Various mechanisms can be used to control and prevent corruption. How effective they are depends on a range of factors, including independence, sufficient resources, and political will. A nation that is serious about fighting corruption may need to establish new institutions for doing so, or strengthen existing ones.1

In South Africa, the government's National Crime Prevention Strategy (NCPS), announced in May 1996, names corruption within the criminal justice system as a key priority. Fraud, corruption and graft involving government funds are seen to be undermining public confidence in democratic government itself, and therefore as deserving urgent attention.

Over the past two decades, numerous international initiatives have been launched to combat and control corruption.2 Important international organisations, including the United Nations, the OECD, the Council of Europe and the Organisation of American States, are taking steps to fight corruption.

In Africa, the Southern African Development Community (SADC) has vowed to stamp out corruption, in order to safeguard national economies and instil confidence in investors.3 It has drawn on international instruments such as international conventions, and made formal recommendations to member states.

Of particular interest here is the stance on corruption taken by the World Bank. Under the umbrella of economic policy reform, the bank is working to help governments undertake economic, policy, and regulatory reforms that discourage corruption and fraud. It is also concerned with institutional reform, ie building institutional strength inside and outside the public sector through various reform programmes. Primarily, the bank seeks to guard against corruption in its projects, and emphasises that it will not tolerate corruption in any of the programmes it supports.

SOUTH AFRICAN LEGISLATIVE FRAMEWORK

In South Africa, to bribe someone or accept a bribe is an offence under the Corruption Act (94 of 1992), which provides for the criminalisation of corruption and repeals the common law crime of bribery. To all intents and purposes, corruption and bribery are the same offence.

South Africa's transition to democracy has also opened the country to international organised crime and money laundering syndicates. Several bills have been drafted to counter these threats. The cabinet has approved the following bills, which are designed to increase the capacity of law enforcers to fight corruption:

the International Co-operation in Criminal Matters Bill;


the Proceeds of Crime Bill;


the Extradition Amendment Bill;


the Money Laundering Control Bill; and


the Special Investigating Unit and Tribunals Bill.

maladministration involving the affairs of the state at any level;



the abuse or unjustifiable exercise of power, improper conduct, or undue delay by a person performing a public function;



an improper or dishonest act, omission, or corruption with respect to public money; and



improper or unlawful enrichment, or receipt of any improper advantage by a person as a result of an act or omission in the public administration or in connection with the affairs of government.

The public protector is concerned with maladministration in the broader sense rather than the investigation of crime; evidence of the latter is referred to the police.

A shortage of resources is inhibiting the establishment of nine regional offices to make the office's services more accessible. Because of staff shortages, and the fact that cases have increased by about 400 per cent, from 69 in June 1996 to 289 in August 1996, the office is not able to handle cases effectively; it currently has a backlog of about five months.13

Commissions of inquiry

Several independent commissions of inquiry have investigated specific charges of corruption. These include:

the Skweyiya commission of inquiry into corrupt practices by various government officials and the misuse of state funds in the former Bophuthatswana;



the Budlender commission of inquiry into irregularities in relation to assets in former homelands;



the Heath commission of inquiry into matters relating to state and other property in Eastern Cape;14



the Browde commission of inquiry into irregularities in awarding contracts, appointments, promotions, and improvement to service contracts;



the subsequent White commission of inquiry into irregular salary increases awarded to civil servants; and



the Krugel commission of inquiry into allegations of unprofessional and/or dishonest conduct by attorneys practising under the jurisdiction of the Law Society of the Transvaal.15

At least nine commissions have investigated various aspects of government during the past two years, many concluding with recommendations to prosecute. The existing Commissions Act only allows commissions the right to investigate and make recommendations; few of these are ever acted upon. Frustration is mounting among officials investigating corruption in the civil service, as it appears their recommendations are seldom acted upon, and there has been little recourse to the courts. For various reasons, the government currently seems to lack either the political will or the capability to address commissions' recommendations.16

Special investigations units and tribunals

To complement the activities of these institutions, new legislation has been adopted which allow for the creation of special investigating units and special tribunals to deal with corruption. Hopefully, these bodies will deal with such cases more swiftly and decisively, thereby enhancing the public's confidence in the government's commitment to combat corruption.17

President Nelson Mandela recently abolished the Heath Commission and appointed the first special investigation unit and tribunal to root out corruption in government departments nationwide, and investigate at least R5 billion in government corruption, illegal land deals (which particularly affect the poor) and theft. Along with unprecedented powers to prosecute, the commission is able to set up task units anywhere in the country, access just about any information required, and allowed to travel anywhere in the world to gather evidence.18

These legislative steps have not been uncontested.19 It has been argued that these units, which may investigate criminal offences, will encroach on the jurisdiction of bodies such as OSEO and the public protector, which have similar powers and duties. In effect, this may lead to further fragmentation and a lack of co-ordination of efforts to combat corruption, and it has been argued that, rather than create new mechanisms, existing bodies should be properly staffed and utilised instead.20 However, as ad hoc structures to investigate a very specific situation, others believe these units do not represent a duplication of functions, but rather bolster existing mechanisms.21

The creation of this special investigation unit is seen as the strongest move yet by government to stem the rot of corruption. However, the creation of such a powerful new commission could present some ticklish constitutional problems related to the separation of powers.

PREVENTION: SELF-REGULATION AND CODES OF CONDUCT

The major challenge is how to prevent these crimes from being committed in the first place, since it is unlikely that enough resources will be available soon to police and prosecute fraud and corruption once it has occurred. As such, the best protection against white-collar crime and corruption is for government and business institutions to set their own house in order by means of effective and enforceable codes of conduct, internal controls, and vigilant self-regulation.

The first step in preventing corruption must be to determine the scope of acceptable behaviour by public representatives (civil servants and elected representatives). This may be difficult, due to lack of consensus.22 However, there are principles of public life which can be followed.23 In public service occupations, professional ethics have been described as the values underpinning impartiality, objectivity, integrity, efficiency, effectiveness and discipline of public servants when acting in the public interest in general and exercising discretionary powers in particular.24 The failure of public servants to observe moral obligations has not only affected the efficiency of the public service; it has also brought it into discredit, leading to the public losing faith in government.

A code of conduct for the public service was announced in the Government Gazette of 10 June 1997. 25 In order to give practical effect to the relevant constitutional provisions relating to the public service, all state employees are expected to comply with it. It is intended to act as a guideline to what is expected from them morally, both in terms of their individual conduct and in relations with others. It is intended to enhance professionalism, and improve confidence in the public service.

The code consists of five sections, covering:

the professional nature of public service employees' relationships with the legislature and the executive, stressing loyalty and accountability;



relationships with the public, emphasising impartiality, fairness and respect in the delivery of services;



the obligations of individual public servants in their relationships with one another as they interact in the workplace, emphasising co-operation, effectiveness and integrity;



values associated with the performance of duties, aimed at instilling ideals of honesty, efficiency, accountability, transparency and fighting corruption, fraud, nepotism and conflict of interest among public servants; and



principles and values related to personal conduct and private interests, in order to inculcate responsible behaviour and integrity, as well as provide guidelines to counteract bribery.26

A manual containing practical examples of how to apply the code is to be released. A video promoting the code will also be prepared, and will be used at workshops held to help public servants assimilate the code.27

The national assembly has also adopted a code of conduct – an important signal that the government wants to regulate the behaviour of its members in a manner conducive to democratic values and commensurate with the ethics of good government. Rules do not in themselves preclude the possibility or even likelihood of serious forms of corruption; however, their complete absence creates ideal conditions for corruption or conflicts of interest – or, more importantly, perceptions of corruption and conflict of interest which, in turn, eat away at the fabric of public trust and confidence in democratic government.28

This code covers all members of parliament and to a limited extent their spouses, and calls for disclosure in 10 areas of financial and other interests relevant to the performance of their public duties, in order to avoid possible conflicts of interest which may result in corruption. The code requires the opening of a register of member's interests, which will be open to the public and must be updated yearly. There is also a private register in which the exact value of certain private interests and the interests of family members is recorded.29

If parliamentary codes are to have any real effect, it must be made plain that they are compulsory rather than advisory and that they will be enforced on pain of dismissal or suspension.30 The current South African code does not have the force of legislation; nor does it bind members of provincial legislatures, or regulate the non-financial conduct of MPs. It appears as if the administrative burden of operationalising the code, as well as the lack of familiarity with the process, has been underestimated.31

Civil society watchdogs

The importance of government–civil society relationships for corruption is perhaps best illustrated by considering the role and power of non-governmental organisations (NGOs), particularly the media, in highlighting abuses.

Anti-corruption reforms tend be enthusiastically supported by the public and the media. By adopting such measures, a government receives credit for its principled approach, and also tends to receive credit when corruption is exposed rather than being blamed for the fact that the corruption existed in the first place.32 However, in many countries new leaders have ridden to office on anti-corruption platforms only to be exposed as thoroughly corrupt in turn.33 As such it is vital that a citizenry, through the media and other civic bodies, demands a high moral performance from its officials and that the political will is sustained to enforce policy measures designed to tackle the problem of corruption.34

Even the best safeguards, institutions and practices can give way to abuses. For this reason, a crucial safeguard of high standards of public morality and accountability is the ability of citizens and organisations to hold public officials accountable for their acts, and to ensure that public institutions fulfil their functions and responsibilities properly and effectively. A most effective control against corruption may come from the vigilance exercised in an independent press. By sensitising the public to blatant abuses of power, the media can expose corruption and immoral behaviour and demand that such acts be corrected and punished.

Thus the watchdog role of the non-governmental organisations and other bodies making up civil society is crucial for ensuring good government. The role of opposition parties in holding the government of the day accountable is another important tool.

The history of civil society in South Africa has shown that it is has the capacity to successfully oppose structures of state domination; in the new political environment, this sector is challenged to help safeguard the integrity, accountability and transparency of government. The capacity of civil society to expose corrupt practices, hold those responsible accountable and force governments to be more transparent should become a more potent safeguard.35

The establishment in mid-1997 of a South African chapter of Transparency International, the international NGO formally constituted in 1993 to build international and national coalitions against corruption, is a positive development. More independent research on corruption, particularly regarding the crucial role which civil society can play, is needed.

Corruption and the criminal justice system

An independent judiciary and efficient criminal justice system are regarded as the primary agents for controlling corruption. While any corrupt exercise of public office is likely to affect the social, economic and moral fabric of the community, corruption within the criminal justice system is particularly harmful; thus the proper administration of justice is the last resort of those who seek justice, order and stability in the state. As such, those to whom the administration of justice has been entrusted cannot be allowed to bring that administration into disrepute, or reduce its efficiency.36 Corruption in the system seriously undermines justice and the rule of law.37

In South Africa, corruption in the criminal justice system is said to be pervasive. This obviously has severe consequences for public perceptions of the institutions of criminal justice, which many South Africans (especially the poor) already doubt, as the legal system was previously perceived as one of the main vehicles for enforcing apartheid.38

Particularly disturbing is the theft and/or sale of police dockets, with indications that prosecutors, court interpreters and police officials are involved. Within the Department of Justice, the most common acts of corruption involve the theft of warrant vouchers, the destruction of case dockets, and the withdrawal of charges in return for money.39 Low salaries, a lack of accountability and insufficient action against corrupt members are among the reasons cited for such activities, which defeat the ends of justice as well as tarnish the image of the judicial system.

The government has acted to address this problem. There is, however, a dilemma here. Any large-scale crackdown on corruption is bound to undermine flagging confidence in the criminal justice system still further – but a denial of the extent of the problem will continue to undermine public confidence in the institutions of criminal justice altogether. This will be particularly so if, in the longer term, it becomes common knowledge among ordinary citizens that the system's representatives – in the form of the police, court and correctional services (as well as welfare officials) – are open to corruption.40 This appears to be the case already.

NCPS proposal on anti-corruption in the criminal justice system

The National Crime Prevention Strategy (NCPS) identifies corruption in the criminal justice system as one of seven priority areas to be addressed. Proposals for developing an anti-corruption strategy in the criminal justice system suggest that a national programme be designed and implemented from the ground up in each of the four main departments: Safety and Security, Justice, Correctional Services and Welfare. Each should establish a working group on corruption comprising all stakeholders who can help to resolve the problem. The working groups would begin by:

identifying the main types of corruption in each department;


identifying the main areas where corruption takes place;


identifying contributing factors to the problem; and


assessing the impact of departmental strategies adopted to date.

The national programme team, whose brief would be to share lessons and successes across departments and to identify cross-cutting factors which contribute to corruption, would focus on:

preventive as well as investigative strategies against corruption;


identifying causal factors;


identifying possible solutions with the departments and beyond; and


problem-solving strategies.

The national programme team and departmental working groups will not be responsible for investigating allegations of corruption. Rather, some mechanism for co-ordinating investigations will have to be evolved, forming the basis of a new and entirely independent body responsible for dealing with all corruption in government.41

This proposal is to be welcomed. However, bearing in mind the implementation and co-ordination problems which other NCPS programmes have experienced – resulting in non-delivery in some crucial areas, for example victim empowerment – a note of caution should be sounded. The establishment of further committees and working groups may be just one of a range of measures needed to address this problem effectively. Also, the absence of civil society representation on the proposed departmental committees may be a cause for concern.

SAPS anti-corruption units

Combating corruption in the SAPS has been defined as a national priority in the 1996/7 Police Plan, and in 1995 the new government established anti-corruption units to give a clear message that corruption in the police would not be tolerated. A total of 582 members were involved in corruption inquiries between January and June 1996, with 15 members convicted.42 While this exposes the extent of corruption in the service, it also demonstrates that there is a will to root out the wrongdoers.43 On the other hand, such action may have the effect of stimulating popular perceptions that corruption within the police is increasing.

However, the anti-corruption unit of the SAPS appears to be faced with several difficulties.44 For one, it is not independent and is therefore viewed with some scepticism from within – the situation of police investigating other police is fraught with problems – as well as outside the police. The creation of the Independent Complaints Directorate may address the question of independence; however, in the long term the fate of the anti-corruption unit appears uncertain. Further problems are a lack of clarity among members of the unit about their brief, as well as a shortage of skilled personnel and resources.

CONCLUSION

Internationally, crimes such as fraud and corruption command a relatively small portion of criminal justice resources. Since these crimes are less visible, and therefore a less apparent problem, the natural tendency is for society to focus its investigative resources on situations where victims, witnesses and potential results are readily apparent. Investigations into corruption rarely fall into this category.45 However, considerable resources are needed to investigate corruption effectively, and techniques capable of uncovering it must be developed and maintained.46

If the criminal justice system is to effectively control corruption, improved training of law enforcement and justice personnel active in this field is urgently needed. In countries such as Mexico, Hong Kong and Singapore, it has been recognised that the scale and nature of anti-corruption activities require a special and well-resourced institution or set of institutions to complement normal police activities.

For example, Hong Kong's Independent Commission against Corruption follows a three-pronged approach:

repression (investigation and prosecution);



prevention (aggressive auditing to eliminate situations which could lead to corruption); and



public education and mobilisation.

There are a number of other lessons to be learned from the Hong Kong experience.

First, in order to be effective, the investment in the institution(s) fighting corruption needs to be considerable. In 1994 the Independent Commission had 1 300 employees for a jurisdiction of just over 5 million people. An anti-corruption strategy which is understaffed and under-resourced does more harm than good by raising unrealistic expectations of the government's capacity to clean up corruption.



Second, there has to be a legislative provision which creates a duty to explain, 'an evidential burden', on a government employee who is obviously living far beyond his or her means. There are a number of issues around the constitutionally acceptable wording of such a provision, but there are precedents.



Finally, public credibility and support is crucial to a successful campaign against corruption. The Hong Kong commission relied on confidential, sometimes anonymous, reports from members of the public to target some of its investigations. It also had four regional offices where citizens could go to make reports. This type of secure public access to the anti-corruption authority is essential, and the Hong Kong Commission received more than 3 000 complaints a year, each of which was followed through.47

Establishing independent anti-corruption bodies is a significant and symbolic step by governments, signalling that corruption will not be tolerated and that significant steps will be taken to eradicate it. Importantly, these institutions must be independent of government but subject to the rule of law, or risk becoming forces of repression in their own right. Such bodies may also have the advantage of protecting honest politicians or public officials against baseless accusations of corruption. This is because those making such allegations will be aware that there is an effective body which may well investigate the allegation and find it to be unfounded or even malicious.48

Transparency International has identified the following indicators of any serious and concerted reform effort against corruption:

a clear commitment by political leaders to combat corruption wherever it occurs, and to submit themselves to scrutiny;



a primary emphasis on the prevention of future corruption, and on changing systems;



the adoption of comprehensive anti-corruption legislation implemented by agencies of manifest integrity;



the identification of those government activities as well as departments most prone to corruption, and a review of both substantive and administrative procedures;



a programme to ensure that salaries of civil servants and political leaders adequately reflect the responsibilities of their posts and are comparable to those in the private sector;



a study of legal and administrative remedies to be sure that they are an adequate deterrent;



the creation of partnerships between government and civil society; and



efforts to make corruption a 'high-risk, low profit' undertaking.49

Ways in which anti-corruption efforts can be derailed include:

the limits of powers at the top (an incoming administration may wish to tackle corruption effectively but inherits a corrupt bureaucracy that impedes efforts for change)



the absence of commitment at the top



overly ambitious promises leading to unrealisable and unachievable expectations and a loss of confidence



reforms that are piecemeal and uncoordinated so that no one "owns" them and no-one is committed to see that the reforms are implemented and kept up to date



reforms that rely too much on the law or too much on enforcement



reforms that overlook those at the top and only focus on the small fry



the failure to establish institutional mechanisms that will outlive the leaders of the reforms



the failure of government to draw civil society and the private sector into the reform process.50

In South Africa, particularly in respect of the restructuring of social security and the criminal justice system, indications are that resources are being allocated to support anti-corruption efforts. However, the proliferation of new institutions with resources which are too limited to be effective is a cause for concern.

What is clear, however, is that any attempt to seriously address fraud and corruption in the area of social security will be piecemeal and symptomatic if they fail to address the larger, more difficult issues concerning the restructuring of the public service as a whole. Only then will government's commitment to achieving more effective service delivery to all its citizens be remotely realisable.

In order to effectively address corruption, multidisciplinary and comprehensive policy strategies drawing on a range of resources, including international co-operation, are essential. South Africa is plagued by many of the common problems of developing countries in transition. Resource constraints, especially in the light of rationalising the civil service and remnants of corrupt authoritarian practices familiar to Latin American and East European societies, create conditions under which corruption thrives.51 More research on appropriate interventions to prevent corruption in such societies is required. Most importantly, South Africa's criminal justice system needs to be bolstered to enable fraudsters and corrupt officials to be successfully prosecuted as well as purged, to ensure that such successes are not undermined from within. For criminal law to be effective, it must be adequately enforced. If there is little chance of this occurring, few will be deterred, and fewer still penalised.

ENDNOTES

Executive summary, TI Source Book.



See United Nations Economic and Social Council, Commission on Crime Prevention and Criminal Justice, Fifth Session, Vienna, 21–31 May 1996, paragraph 4-11, for recent international initiatives against corruption.



C Chimete, Southern African states to tackle corruption, Southern Africa Research and Documentation Centre (SARDC), Harare, 9 April 1997.



Open Democracy Bill, 1996.



SAPS Commercial Crime Head Office, fax dated 24 February 1997.



See L Camerer, White collar crime in South Africa: a comparative perspective, African Security Review 5(2), 1996, for an overview of the problems associated with policing and prosecuting commercial crime. See also Business Against Crime report on commercial crime and blockages in the criminal justice system.



Office for Serious Economic Offences, Fax, 11 March 1996.



Corruption, Business Day editorial, 23 February 1996.



Report of the auditor-general on the accounts of the national government for 1994/5.



Ibid.



Piet Marais, How state finances are sinking, F and T Weekly, 4 April 1997.



Ibid.



Ibid.



The Heath commission saved the taxpayer some R10 billion by stopping the unlawful promotion and salary increases of 92 officials in the auditor-general's office in Bisho.



J Swanepoel, Corruption: destabilisation of developing and transitional economies, paper read at the 14th international symposium on economic crime, Cambridge, 8-13 September 1996.



R van der Kooy, How bad the civil service really is, F and T Weekly, 1 April 1997.



A M Omar, Minister of Justice, media release on the institution of Special Investigating Units and Special Tribunals Bill, Cape Town, July 1996.



D Delport, Answer the anti-crime call, Sunday Tribune, 26 May 1996.



W Hartley, National commission to probe corruption, Business Day, 1 March 1996.



J Swanepoel, Comment: the institution of Special Investigating Units and Special Tribunals Bill, Pretoria, September 1996.



Public protector, Comments on the Institution of Special Investigating Units and Special Tribunals Bill, Pretoria, September 1996.



Independent Commission Against Corruption of New South Wales.



Summary of the Nolan Committee's report on standards in public life, London: HMSO, 1996.



D Oluwu and S Rasheed (eds), Ethics and accountability in the African public service, ICIPE Science Press, 1993.



Ibid, p 26.



Statement by the Public Service Commission at the launch of the code of conduct for the Public Service, 17 June 1997.



Ibid.



Idasa, Parliamentary ethics and government corruption: playing with public trust, Public Opinion Service Reports 3, February 1996.



Ibid.



Independent Commission Against Corruption of New South Wales, Defining the fundamental political values of the Commonwealth against corruption, Commonwealth Ministers Law Memoranda, 1993.



H Corder, South African code of conduct for MPs, TI Newsletter, December 1996, p 3.



Independent Commission Against Corruption of New South Wales.



P Glynn, S Kobrin and M Naim, The globalisation of corruption, Southern Africa Economic Summit, Cape Town, 22–24 May 1996.



Oluwu and Rasheed, Ethics and accountability in the African public service.



Ibid, p 301.



State vs Newyear, SACR 626 (A), 1995.



Independent Commission Against Corruption of New South Wales, pp 317-334.



G Radloff, Professional ethics - the response of legal practitioners to a questionnaire, De Rebus, August 1996.



P du Rand, Letter, Department of Justice, 8 October 1996.



M Shaw, Reforming South Africa's criminal justice system, IDP Policy Paper no 8, Halfway House: Institute for Defence Policy, August 1996.



Proposal on corruption, draft 2, 10 February 1997.



Breakdown of statistics: anti-corruption unit, South African Police Service, January to June 1996.



The right stuff, Sunday Times, 6 October 1996.



Interview with anti-corruption unit in Gauteng, 16 October 1996.



Independent Commission Against Corruption of New South Wales, pp 317-334.



Ibid.



V del Buono, e-mail, 21 April 1997.



Independent Commission Against Corruption of New South Wales, pp 317-334.



Executive summary, TI Source Book.



Ibid.



L Camerer, Derailing the gravy train: controlling corruption in South Africa, The Journal of Financial Crime, 4(4), Cambridge, June 1997.