By Colette Ashton
First published on Institute for Security Studies
Corruption and state capture over the past decade in South Africa were enabled by an attack on the independence and capacity of its criminal justice agencies. As the country struggles to bring the perpetrators to book and prevent further damage, the question is: are South African institutions up to the task?
Some campaigners propose a single anti-corruption agency for South Africa, with full investigative and prosecutorial powers and its independence protected by the Constitution. A powerful single agency may seem like a good idea, but anti-corruption bodies don’t have a track record of success in Africa.
New Institute for Security Studies (ISS) research on how to effectively tackle corruption in South Africa shows that anti-corruption reforms in developing countries frequently fail or backfire and may 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 outperforms a multi-agency approach.
Examples of countries that have tried without success to set up anti-corruption commissions include Ghana, Malawi, Tanzania, and Uganda. These bodies failed to meet high expectations, resulting in budget cuts and increasingly poor results.
Corruption is known in systems theory as a wicked problem – something intractable and resistant to resolution due to its complexity. Corruption is messy, and those who commit it fight back against attempts to resolve it.
Its perpetrators and beneficiaries are usually powerful, and exercise 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 use violence to protect their interests.
Accountability Now favours an independent specialised integrity commission for South Africa, entrenched in the Constitution as a Chapter 9 institution, with sufficient resources, trained staff and leadership who can’t easily be removed. These are the so-called STIRS criteria (specialised, trained, independent, resourced and secure in tenure) that emerged from a 2011 Constitutional Court judgment.
The judgement, known as Glenister II after businessman Hugh Glenister, held that South Africa’s government was obliged to set up an independent agency to act against corruption. Glenister brought a case to challenge the 2009 disbandment of the effective crime-fighting Directorate of Special Operations (Scorpions). The Scorpions’ demise followed a politically motivated resolution at the ruling African National Congress’s 2007 national conference.
Established in 2001 with broad powers to investigate and prosecute priority crimes, including corruption, the Scorpions was a specialised unit of the National Prosecuting Authority. The unit was replaced by the Directorate for Priority Crime Investigation (the ‘Hawks’), based in the South African Police Service.
In Glenister II, the Constitutional Court held that the legislation that founded the Hawks fell short of the STIRS criteria, including independence. But the case didn’t clarify all the requirements for effective anti-corruption enforcement in South Africa.
More research needed
There are different views about 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 didn’t prescribe whether the agency should have full investigative and prosecutorial powers.
A robust single anti-corruption entity with full powers to investigate and prosecute entrenched in the Constitution is an admirable long-term aim. But South Africa should proceed with caution as it sets out to rebuild its anti-corruption architecture.
In line with international good practice, the task requires a risk analysis of the political economy and research to ensure the solution suits prevailing conditions. There isn’t enough research into South Africa’s unique types and causes of corruption, and it would be reckless to proceed without first doing this work.
Anti-corruption reforms that aren’t informed by an analysis of local conditions could destabilise the fragile pacts on which South Africa’s fledgling Government of National Unity rests, creating conditions for a less democratic government to take control. This happened in Brazil, where prosecutors brought formerly untouchable politicians and businessmen to justice. The resulting political instability created an opportunity for a new president, Jair Bolsonaro, to roll back anti-corruption reforms in 2019.
ISS research hasn’t found a powerful single anti-corruption agency with full investigative and prosecutorial powers entrenched in the Constitution operating anywhere in the world. Not even the Malaysian Anti-Corruption Commission is constitutionally entrenched with full prosecutorial powers. The commission is arguably the world’s most powerful single anti-corruption body. It jailed a former prime minister and recovered billions of dollars embezzled in the notorious 1MDB case.
Kenya’s Ethics and Anti-Corruption Commission – reputed among international experts to be one of the more effective such agencies in Africa – is founded in terms of the Constitution with preventive, investigative and asset recovery mandates, but not prosecutorial powers. It has made substantial recoveries of the proceeds of corruption, including in high-profile cases, using innovative methods such as unexplained wealth orders.
International experts say anti-corruption institutions rooted in 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 incentivises business owners to uphold the law and use peer pressure to ensure their neighbours do too.
Systemic corruption
Corruption in South Africa is systemic, which means it is held in place in organisations by unwritten rules that are more powerful than official regulations. These unwritten rules are enforced with rewards (like promotion) and punishment (like disciplinary hearings). The most predominant behaviour facilitating corruption in an organisation, namely bullying, is not necessarily a crime. South Africa cannot prosecute its way out of systemic corruption.
Research shows that only a small percentage of people in organisations are prone to corruption. A few take a stand for integrity, while most follow the dominant norms. Any new agency would need a mandate for prevention measures such as helping leaders set an ethical ‘tone from the top’, protecting and rewarding whistleblowers, using data to predict patterns of corruption, and building cultures of integrity. Patterns of behaviour in workplaces that enable corruption also need to be changed.
Along with these lower-risk, lower-cost reforms, the ISS study also proposes methods for strengthening existing anti-corruption institutions and creating incentives for cooperation between them. It advises incremental innovations targeting one sector or body at a time and partnering with the private sector in collective action projects.
A good example of a collective action project comes from Nigeria, where the Maritime Anti-Corruption Network reduced corruption at the Lagos harbour by 96%. Supported by senior politicians, representatives from business, government and civil society collaborated to provide real-time consequences for bribery and build a culture of integrity in the port authority.
South Africa’s response to corruption will determine its future. It 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.
