Thursday, December 26, 2024

A single anti-corruption agency is a high-risk option for South Africa

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Corruption and state control over the past decade in South Africa were made possible by an attack on the independence and capacity of its criminal justice agencies. As the country struggles to bring perpetrators to justice and prevent further harm, the question is: are South Africa’s institutions up to the task?

Some activists propose creating a single anti-corruption agency for South Africa, with full investigative and prosecutorial powers and constitutionally protected independence. A single powerful agency may seem like a good idea, but anti-corruption agencies have no track record of success in Africa.

New research by the Institute for Security Studies (ISS) on how to effectively combat corruption in South Africa, to be launched on 28 August, shows that anti-corruption reforms in developing countries often fail or backfire and can trigger political instability. Successful agencies are often attacked or dismantled by powerful elites who do not benefit from the rule of law. The ISS study found no evidence globally that a single-agency model is better than a multi-agency approach.

Countries that have tried and failed to establish anti-corruption commissions include Ghana, Malawi, Tanzania and Uganda. These bodies have failed to live up to expectations, leading to budget cuts and increasingly poor results.

In systems theory, corruption is seen as a wicked problem, something insoluble and resistant to resolution because of its complexity. Corruption is a complicated issue and those who commit it fight attempts to solve it.

The perpetrators and beneficiaries of these crimes are often powerful and exert influence over politicians, police, prosecutors and others to inhibit the work of law enforcement institutions. This weakens any agency that threatens them and they may resort to violence to protect their interests.

Accountability Now advocates for an independent, specialised integrity commission for South Africa, enshrined in the Constitution as a Chapter 9 institution, with adequate resources, trained staff and leadership that cannot be easily removed. These are the so-called STIRS criteria (specialised, trained, independent, resourced and stable in tenure) that emerged from a 2011 Constitutional Court ruling.

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The ruling, known as Glenister II after businessman Hugh Glenister, found that the South African government was obliged to create an independent agency to combat corruption. Glenister sued to challenge the 2009 disbandment of the highly effective crime-fighting Special Operations Directorate (Scorpions). The Scorpions' demise followed a politically motivated resolution at the 2007 national conference of the ruling African National Congress.

The Scorpions, created in 2001 with broad powers to investigate and prosecute priority crimes, including corruption, were a specialised unit of the National Prosecuting Authority. The unit was replaced by the Priority Crime Investigation Directorate (the “Hawks”), based within the South African Police Service.

In the Glenister II case, the Constitutional Court held that the legislation that gave rise to the Hawks did not meet the STIRS criteria, including independence. However, the case did not clarify all the requirements for effective anti-corruption law enforcement in South Africa.

There are different views on the exact powers and functions a new agency should have. In 2020, the government’s National Anti-Corruption Strategy said it should be a permanent, statutory or constitutionally entrenched state body, but did not prescribe whether the agency should have full investigative and prosecutorial powers.

A single, robust anti-corruption entity with full powers to investigate and prosecute, as provided for in the Constitution, is an admirable long-term goal, but South Africa must proceed with caution in undertaking the rebuilding of its anti-corruption architecture.

In line with international good practice, the task requires a political economy risk analysis and research to ensure that the solution is tailored to prevailing conditions. There is insufficient research on the particular types and causes of corruption in South Africa, and it would be unwise to proceed without first doing this work.

Anti-corruption reforms that are not based on an analysis of local conditions could destabilise the fragile compacts on which South Africa’s fledgling Government of National Unity is based, creating conditions for a less democratic government to take over. This happened in Brazil, where prosecutors brought previously untouchable politicians and businessmen to justice. The resulting political instability created an opportunity for a new president, Jair Bolsonaro, to reverse anti-corruption reforms in 2019.

The ISS investigation has not found anywhere in the world a single powerful anti-corruption agency with full investigative and prosecutorial powers enshrined in the Constitution. Not even Malaysia’s Anti-Corruption Commission is constitutionally entrenched with full prosecutorial powers. The commission is arguably the most powerful anti-corruption body in the world. It jailed a former prime minister and recovered billions of dollars embezzled in the infamous 1MDB case.

Kenya’s Ethics and Anti-Corruption Commission – regarded by international experts as one of the most effective such agencies in Africa – was established in terms of the Constitution and has prevention, investigation and asset recovery mandates, but no prosecutorial powers. It has succeeded in recovering significant amounts of money from corruption, even in high-profile cases, using innovative methods such as unexplained enrichment orders.

International experts say that anti-corruption institutions based on local knowledge are the most stable and resistant to political interference. For example, in Nigeria, a project working with small businesses to reduce corruption in the energy sector encourages business owners to respect the law and to apply peer pressure to ensure that their neighbors do the same.

In South Africa, corruption is systemic, meaning that it is maintained in organisations by unwritten rules that are more powerful than official regulations. These unwritten rules are enforced by rewards (such as promotions) and punishments (such as disciplinary hearings). The predominant behaviour that facilitates corruption in an organisation, i.e. harassment, is not necessarily a crime. South Africa cannot solve systemic corruption through justice.

Research shows that only a small percentage of people working in organisations are prone to corruption. A few champion integrity, while most follow the prevailing norms. Any new body would need a mandate to take preventive measures, such as helping leaders set an “ethical tone from the top”, protecting and rewarding whistleblowers, using data to predict patterns of corruption and creating cultures of integrity. There is also a need to change patterns of workplace behaviour that facilitate corruption.

In addition to these lower-risk and lower-cost reforms, the ISS study also proposes methods for strengthening existing anti-corruption institutions and creating incentives for cooperation among them. It recommends incremental innovations targeting one sector or agency at a time and partnering with the private sector on collective action projects.

A good example of a collective action project is in Nigeria, where the Maritime Anti-Corruption Network reduced corruption in the port of Lagos by 96%. With the support of high-level politicians, representatives from the business sector, government and civil society collaborated to apply real-time consequences to bribery and create a culture of integrity in the port authority.

South Africa's response to corruption will determine its future. The country should take note of international good practices, learn from examples of success and failure in Africa, and then forge its own path based on local conditions.

Colette Ashton, Research Consultant at the Institute for Security Studies (ISS) in Pretoria

For more information, register to attend the ISS webinar and launch on 28 August online or in person in Johannesburg.

(This article was first published by ISS Today, a Newslodgedistribution partner. We have their permission to republish it.)

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