Three strikes against graft
The past year witnessed the crafting of three potential ground-breaking anti-corruption instruments, and an opportunity for the United Nations, the African Union and the South African Parliament to prove that they are serious about tackling graft. All three initiatives are important foundations upon which initiatives against corruption can be built.
The UN Convention against Corruption, launched amid much fiesta in Merida, Mexico, earlier this week, in the presence of a large South African government delegation, will for the first time provide a global benchmark for national anti-corruption laws.
It will also complement the AU Convention on Preventing and Combating Corruption Related Offences, a continental initiative, that was passed by the AU in Maputo in July this year. Both agreements are a statement of political will and they do signal a new willingness by regimes to start playing by the book when it comes to managing both public and private funds. This should not be taken for granted, as stark contradictions in the two countries that border the Zambezi have proven. Zambia prepares to prosecute former president Frederick Chiluba on charges of corruption in Lusaka this week — a bold move by international standards — while Zimbabwe’s President Robert Mugabe’s henchman detained anti-corruption activists and trade unionists in Harare a fortnight ago.
In some respects the AU convention is the more innovative of the two documents. It covers key mandatory provisions governing both the private funding of political parties (which is not regulated in South African law) and private-private corruption. The UN convention has chosen to place only an “optional” label on these clauses and so waters down these important provisions. This probably has as much to do with the lengthy negotiation process as it does with the role in the drafting process of the United States — a country that provides a fine example of the need to separate corporate interests from the upper echelons of public office. A select group of large US multinationals hold sway in the hallways of power and it is this sort of corporate piracy that could prove as destructive as political leaders such as Sani Abacha in Nigeria and Mobutu Sese-Seko in the former Zaire, who looted public funds.
Tucked away among the many important clauses on prevention, money-laundering, public sector corruption and witness protection is the UN convention’s one outstanding contribution: a process by which nation states can cooperate in recovering assets looted by corrupt leaders and a provision establishing the right of people who have suffered damage from corruption to initiate legal proceedings against responsible parties. The former is a red light for the current crop of leaders fingered for such practice in our region, such as Angola’s President Eduardo dos Santos. The latter provision could be made workable by communities such as Nigeria’s Ogoni people, who suffered under the heavy hand of the Abacha regime who are alleged to have acted in support of large multinationals such as Shell. In both instances it should be hoped that the Swiss and other bankers who have welcomed these profits would think twice about providing safe havens for the proceeds of state plunder.
In the shadow of these two negotiation processes the South African multiparty portfolio committee on justice and constitutional development has moved from the realm of the theoretical to designing a new anti-corruption law that should prove both innovative and groundbreaking in its approach to combating graft. The Prevention and Combating of Corrupt Activities Act is likely to become law on April 27 next year. The experience of the first 10 years of democratic rule has been that corruption is immensely costly and undermines attempts to promote development.
Recognising the pervasive nature of graft, the new Act tackles corruption in both the public and private sector and imposes stiff penalties, with a ceiling of life imprisonment. The elected drafters have also had the wisdom to codify specific offences, making it easier for prosecutors and the Bench to convict corrupt individuals. These offences range from corruption relating to sporting events (the Hansie clause) to those dealing with corruption by members of the Legislature (the Yengeni clause) and an array of offences dealing with public tenders and procurement procedures. In regard to the latter, provision is made for a Register of Tender Defaulters, accessible to the public, which should name and shame errant companies and individuals. It is this sort of grand corruption, combined with petty corruption in key government departments such as social services, which is a serious impediment to service delivery. According to the new Act public officials clearly living beyond their means will have to prove the source of their income. Individuals in positions of authority, such as corporate executives and public sector directors general, are also bound to report incidences of corruption — failure to do so can be rewarded with up to 10 years imprisonment.
For all three instruments implementation is now the key. While the UN convention provides a comprehensive set of standards and measures to promote international cooperation in preventing corruption, its most obvious weakness is one common to most such protocols and agreements that are thrashed out in the parlours of diplomatic institutions. It is the persistent failure of governments generally to “police” themselves in monitoring the implementation of their noble gestures of quickly signing conventions but being ever so slow in ensuring that effective action follows. A case in point would be, again, the UN Convention Against Transnational Organised Crime that only came into force this September, a full three years after it was concluded. Or the 1997 Organisation for Economic Cooperation and Development Convention, which prohibits companies from bribing foreign officials, but is still in the formative stages of implementation and is continuously being flouted.
The AU convention and the new South African law would seem to triple the obligation of implementation for the South African government though, so the more pressing issue would be one of capacity constraints. These need to be urgently identified, perhaps within the context of the National Anti-Corruption Forum, so that all sectors of our society, including business and civil society, take joint responsibility for monitoring the efficacy of anti-corruption measures. Corruption is, after all, not a problem of governments alone.
As a people, South Africans would prefer to be known for exercising a zero tolerance approach towards corruption in terms of both the letter and the spirit of the law. While we may not be short on political will to see us through, citizens must themselves unite in appropriating the anti-corruption dreams of our leaders, both local and abroad.
Hennie van Vuuren is a senior researcher at the Institute for Security Studies in Cape Town. Daryl Balia is chairperson of Transparency South Africa