Introduction

Southern Africa, like any other region of the world, is experiencing an unprecedented growth in organised crime. There are, however, limited efforts to combat organised crime at regional level but there is insufficient consensus on the matter. It is therefore essential that the discourse on organised crime be encouraged at all levels; that it be comprehensive and inclusive, capturing the complexity of the matter at national, regional and international level. There is also a need to identify what constitutes organised crime. Available literature indicates that much still needs to be done to define organised crime, thereby making it possible for a common understanding of the phenomenon to emerge in the region.

The impact and effects of organised crime in Southern Africa must be quantified and qualified in order for effective strategies and mechanisms for combating organised crime to evolve and be implemented. Effective legal and institutional frameworks that take into account the complexity of organised crime is an essential part of efforts to fight the scourge. Attempts to combat organised crime will be incomplete and futile if they are not founded on principles of human rights, democracy and good governance.

This paper seeks to elaborate on the nature and manifestations of organised crime in general, and in Southern Africa in particular. The link between organised crime, human rights, democracy and good governance will also be explored. Current efforts to combat organised crime will be highlighted.

The paper will also seek to establish the importance of legislation in combating organised crime. The term ‘organised crime’ will be defined and the effects thereof will be explored. It is these effects and how organised crime spreads from country to country, that give legislation its practical value.

Definition and nature of organised crime

Organised crime is a term that has proved to be difficult to define exhaustively. Some authors have suggested that it is both impossible and unnecessary to define the term fully.

When most people think of organised crime, their point of reference is what is seen in gangster movies, dominated usually by an Italian ‘Godfather’. In movies one sees the criminals in a ‘family’. For people to become part of the ‘family’, they must pass certain ‘tests’. This ‘family’ is therefore organised into a network of people primarily focused on obtaining profits illegally through committing serious crimes with great social, economic and societal consequences. This has been generally accepted as the definition of organised crime, which usually manifests itself and is carried out by the use of corruption.

It is widely agreed that corruption is the misuse of power, office and authority – be it in the public or private spheres – for private gain. Bribery, fraud, extortion, nepotism and favouritism are among the many forms that corruption takes. In Southern Africa, various legal instruments operationalise the term corruption in a manner that is consistent. In short, the facets of organised crime therefore include the following:

the criminal activities are ‘organised’ as distinct from ‘isolated’;


the organisation is self perpetuating;


the motive is financial gain and could be political;


the goals are particular business activities which stifle outside competition;


the top men are insulated from the criminal act; and


the activities promote fear and corruption.

Legislation

The New Collins Concise English Dictionary defines legislation as the act or process of making laws. Legislation can also be defined simply as the laws so made.

Legislation is the expression of the will of a people or, in a national context, the will of the sovereign. In a democracy, this becomes the will of the people expressed through those elected to make laws.
There are at least two dangers that law-makers frequently succumb to in coming up with laws. The first is making a law that pleases a noisy minority but which does not have the support of the majority. This is often the case in situations where the law may protect the powerful who have the means and ability to engage in organised crime.

The second danger is of law makers passing laws without adequate provision for their enforcement. As observed by Matsheza and Kunaka (2000),1 Southern African countries have adequate pieces of legislation in their national laws to deal with corruption; the problem is the enforcement of this legislation.

Zimbabwe, for example, has the Prevention of Corruption Act. President Mugabe is quoted as having said he suspects that some of his cabinet ministers are corrupt, but nothing has been done since this admission. This indicates that political will is an important facet of legislation.

For legislation to be of practical value, it is therefore important that the rule of law be adhered to in the strictest sense of the word. No one should be above the law.

If this is not the case, then there is no need to talk of legislation being of any practical value. Organisations engaged in organised crime tend to be very powerful and, as such, can easily manipulate law enforcement agencies. It is important to empower sufficiently these agencies so that they can enforce the laws.

Organised crime, human rights and sustainable human development

The impact and consequences of organised crime, including corruption, is fully appreciated if they are seen in the context of human rights, good governance, democracy and sustainable human development.

“Human rights and human development share a common vision and a common purpose ... to secure the freedom, well-being and dignity of all people everywhere.”2
Included in the freedoms are:

freedom from want to enjoy a decent standard of living;



freedom from fear of threats to personal security, from torture, arbitrary arrest and other violent acts;



freedom from injustice and violations of the rule of law; and



freedom for decent work without exploitation.3

Several national, regional and international human rights instruments have been put in place to protect and promote the enjoyment of these rights and to provide the legal and institutional frameworks to fight organised crime and corruption. Among these instruments are national constitutions that protect citizens’ human rights through bills of rights; the Universal Declaration of Human Rights; the United Nations (UN) Convention on Civil and Political Rights; the UN Convention on Economic, Social and Cultural Rights; and the African Charter on Human and People’s Rights.4

All these human rights instruments are intended to ensure that people enjoy the right to life, liberty, dignity and worth. There is a clear symbiotic relationship between sustainable human development, human rights, good governance and democracy. These issues are indivisible as human development cannot be sustained without good governance, the respect and enjoyment of human rights, adherence to principles of democratic governance and the upholding of the rule of law and the fair administration of justice.

It is important to note that the Southern African region is characterised by high levels of illiteracy, high unemployment and under-employment, as well as gender and racial inequalities, thus making it difficult to attain satisfactory levels of sustainable human development. Organised crime and corruption contribute significantly to negate efforts aimed at protecting human rights, adherence to a governance process anchored on ethical and professional conduct and standards and respect of the rule of law as well as fair administration of justice.

The consequences of organised crime are far reaching. These can be looked at from a social, economic and political perspective.

Social

The impact on society of drug trafficking is very destructive. Promoting drugs ultimately creates further crime, though the exact links are still debated. With time, drug users become addicted. This addiction has health implications for those involved and consequently places a burden on a country’s health care system to rehabilitate and to treat these people. Drug addicts may become unemployed, leading to a financial burden on society to look after them. As a result of this addiction, drug abusers turn to petty crime like theft and burglary in order to finance their habit. It can also lead to a cycle of crime, including prostitution. As organised crime generates high profits, younger members of society are encouraged to join in, in order to earn these ‘easy’ profits.

Economic

Economic crime is today a global and omnipresent phenomenon, even though countries may define the concept differently in their respective legislations. It is highly organised and has become more international than ever before. Not so long ago, criminal justice was exclusively a national issue. Nowadays, when an increasing number of countries openly admit to a growing volume of estimated losses due to economic crime, ‘one-rider’ policies no longer work. Nation states have become too vulnerable.

The revolutionary technological developments of recent years have inadvertently facilitated the emergence of organised criminal networks that move across boarders in order to maximise profits. Modern criminal organisations have accrued considerable financial power, enabling them to juggle human and capital resources. The criminal economy is a rationally organised activity capable of producing wealth and power in the same way as any other business and, more often than not, more quickly than legitimate businesses.

Transnational economic crimes are complex in nature especially as they are often combined with legal activities. This is what makes them difficult to trace and quantify. To date, no systematic method of accounting for these crimes exists at national, regional or international level.

Corruption is closely related to money laundering. This is because at some stage, proceeds of the former need to be cleared through the financial system to re-enter the mainstream economy and appear legitimate. The process of knowingly concealing the source of illegally obtained funds for subsequent legitimate use is called money laundering.

Action against money laundering is difficult. Perpetrators often mix ‘dirty’ money with proceeds from legitimate businesses. Commercial secrecy, banking confidentiality and off-shore legislation continue to place obstacles to investigations. If the money has been sent overseas, international co-operation to trace it is required. One laundering action was reported to have taken 45 seconds to complete and 18 months to investigate.

Money laundering is difficult to detect and this makes it difficult to measure, distorting economic data and complicating governments’ efforts to manage economic policy and stability.
In view of the illicit operations of organised crime, the businesses are not declared for tax purposes. The amount of revenue that a country loses from non-taxable profits is impossible to estimate.

Political

The main political problem created by organised crime is that because of the vast profits made, criminals have opportunities with which to by-pass the democratic process. Tymon Katlholo, Director of the Directorate on Corruption and Economic Crime in Botswana, aptly concluded:

“Corruption is … evil. It undermines democracy and the rule of law. It impedes developments and weakens social stability. It leads to inadequate social services, reduces productivity and encourages laziness. It leads to a sub-standard product especially when through bribery a construction or supply contract is awarded to a person not capable of the job. Hence there is a massive effect on the public purse.”5

The World Bank reiterates that sustainable economic development cannot occur without the rule of law. Accountable systems of governance are necessary to provide the building blocks for economic and human development. Without them, development will stall or be distorted.

The rule of law – the foundation of civilised society – is the first to crumble when corruption is tolerated. Growing lawlessness strains the state’s ability to provide security for citizens. An increase in crime may further erode the state and its institutions. Where the state lacks the capacity to enforce the law, organised crime can undermine and replace the authority of the state. Organised crime then becomes a national security problem.

Legislative linkages are also important in that there is a need to protect whistleblowers. These linkages must be uniform in the region. Given the intricate network of how organised crime is committed, it may be virtually impossible to detect without the assistance of ordinary citizens. These citizens will, however, need the protection of the law and to be protected from the criminals. This will help detect where crime is being committed.

The requirement of legislative linkages to combat organised crime

As stated above, organised crime is now a more global phenomenon. This has been facilitated by the use of information technology which was virtually non-existent in the 1980s and early 1990s. Organised crime knows no boundaries; ever closer co-operation is therefore needed between policy makers, national law enforcement agencies and lawyers at all levels and across national boundaries through the region, as well as on an international scale.

Savona (1995)6 states that there are two types of risk associated with organised crime. These are:

Transnational organised crime risk: This refers to the probability that organised crime groups will expand their structures and activities in countries different from those in which they are initially located. This concept derives from the general assumption that organised crime groups move towards other countries (become transnational) because of two main variables: maximising opportunities and minimising ‘law enforcement risk’. Law enforcement risk refers to the sum of the probabilities of being identified, arrested, convicted and of having one’s assets confiscated.



Illegal enterprise risk: This refers to the risk incurred by organised groups for exercising their criminal activities in more than one country. The two main variables making up illegal enterprise risk are maximising opportunities and minimising law enforcement risk.

Ernesto U. Savona (1995) in his paper entitled ‘Harmonising policies for reducing the transnational organised crime risk’ states that organised crime risk tends to increase when the illegal enterprise risk for the organised crime group is unequally distributed among countries. Organised crime groups tend to internationalism and expand in those countries where opportunities are higher and law enforcement risk is lower. Savona (1995) made the assumption that the more equally the risk is distributed among countries, the less organised criminal groups will be tempted to displace their activities outside the countries where they are traditionally located.

Controlling the distribution of illegal enterprise risk among countries becomes paramount. The greater the external risks for organised criminal groups, the lesser the probability that they will internationalise their activities. If criminal organisations move towards processes of internationalisation because they find areas where law enforcement risk is minimal, co-ordinated international action designed to equalise this risk among countries will minimise or contain the process of internationalisation of organised crime groups. Equalising the risk means putting all countries on the same minimum ground of preventive/control actions.

Linkages between Southern African countries with respect to combating organised crime exist on two levels: the policy level and the practical level. The former involves public declarations regarding the will of the international community in criminal justice matters. The practical approach involves the actual co-operation requested by one country of another in matters such as collecting evidence, arresting a fugitive, freezing assets of criminal origin and extraditing criminals. The political will constitutes the framework for operations at the practical level.

The main purpose or goal of this process of harmonisation is to reduce the transnational organised crime risk and to equalise illegal enterprise risk. Preventive policies are designed to reduce the opportunities for criminal activity and to minimise the vulnerability of legitimate businesses to the infiltration of organised crime.

Crime control policies, in contrast, are intended to control the crimes committed by organised crime groups.

Efforts to combat organised crime

International efforts

It is recognised that the battle against organised crime should be expected to be an arduous and protracted one, requiring attention from national, regional and global levels. Globalisation has profound implications for governance and statehood: it erodes state sovereignty as transnational bodies and institutions increase their influence in national affairs, particularly in developing countries. States are bound together by a network of multilateral and bilateral agreements that create mutually binding obligations, thereby placing governments and their performance under increasing scrutiny.

Globalisation continually manifests itself in the evolution of regional blocs that co-operate in areas of trade, politics and security. Some of the well known regional blocs include the North Atlantic Treaty Organisation, the Organisation of American States (OAS), the Organisation of African Unity, the European Union, the Southern African Development Community (SADC) and the Common Market for East and Southern Africa. This has reinforced the power of intergovernmental institutions such as the World Bank, the World Trade Organisation, the Organisation of Economic Co-operation and Development (OECD) and the International Monetary Fund, especially in developing countries where the member states are dependent on these institutions to support these regional entities.

In this context, the role of national governments is to find a suitable and sustainable balance between taking advantage of globalisation and cushioning the economy from external pressures, including corruption.

In recognition of the transboundary nature of crime and corruption and the negative impact of globalisation in this regard, there are increasing efforts at international level to fight corruption. Several international conferences and workshops have been held on the need to identify and implement strategies and to establish mechanisms to combat corruption. Notable among these are the Lima Conference of 1997, the Global Forum on Fighting Corruption held in the United States in February 1999 and the 9th International Conference Against Corruption held in Durban, South Africa in 1999.

Some regional instruments on fighting crime and corruption have also recently been put in place in Europe and the US. In December 1999, OECD member countries and five non-members adopted the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, appreciating that:

“bribery is a widespread phenomenon in international business transactions including trade and investment, which realises serious moral and political concerns, undermines good governance and economic development and distorts international competitive conditions.”

The OAS also passed the Inter-America Convention Against Corruption to address corrupt business practices in the western hemisphere. Although there is no regional instrument against corruption in Asia, the Asia-Pacific Economic Co-operation Forum continues to work on a programme of action to address issues of bribery, corruption and transparency.

The Global Coalition for Africa and some African countries working together with the World Bank have been attempting to promote a possible African anti-corruption agreement.

Several roundtable conferences to discuss strategies on combating corruption in the region have been held since 1998. SADC member countries participating in the Second Roundtable on Ethics and Governance held in Tanzania in 1999, recommended that countries in the region should commit themselves to the adoption of the principles adopted in February 1999 in Washington by 11 African countries as a basis of strategies in fighting corruption in Africa. These developments at global and regional levels make it desirable for Southern Africa to consider seriously establishing similar measures to deal with issues of bribery and corruption.

SADC efforts to combat organised crime

In recent years, Southern Africa has undertaken a number of important initiatives to curb, combat and eradicate corruption. Over the past five years, governments in Southern Africa have enacted legislation and codes of conduct, established anti-corruption institutions, reformed processes of governance to minimise opportunities for corruption and undertaken national consultative processes to design anti-corruption strategies.

At the regional level, Southern Africa has been active in establishing networks of parliamentarians, ombudsmen, auditors general and private sector leaders in order to enhance existing efforts to combat corruption and to promote ethical conduct across national borders. Furthermore, 11 African nations, including four from Southern Africa, issued an African Ministerial Declaration on Corruption, following the Global Forum on Fighting Corruption in Washington DC, in February 1999. Some Southern African countries earlier endorsed a set of anti-corruption principles at the 1997 conference in Mozambique, facilitated by the Global Coalition for Africa.

Studies have been undertaken in the region in an attempt to identify, quantify and qualify the prevalence of corruption in the region in order to establish a common understanding of the concept and its ramifications on the region’s socio-political and economic conditions. This would also assist in identifying strategies in place to combat corruption at national and regional levels. These studies established that corruption is both perceived and experienced as a serious problem in the region in the various sectors of the economy, and particular concern was raised with respect to the magnitude of the problem in the public sector. Studies have revealed that at national levels, several strategies and mechanisms have been put in place to combat corruption, as indicated above. These studies include:

A discourse on the linkage between corruption, human rights and democracy, presented by the Human Rights Trust of Southern Africa at the Third Roundtable on Ethics and Governance in September 2000 and entitled ‘Human rights and democracy norms in governance’.



Diagnostic tools to measure corruption in Africa. These are model data collection instruments for the development of Afro- centric information on corruption.



‘Anti-corruption mechanisms and strategies in Southern Africa’, developed by the Human Rights Trust of Southern Africa.

All these studies call for a more regional approach to combating corruption in Southern Africa.

The SADC protocol against corruption

The adoption of the protocol in mid-August 2001 sent a strong signal to the international community that SADC, on its own initiative, is serious about combating corruption, thus demonstrating the presence of political will to fight corruption. This will almost certainly improve the environment for investment in the region. This statement should be read in line with the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which requires its members to have an anti-corruption clause in their bilateral trade and finance agreements with third parties.

In the absence of a SADC Anti-Corruption Protocol, SADC countries will be required to sign anti-corruption clauses when dealing with OECD countries. The OECD countries will be using their convention while SADC countries will have no guiding principles. The protocol will therefore be the basis for contracting with third parties, thereby reducing the need for individual country bilateral anti-corruption clauses.

(It is necessary that the legal framework is in the form of a protocol to ensure that it is binding on all members as SADC declarations are of a non-binding nature.)

Now that the protocol has been adopted, it should be incorporated into national laws. This should help curb corruption at national and regional levels, thereby leading to a reduction of corruption, the protection of resources and an increase in investment. The protocol will be the main instrument on which anti-corruption strategies, such as legal frameworks and protection of whistleblowers, are based.

Conclusion

It is evident from what has been discussed that organised crime is a scourge that must be eradicated. It is argued that legislation is the only vehicle that can effectively be used to combat organised crime. But legislation is only useful if it is capable of being enforced.

Legislation will derive its practical value in circumstances where it is generally recognised and is not hampered by political and other non-legal issues when it comes to enforcement. This is one of the main reasons why it was necessary to develop a SADC Protocol Against Corruption.

Legislation is most effective when it is clear and unambiguous, available to everyone, enforceable, drafted to deal with the crime that it is intended to address; and when it is easy to interpret. Legislation is accordingly extremely useful and is much needed to deal effectively with organised crime.

Notes

Anti-Corruption Mechanisms and Strategies in Southern Africa.



UNDP Human Development Report, 2000, p 1.



Ibid.



The Raoul Wallenberg of Compilation of Human Rights Instruments, 1997, edited by G. Melander and G. Alfredson.



Quoted in P Matsheza and C Kunaka, Anti-Corruption Mechanisms and Strategies in Southern Africa, 2000.



EU Savona, Harmonising policies for reducing the transnational organised crime risk. A paper prepared for the international workshop, Discontinuous institutional change and the economic system: theory and evidence, 8-13 July 1995.