The Professional African Investigator’s moral and Ethical quandary.

By Kunda Kalaba.

How ethical are African Investigators both the private sector as well as the Public institutions? Let us do some soul searching and introspection as we consider some of the practical challenges Investigators may face or have faced in real life as illustrated in the paragraphs above: How will you as someone assigned to deal with such scenarios act under the circumstances?

• You have been assigned to investigate a very Senior Politically Exposed Person (PEP) in an African Country/State. According to the Association of Certified Anti-Money Laundering Specialist (ACAMS) training materials, PEP is a natural person who is or has held an important, influential, prominent and/or senior public or political position(s) with substantial authority over policy, allocation or use of governmental resources e.g. Head of State, Prime Minister, Judges, Senior Military personnel, Member of Parliament etc. PEPs include immediate family members and known close associates of such a person: The most Senior and Highest PEP in the African appoints many PEPS in an African setting, whether ratified, endorsed or rubber stamped by Parliament is another story.

This Senior PEP has close allegiance to Senior & HIGHEST PEP in the Land. The PEP you have been assigned to investigate who is alleged to be a corrupt OFFICIAL is at Cabinet Minister Level. You can’t find the bribe allegedly taken. Is it OK to ask your former classmate at Makerere University and girlfriend at the Bank next door to have a look to see if she can find any “round amount” deposits in the PEPs account?
• You are an AML/ KYC/CDD/sanctions advisor and Money Laundering Reporting Officer for an International Financial Institution like a Bank listed on several Markets in USA, Europe and Asia. You come across several suspicious transactions and activities for the first family, their associates and other very Senior PEPS who are actually sanctioned by OFAC and HMT, UN and EU.

Among those customers are infact the Central Bank Governor and Minister of Finance who are also responsible for regulating and issuance of Banking licences and annual renewals for your Banking license. The Country AML law says you must raise and file a Suspicious Activity Report (SAR) and file it with Regulators or Financial Intelligence Unit (FIU). At the same time the supreme law of the land the constitution says the President enjoys immunity from criminal prosecution and therefore can’t be investigated whilst in the Office.

The Head of FIU where you are supposed to report is infact a relative to the powers that be and was actually appointed by the people you want to file a report on! What do you do before you damage your MD/CEO and the Company’s good reputation and image in the eyes of the regulators?

• You are investigating a Fraudster. Your line manager thinks you are not quick in your turn around time and since it is year end, your BONUS may be affected or reduced by your inertia to conclude this case as you are also struggling to trace the fraudster. Is it OK to use a contact at Telkom/MTN/Vodacom/Airtel mobile Company to establish the suspect’s address? What do you do since you work in a private sector and you are not allowed to obtain warrants of search from the Courts of Law unless you formally report the case to the Law Enforcement Agency which the Board of Directors and Senior Management are not of the idea because of negative publicity and therefore bad for the business, corporate image and Company?

• You are interviewing a murder suspect number 2, he is exercising his Constitutional right to remain silent and he does not want to confess, but you know he did it. Is it OK to call the bluff by telling him that Suspect number 1 has confessed and provided incriminating evidence about him? Remember the limited resources for the African Investigator, no CCTV cameras, enough transport, surveillance equipment and record keeping, etc.

• You are conducting a Fraud Risk Assessment in a Publically Listed Company (PLC). Management gives you insight to some sensitive information and it is clear that they may be going insolvent anytime soon. Your father –in-law holds 600 000 shares in this company. Is it OK for you to advise your wife to tell her father to sell his shares due to market conditions before he makes a loss and loose through inheritance since everything has been bequeathed to your wife as the only daughter?

• Your MD/CEO had given you an assignment to investigate the net worth assets of one of the Executive management Committee members. A few days later the suspect approaches you and asks whether you are investigating her. Is it OK to tell her that you are not doing an investigation, but just doing a procurement review or do you go back and establish whether the MD/CEO had breached levels of confidentiality and shared with the suspect the investigations instituted but instigated by him against her?

• Your uncoordinated and laziest friend who is also facing several disciplinary cases asks you if you would be her referee as she is applying for a new well paying big job. The recruitment company calls you. What do you tell them?

• You ordered a brand new surveillance and recording gadget from an internet-vendor based in the USA. The package contains 2 gadgets, but you only ordered one and you are based in Southern Africa. What do you do?

• The colleague sitting at the desk next to you does not log-off from his e-mail before he leaves for lunch. You have been suspecting that he is having an affair with a married senior manager within the Company who has caused professional hell in your life before. What do you do?

• The boss calls you in and praises you for a very good investigations and compiling an excellent report. In the heart of your hearts, you know you did not compile this report. The report was actually written by your subordinate. What do you say to your boss and who takes the credit for the promotion and Bonus?

We can go on and on with such practical and real life ethical and moral temptations and dilemmas in our Professional careers. Be that as it may, is it ETHICALLY correct to bend the rules in the game against criminal suspects?

Ethics comes from the Greek word “ETHOS” which means “character”. Socrates posited that people will naturally do what is good if they know what is right. He further correlated knowledge with virtue and similarly equated virtue with happiness. Is it true that “the truly wise man will know what is right, do what is good, be content and therefore be happy?” That would be good for the ears of some of our fine Religions of the World, but that is another dimension for another day.

Last time I checked on Wikipanion, ETHICS were being referred to as moral philosophy, a branch of philosophy that involves systematising, defending and recommending concepts of right and wrong conduct.

According to Richard Paul and Linda Elder of the Foundation for Critical Thinking, they define ethics as a “set of concepts and principles that guide us in determining what behaviour helps or harms sentiment creatures”. The Cambridge Dictionary of Philosophy states that the word ethics is “commonly used interchangeably with “morality”,,, and sometimes it is used more narrowly to mean the moral principles of a particular tradition, group or individual”.

Whether you deal with Anti-Money Laundering (AML), Counter-Terrorism Financing(CTF), Anti-Bribery and Corruption (ABC), Financial Crime Risk (FCR), Drug Enforcement Commission/Agency (DEC/A), Financial Intelligence Centre/Unit (FIC/U), Fraud Risk Management and Investigations, public or Private Sector, Private Eye type of investigations and surveillances, Clandestine Operations and mercenary work, for the Professional and qualified African investigators, Ethics can be said to be a set of personal rules (above and beyond the laws or policies that govern our industry that ensure that we do what is right in all circumstances, with our family, friends, suspects, witnesses, staff, company, shareholders, suppliers, customers, and competitors).

Good ethics I believe and strongly so should enable all of our decisions to stand up to scrutiny over the long term, by a person of the highest integrity, common sense, the Constitution and humanity.
The African collection of a person’s beliefs and morals makes up a set of principles known as ethics. Ethics could be the sound judgments about what is right and wrong or, more specifically, a person’s moral obligations to society that determine a person’s actions.

In the African Political setting however, determining ethical rights and wrongs is complicated by the fact that moral standards and generally accepted social behavior change with time, modernization, global influence and they vary from one section of society to another, Country to Country, Province to Province, District to District, Town to Town, Constituency to Constituency, Tribe to Tribe, Clan to Clan and maybe from profession to profession etc.

In addition, different groups in the same society or a Country may have conflicting ideas of right and wrong. For a instance, a perceived dangerous criminal and robber ready to be burnt alive with a tyre ring on his neck by an instant mob justice suspected to be hard core criminal by investigators and prosecutors may be perceived by defense Lawyers and Law firms as a good client whose human rights is being infringed upon by his uncalled for, inhuman and unlawful incarceration by the state.

A common fallacy which may arise in discussing ethics is “If it’s legal, it’s ethical.” A common defense to charges of unethical behavior is to invoke the law. This legalistic approach to ethics mistakenly implies that actions that are not explicitly prohibited by the law are ethical. Very wrong dimension of looking at ethics.

The main error in this approach is that legal standards do not establish ethical principles. Although abiding by the law is a part of ethical behavior, laws themselves do not describe how an ethical person should behave. In an African setting, one can be dishonest, gay, unprincipled, untrustworthy, unfair, lesbian and uncaring without breaking the law depending on which Country you are referring to.

Moral philosophy deals with choices between what is good vs. evil and right vs. wrong. There are two basic approaches to this debate:
(a) “moral absolutism” requires morals and values to be universally accepted, and not even change over time
(b) “moral relativism” this behaviour is acceptable as long as your specific industry or society condones it, regardless of what other societies think.

Kindly allow me to insist that with African Professional Investigators and I’m using this term very broadly and loosely to encompass many specialised fields in various predicate and serious offences, “Integrity means doing the right thing, even if nobody is watching”.

Ethical dilemmas occur when
• a situation of conflict of interest arises. Refer to Wife and father in law scenario above.
• Alternatives and other options are available with different outcomes
• The correct decision is not clear in terms of:
• Moral principles,
• the potential prejudice to one/some,
• the potential benefit to the decision-maker (Bonus and Promotion),
• whether the truth will eventually become known (You or subordinate wrote a report).

As African Professional investigators we should at all times:
• Consider the facts and the evidence as being more important than suspicions or perceptions and other prejudices we may hold.
• Conduct all investigations with integrity and professionalism;
• be honest in all professional interactions;
• and strive to report those engaging Money Laundering, Bribery, Corruption, Plunder, embezzlement, skimming, phishing, theft, misappropriation, fraud or deception to appropriate authorities.

One may ask how can an ethical behaviour by the Anti-Corruption Commission/Bureau Investigator hurt or destroy a bribery case. Others have argued that “It can’t”. Officers may use all available means, including excessive force and unethical behaviour, to resolve an investigation.

While in an interview room for example, if you are uncooperative like what one Minister of Justice did in a Southern African Country where he went with Party cadres and demanded that the Anti-Corruption Commissioner interview him in public, in full view of the National Television and his Party cadres/supporters, professional investigators are put in a very awkward moral and ethical dilemmas. That is for another day.

In Africa, if the suspect is a lesser mortal, Investigators may utilize things such as unconventional “Guantanamo bay” type of interrogation depending on the severity of the case such as those leading to economic sabotage and treasonable offences. Tactics such as hanging from the rope or swing upside down or some “shock therapy” and talking about doing things with your mother and/or sister to ensure that you talk.

If you ask for an attorney, investigators are only obligated to comply with that request if an officer is present in the room with his official uniform hat on.” Some African Investigators with limited resources and gadgets at their disposal are known to have used fear, stress, deception and their networks (illegally) and Religion, etc.

Coming to institutional and organizational arrangements, these values and ethics of an individual are reflected in their actions as employees. There are four factors that generally affect the ethical decisions of employees:
* The law and other government regulations
* Industry and organizational ethical codes
* Social pressures
* Tension between personal standards and organizational needs

One of the easiest ways to establish a strong moral tone for an organization is to hire morally sound employees. Too often, the hiring process is conducted in a slipshod manner. Organizations should conduct thorough background checks on all new employees, especially managers. In addition, it is important to conduct thorough interviews with applicants to ensure that they have adequate skills to perform the duties that will be required of them.

* Fraud prevention requires a system of rules, which, in their aggregate, minimize the likelihood of fraud occurring while maximizing the possibility of detecting any fraudulent activity that may transpire. The potential of being caught most often persuades likely perpetrators not to commit the fraud. Because of this principle, the existence of a thorough control system is essential to fraud prevention. It is cheaper to drain the swamps than fight the alligators and crocodiles.

No control environment will be effective unless there is consistent discipline for ethical violations. Consistent discipline requires a well-defined set of sanctions for violations, and strict adherence to the prescribed disciplinary measures. If one employee is punished for an act and another employee is not punished for a similar act, the moral force of the company’s ethics policy will be diminished.

Remember Laws were established from the outset of civilization as people will always “push the boundaries.” All Staff in an organization without exception therefore need to know what those boundaries are.

Those who have been long in this field when carrying out investigations or disciplinary process have heard sometimes from those being interviewed that “I didn’t know that was wrong – where does it say I cannot do that?”
It is imperative for every institution to set out in black and white exactly what is acceptable and not. Staff will be put on notice that certain behavior is unacceptable. The key is to prevent the staff that has been recruited from straying from the “straight and narrow” and go off the rails.

The aim of a Code of Ethics policy is to demonstrate to both employees and the outside world that the Organisation is taking the threat of AML, CTF, FCR, dishonesty, fraud, and theft seriously. By issuing a detailed policy, it clearly sets out what is considered to be dishonest and warns any potential wrongdoers that the consequences of being caught will be serious. The effect therefore will be to deter any potential wrongdoers thus resulting in reduced losses from any wrongdoing and reduced costs in respect of investigating any wrongdoing.

As a polite reminder to all those involved in investigations on the African Continent, it is professionally acceptable to respect the wishes of witnesses, colleagues, and professionals; and you should safeguard confidentiality and privacy of people, documents and companies.

The African Investigator is encouraged to continue to study, apply and advance scientific knowledge; to observe the precepts of accuracy and
prudence; and to make relevant information available to colleagues and the public when permitted by law.

We just as investigators must strive to always respect the law and legal
authority. We must not reveal any confidential information obtained during a professional assignment without proper authorisation.

Inevitably, when we are called upon by law, like during the trial by the courts of law, we must reveal all material matters discovered during the course of an investigation, which, if omitted, could cause a distortion of the facts and lead to a miscarriage of justice by Magistrates and Judges setting the guilty free on the basis of technicalities. We should also continually strive to increase the ethical content of services performed under our jurisdictions and direction.

Some of our relatively new comers to the calling may wish to know how to tell and know whether their actions are right? The following questions can be applied as a guideline of whether it is acceptable or not:

Does the conduct comply with legislation?
Does the conduct comply with the Professional and universally Code of Ethics?
What would the public think if this action is reported in the newspaper?
What would your superiors say about this action?
Does the result of this action feel right and fair?
Some guidance and constant reminders to all of us may not be a bad idea. Treat the suspect the way you would have liked to be treated, consider the perception of third parties (Courts of Law, Defence Counsel, Superiors, Press and Labour Laws, Workers Union and HR Policies). Always stay within the law

The ethical key for us is to keep emotions and feelings of anger and betrayal towards all suspects in balance. None in the field of investigations can afford to let personal fears and hatred of crime control the situations with such suspects. If allowed to become unprofessional or unethical, it opens a whole new set of problems in the cases worked and may in fact allow criminals to not be convicted of the crimes they commit. That can lead to even more crimes, being committed by the same offenders. Care must be taken to ensure the situation does not arise to free such suspects from the hands of justice.

The thankless noble calling and Professional African Investigators in all fields are being encouraged to continue to “Always be honest, tell the truth about everything, never exaggerate or misrepresent what you know or what you are doing during your investigations”

Kunda Kalaba (CAMS,CFE) is based in Zambia