ON THE last occasion the Constitutional Court was required to consider the efficacy of the anti-corruption machinery of state in SA, our chief justice, writing for the majority of the court, opened with the following words: “All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal. We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”
It is accordingly fitting that the Konrad Adenauer Foundation chose SA as the venue for the most recent of its series of conferences on corruption that form part of its Rule of Law in Sub-Saharan Africa programme, which it runs out of its offices in Nairobi. The delegates met in Cape Town earlier this month, within a year of the delivery of the judgment, to discuss the best practices available to combat corruption. The conference was co-hosted by Accountability Now.
The organisers were able to assemble a formidable array of speakers and participants, among them judges Richard Goldstone, Albie Sachs, Kate O’Regan, Ian Farlam and Dennis Davis, Prof Max du Plessis, Deputy Public Protector Kevin Malunga, Cape Police Ombudsman Vusi Pikoli, David Lewis of Corruption Watch and Alison Tilley of the Open Democracy Advice Centre, as well as guests from West and other African countries and Germany.
The retired anti-corruption ombudsman of Schleswig-Holstein, Wolfgang Pistol, opened the eyes of many to the possibilities of penetrating what he called “dark corruption”, while the notion of civil sanctions for corrupt practices was explored by Justice O’Regan to such good effect that her input elicited an amendment to the conference resolutions.
As the topics discussed by these two participants in the conference may be novel to many in SA, a synopsis of their input may be valuable to those who are interested in taking the fight to the corrupt.
Pistol is an interesting man. He retired as a merchant seaman to follow a career in the police, rising to the rank of chief constable. Upon retirement he still felt sufficiently idealistic to make a contribution to the fight against corruption in his home state.
The government there entered into an agreement with him in terms of which he was appointed anti-corruption ombud. No salary was payable and no enabling legislation was deemed necessary.
A simple agreement led to the formation of an independent office dedicated to educating the public about corrupt practices and enabling those with complaints of corruption to approach him anonymously to alert him to instances of corruption that required investigation.
The protection of whistle-blowers in this way and the skill of the ombudsman in assessing which complaints are realistically likely to lead to a conviction and which not, have had the effect of considerably reducing the levels of corruption.
Other states in Germany have followed the example set by Pistol. The notion of this type of office being set up in SA at local or provincial level has its attractions as it is not costly, fills an empty niche in the anti-corruption machinery of state and provides the opportunity for retired judicial officers, lawyers and police personnel to “pay back” for a short and nonrenewable term while enjoying their well-earned pensions.
Pistol also observed that the law enforcement anti-corruption machinery of state is more effective when the policing element of it is backed up by lawyers who specialise in the field, tax consultants, forensic accountants, engineers and other specialists capable of analysing procurement by the state on a “value received” basis.
The contribution to the conference by Justice O’Regan was certainly an eye-opener for many. She drew attention to the sanction system that is used by the World Bank in transactions in which it provides the loan finance internationally only to find that the “padding” of kick-backs or overpricing bedevil deals made.
The notion of keeping proper records of the transactions and their implementation and making the failure to do so punishable with severe penalties for not being able to show a proper paper trail of how the finance supplied is spent is novel to many.
Justice O’Regan suggested that this innovation by the World Bank be extended to public procurement at the level of national jurisdiction in relation to all public procurement in whatever sphere of government, including state-owned enterprises, they occur.
Governments should establish, strengthen, promote and constitutionally entrench anti-corruption entities.
• In the formulation of policy and laws, corruption should universally be regarded as an infringement of human rights.
• Existing anti-corruption entities should be assessed and reviewed for their structural and operational compliance with criteria such as independence, adequate funding and security of tenure for staff.
• Greater protection and incentivisation of whistle-blowers.
• The nurturing of anti-corruption entities, in the state and civil society, through public education and stimulation of the political will to regard corruption as immoral, unethical and a crime that violates human rights and undermines constitutionalism.
• A sanctions system, such as that developed by the World Bank, should be considered for implementation at the level of national jurisdiction in relation to all public procurement.
The private sector and civil society organisations should be encouraged to adopt and implement anti-corruption compliance programmes as contemplated by the Organisation for Economic Co-operation and Development.
• Governments should establish a framework for the open and comprehensive declaration of assets and interests by all political office bearers and public officials.
It is to be hoped that the resolutions will be widely disseminated throughout Africa and beyond; that governments, and their policy makers in the anti-corruption sphere, will take note of the deliberations of the conference and that there will shortly be a proliferation of anti-corruption ombudsman offices in sub-Saharan Africa.
It is also hoped that the adoption of a sanctions system like that developed by the World Bank will be implemented as soon as is humanly possible at national level. After all, the Constitutional Court has warned, as long ago as 2011, that corruption “threatens to fell at the knees all we hold dear”.