criminal law convention on corruption, explanatory report, available at,
<http://conventions.coe.int/Treaty/en/Reports/Html/173.htm>
3
See Transparency International, The Fight Against Corruption: Is the Tide Now Turning?
(Berlin: TI, 1999)
2
2
Internet Encyclopedia of Philosophy defines human rights as basic moral guarantees that
people in all countries and cultures allegedly have simplyby virtue of them being human
beings.
It has been generally accepted that the basis of human rights is founded on the principle
of human dignity and equality. Human rights are inalienable no one has the right to
deprive another person of any of their human rights. They are indivisible, interdependent
and interrelated that they are equal in importance and equally essential for the respect
and dignity of each person.
Human rights can be categorized in different ways: negative, active and positive rights.
Negative rights are those not subject to interference by others as articulated by John
Locke. Jean-Jacques Rousseau brought about the idea of active rights which imply the
right to participate in the political process. Positive rights which according to the
philosophy of Karl Marx, include the economic, social and cultural rights which impose a
duty to act on the person who is supposed to act. Karel Vasak developed the notion of
generation of rights in which he came up with three generations of rights. They include:

First generation rights- which includes civil and political rights;

Second generation rights- containing economic, social and cultural rights; and

Third generation rights- including the right to development, peace and environment
3. CORRUPTION AND HUMAN RIGHTS
Corruption causes serious economic, social and political problems to a state; which directly
results in violation of fundamental rights and freedoms. States are the duty bearers for
human rights. They have obligations “to respect”, “to protect” and “to fulfil” humans
rights. The obligation to respect bars the State from acting in a way that may deprive
3
individuals of the enjoyment of their rights; the obligation to protect imposes on the state
the duty to prevent irreparable harm from being inflicted upon members of society; and
the obligation to fulfil requires the State to take measures to ensure that people under its
jurisdiction can enjoy human rights that they cannot secure by their own efforts.
3.1 Corruption and the principles of equality and non-discrimination
The UN Human Rights Committee defines discrimination exhaustively. It can therefore be
said from the definition of discrimination that corruption violates the principle of equality
and non discrimination because the acts of corruption in themselves tend to exclude and
prefer some people against others. Corruption can also be said to be discriminatory
because it, with all intents and purposes, results in distinguishing, or excluding, restricting
or preferring, in ways that impede individuals from exercising one or more rights.
3.2 Corruption and the rights to a fair trial
The right to a fair trial is established in several human rights treaties as well as domestic
legislation (e.g. ICCPR, Article 14; ECHR, Articles 6 and 7; ACHR, Articles 8 and 9; and
ACHPR, Article 7). An example of corruption in the judicial system does not only apply to
judges but all officers of the judiciary including police officers, clerks and members of the
office of the registrar…. All these people can be offered bribes to delay justice by either
‘making a file disappear’, allocate a suit to a more lenient or sympathetic judge etc
3.3 Corruption and rights of political participation
All citizens are entitled to engage in decision-making processes that affect them. Right to
participation entails freedom to vote and stand for elections, the right to equal access to
public services, and the freedoms of association and assembly. These rights are enshrined
4
in several human rights treaties (such as ICCPR, Article 25; CEDAW, Article 7; ECHR,
Article 3 of the First Protocol; ACHR, Article 23; and ACHPR, Article 13).
The state therefore has the duty to ensure that Persons eligible to vote do so freely
without undue influence or coercion of any kind that may distort or inhibit the free
expression of their will. This category also holds other rights and freedoms like the right to
equal access to public services and the right to freedom of association.
The issue of voter-bribery in attempting to persuade or deter people from voting for a
particular candidate should therefore be done away with. Participation in bribery to obtain
public service employment is also another impediment to the promotion of human rights
as everyone has a right to access public services.
3.4 Corruption and economic, Social and cultural rights
States have accepted, under human rights law, the duty to provide or regulate public
services in relation to health, housing, water and education. These services generate large
public contracts which not only create opportunities for corruption but have a
disproportionate impact on vulnerable and disadvantaged groups, in particular women.
Widespread corruption in health or educational services deters the poor from seeking
healthcare and education, and depresses living standards and opportunities for poorer
people in particular.
CONCLUSION AND RECOMMENDATIONS:
These are just but a few of the scenarios where corruption in the society leads to
derogation of human rights. It is now clear that corruption is a very big area of concern
and thus, in order to make headway in the continent under the sector of human rights, it
ought to be eradicated.
5
Recommendations
The only way a society can be rid of corruption is by ensuring and evaluating the
governance in power. Good governance can be achieved in four different perspectives.
They include:

Reliability and Predictability of the leaders. They must be strict adheres to the
principle of Rule of Law, constitutionalism and procedures of human rights.

Government bodies should be pushed towards being Open and Transparent. This is
the 2nd principle that would curb corruption in government institutions. Therefore,
the government must inform the public about its activities in a timely manner, in
detail, accurately and to the full. Everyone has the right to obtain information from
public authorities. What is not a secret should be available to the public.

Setting up of clear procedures form a necessary part of democracy. In order to
show their sovereignty, the citizens of a particular state have to be accounted to by
political officials on the management of public resources.

All leaders must also be able to demonstrate efficiency and effectiveness in all their
activities by accomplishing a lot with low as low costs as possible.

Finally, all citizens and associations should also share in the responsibility of
promoting and safeguarding human rights. And the same should go for isuues of
corruption.
Corruption and human rights are interconnected. The only difference is that we fight
against corruption and for human rights. But this is a same struggle. In order to deal with
one, we have to look for answers in the dimensions of the other one.
6