David v Goliath : the prosecution of multinational construction/consulting corporations for corruption by the tiny Kingdom of Lesotho
| Author | M.A. Owori |
| Pages | 37-86 |
| Date | 01 January 2012 |
| DOI | 10.10520/EJC192858 |
| Record Number | lesotho_v19_n2_a2 |
| Published date | 01 January 2012 |
DAVID V GOLIATH: THE PROSECUTION
OF MULTINATIONAL CONSTRUCTION/
CONSULTING CORPORATIONS FOR
CORRUPTION BY THE TINY KINGDOM
OF LESOTHO
M.A.
Oworr
Abstract
This
paper
seeks
to
chronicle
the
legal
battle
that
was
waged
between
the
tiny,
impoverished
Kingdom
of
Lesotho
and
the
might
of
the
multinational
corporations
of
the
dam
building
industn;.
VVhen
the
Lesotho
Highlands
Water
Development
Project
was
initiated it
was
arguably
one
of
the
largest
dam
building
projects
in
the
world
intended,
as
a catalyst
for
economic
development,
to
uplift
the
welfare
of
the
people
of
Lesotho.
Its
call
for
tender
bids
to
more
than
500 construction
and consulting
contracts
naturally attracted
fierce
competition
from
the
'who
is
who'
of
the
dam
construction and consulting
industry of
the
developed
world.
Soon,
however,
the
lavish
lifestyle
of
the
Chief Executive of
the
Project
raised
suspicion
of
financial impropriety
which
in
turn
led
to
the
investigation
and
indictment
of
the
corporations
when
it
transpired
that
they
were
engaged
in
massive
briben1
of
the
chief executive
to
influence
the
award
of
tenders
.
The
paper
discusses
the
process
of
the
investigation,
prosecution,
appeals
and
finally,
the
disbarment
proceedings
successfully
brought
against
the
corporations
and
their
agents.
The
paper
examines
the
difficulties encountered
in
•
LLB
(Mak) Dip
LP
(LDC) LLM (Dar) Senior Lecturer, Faculty of Law, National
University of Lesotho.
38
David V Goliath: The Prosecution
the
process
and
sets
out
lessons
gained
from
the
experience
.
The
paper
concludes
that
if
these
lessons
are
taken
on
board
the
law
may
be
utilized
as
a
vehicle
for
renegotiating
and
addressing
the
North-South
imbalance
.
Introduction
There is a
strand
of radical legal theory
which
maintains
that
the
law
is largely
an
instrument
for
maintaining
the
dominant
interests
obtaining
in
a
given
society
and
that,
by
and
large, the
very
structure
of the legal
system
does serve these
dominant
interests. This theory
would
further
contend
that,
although
the legal structure ideologically
expresses itself
in
terms of the equality of everyone before the law,
yet
that
reality is
nowhere
to be
found
on
the
ground
where
this
structure, representing these
dominant
interests, as
it
does, necessarily
masks
the concrete inequality obtaining
in
that
society. As the
writer
Anatole France said, '[t]he
law
in
its majestic impartiality forbids rich
and
poor
alike to sleep
under
bridges, to
beg
in
the streets
and
steal
bread'.
1
It
may
well
be
that
the
law
does serve the
dominant
interests
in
a
given
society
and
that
in
the global context the
structure
of the legal
system
would
be
geared
towards
maintaining
and
serving
the
interests
of
multinational corporations of the
developed
world
of
the
North.
And
it
may
well
be
that
at
the global level
the
law
ideologically
masks
the reality of inequality
between
multinational
corporation's
interests
and
that
of other actors
on
the
ground,
particularly those
in
the
developing
world
of the South. Certainly,
in
a liberal democracy
the legal
system
signifies
in
terms of the equality of every one before
the
law
and
not
only
in
the interests of the
dominant
members
of
that
society.
And
therein lies the ideological
strength
of the legal system.
The
law
is
not
just a set of
normative
rules. It is
not
simply a
naked
1 France, A ., The Red Lily, 1894 quoted in Hunt, A., 'Law, State and
Class
Struggle',
in
(1976) vol.
20
no.6 Marxism Today,
178at184.
LLJ
Vol.
19
No.
2 39
instrument
of the
ruling
class. That may, perhaps, be
true
when
viewed
only
in
its
most
overt coercive aspect.
In
its ideological aspect,
however, the
law
is also composed of values such as impartiality,
universality
and
equality of everyone before the
law
which
instill
consensus
amongst
all the actors
in
society,
both
dominant
and
subordinate, rulers
and
the
ruled
alike.
This is precisely
why
the legal system does
not
only
embody
the
interests of the
dominant
forces
in
society or the interests of the
individual
multinational corporation.
In
order
to compel consensus
the
law
must
demonstrate its fidelity to its
stated
values;
it
must
manifest a degree of even-handedness sufficient to compel social
conformity;
it
must
validate itself ethically
and
morally
in
the eyes of
every actor
in
society
and
not
just the
dominant
interests of the ruling
class
or
multinational corporations; indeed,
it
must
sacrifice the
interest of a single multinational corporation which steps
out
of line if
it is to legitimize the system as whole.2
It
is
in
this latter sense
that
the
law
provides a platform
upon
which
even
small actors
in
society can
challenge the
dominant
ones, a platform
upon
which
these small
actors
can
legitimately
demand
that
the big actors obey the rules
of
the game,
that
the
law
must
apply
equally to every one
big
and
small
alike. It is precisely this platform
upon
which the tiny
Kingdom
of
Lesotho
was
able to take
on
the
might
of the multinational
construction/
consulting corporations (hereinafter,
'MN
Cs')
engaged
in
the construction of the Lesotho
Highlands
Water Project
(hereinafter, 'LHWP')
under
the
management
of the Lesotho
Highlands
Development Authority (hereinafter, 'LHDA') supervised
by
the Lesotho
Highlands
Water Commission (hereinafter, 'LHWC').
2
Sumner,
C., Reading Ideologies, London, Academic Press, 1979 pages 265-276. See
also Owori, M.A.,
'The
Hegemonic Function of Ideology
and
Law
in
a Post Colonial
State,'
an
unpublished
LLM thesis submitted to the University of Dar-es-Salaam,
1982
at
pages 15-51.
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