The Daily Maverick report by Karabo Mafolo (“SA needs an independent anti-corruption agency, says advocate Tembeka Ngcukaitobi,” 26 August) highlighted a few critical statements and suggestions by participants at the Council for the Advancement of the South African Constitution’s (Casac) webinar held on Tuesday 25 August for the establishment of an anti-corruption agency in South Africa. Present at that webinar were some of the country’s celebrated top legal minds, including advocate Thuli Madonsela, and advocate Tembeka Ngcukaitobi. 

SA needs an independent anti-corruption agency, says advocate Tembeka Ngcukaitobi

Another Daily Maverick article (“Public Protector: SA corruption cannot be classified as a ‘crime against humanity’,” 24 August) reported the views of the current public protector, advocate Busisiwe Mkhwebane, at an earlier webinar hosted by the United Nations Association of South Africa (Unasa), including the question of whether corruption should be classified as a crime against humanity.  

Public Protector: SA corruption cannot be classified as a ‘crime against humanity’

We would like to address key issues raised at the Casac and Unasa webinars by the country’s eminent legal minds because they collectively address the important question of the rampant corruption in South Africa.

Establishment of an independent anti-corruption agency

The report by Mafolo states that, “Ngcukaitobi said that the country needs an independent anti-corruption agency that will be able to investigate and arrest suspects” and that this suggestion was in fact supported by Madonsela who proposed that the country follow the Singaporean “anti-corruption model which is based on meritocracy, pragmatism and honesty”.

Key features of South Africa’s Independent Anti-Corruption Agency (IACA), according to Ngcukaitobi, is that it should be accountable to Parliament and not the president. 

“They should rather account to Parliament. Parliament has a fractured political party system, but that’s better than having to account to a politician,” said Ngcukaitobi. As has been proven across the world, even in cases where such an agency is accountable to the head of state, issues of independence and effectiveness may become problematic. It is therefore that South Africa with its exponentially growing problem of corruption must have a sui generis model of accountability as opposed to answerability, should the IACA be established. Madonsela recommended that the IACA should be established as one of the Chapter 9 institutions.

The proposed establishment of the IACA has been made before by other legal minds – academics and practitioners alike. A person who immediately comes to mind is Dr Khotso Lekubu of the University of South Africa. The proposal was made in his doctoral thesis titled “A critique of the South African anti-corruption strategies and structures: a comparative analysis”.

In his thesis, Lekubu argued that “with the amendment of the Prevention and Combating of Corrupt Activities Act of 2004 (PCCAA) to make provision for the establishment of an Independent Anti-Corruption Commission Against Corruption, South Africa is sure to realise a dream of a better South Africa and will also be able to reposition the country as a global competitor and improve its rankings on Transparency International’s Corruption Perceptions Index (CPI).”

In fact, Articles 6 and 36 of the UN Convention Against Corruption and Article 4(1)(g) of the SADC Anti-Corruption Protocol of 2004, recommend “that Member States should consider establishing, maintaining an independent ACA”, notes Lekubu. Further, Article 5(3) of the AU Anti-Corruption Convention adopted by the AU at its Anti-Corruption Convention in July 2003 calls for the establishment of an Anti-Corruption Agency (ACA).

Botswana, Hong Kong and Singapore, with their independent anti-corruption agencies, are typical examples of the need for independent functioning of such an agency. The three countries have, as a result of their independent agencies, experienced an impressive decrease in corruption levels and a better standing on the CPI compared to South Africa.

For example, the Singaporean agency (the Corrupt Practices Investigation Bureau, CPIB) is cloaked in independence to investigate and prevent corruption in both the public and private sector. Operationally, the CPIB director is accountable directly to the prime minister. According to the relevant legislative framework in Singapore, the president is allowed to direct the CPIB to investigate a prima facie case of corruption should the prime minister, for some reason, choose to authorise the CPIB to proceed with such a prima facie case.

“In this way, the incorruptibility of the government is assured, as the CPIB can perform its function without fear or favour,” said Lekubu (p.166]. Further, the CPIB has extensive powers of investigation and to call or subpoena the attendance of witnesses for an interview, to request disclosure of information or request further information from individuals, including investigating financial and other records of suspects.

The Hong Kong ICAC operates through departments, namely the departments of Operations, Corruption Prevention, and Community Relations. The Operations Department within ICAC receives, considers and investigates reports of alleged offences. The Operations Department serves as the investigative arm of the ICACA, with wide-ranging powers of arrest and evidence collection.

The Directorate on Corruption and Economic Crime (DCEC) of Botswana has wide functions, notable being powers exercised to arrest with or without a warrant of arrest and powers to search a person and the premises or place in which he/she was arrested and to seize and detain anything believed to be or to contain evidence of any corruption-related offences. DCEC was established in 1994 to investigate all forms of corruption, instead of the police.

Classification of corruption as a human rights violation

Should corruption be classified as a human rights violation? Interestingly, our former and current public protectors have diametrically opposing views with regard to this question.

“We’ve been asking that corruption should be registered as a human rights violation because it robs people of their rights to equality,” said the former Public Protector Thuli Madonsela at the Casac webinar. On the other hand of the spectrum, the current protector, Mkhwebane at the Unasa webinar, expressed the view that “corruption could not be classified as a human rights violation because it failed to meet the criteria laid down by the [Rome Statute of the International Criminal Court] for such an offence”. Mkhwebane’s view must be read in the context of the theme of the webinar: “Should corruption be considered a crime against humanity?”  

To borrow words from an article by Ben Bloom of the Washington College of Law, grand corruption has had such a crippling impact in South Africa and other developing states that the view that corruption may be considered a crime against humanity under Article 7 of the Rome Statute to allow the prosecution of government officials is not without merit.

As reported by Rebecca Davis in Daily Maverick, Mkhwebane argued that “for corruption to be a crime against humanity, that crime should be a policy of that particular state. At the policy level, [the South African] government recognises that corruption undermines good governance”.

Denis Njoroge interestingly notes that “grand corruption has all the elements and similar effects to those of crimes against humanity and for this reason, grand corruption should be granted the status of the prohibited acts under Article 7 of the Rome Statute and as a result, the International Criminal Court will have jurisdiction to prosecute on the same”.

Without delving too much on the academic side of this debate, it is interesting that the International Criminal Court as a viable tool in the fight against grand corruption finds support from academics in other countries. According to Njoroge, “a prosecutor only needs to satisfy either the widespread or the systematic element so as to successfully succeed in the prosecution of crimes against humanity” and so must be the case with grand corruption.

To borrow words from an article by Ben Bloom of the Washington College of Law, grand corruption has had such a crippling impact in South Africa and other developing states that the view that corruption may be considered a crime against humanity under Article 7 of the Rome Statute to allow the prosecution of government officials is not without merit.

The above having been said, the question of the classification of corruption as a human rights violation is one of the perennial questions that has seen a plethora of academic discourse and submissions by the anti-corruption movement. In her insightful 2018 article on the subject, titled “Corruption as a Violation of International Human Rights” in the European Journal of International Law, Anne Peters notes that the human rights-based approach to combating corruption has been criticised as vague and overreaching [p.1253].

What we regard as properly contextualising the diametrically opposed views of Madonsela and Mkhwebane is what Peters regards as the dual question, which must inform this debate: whether and under what conditions corrupt acts or omissions can technically be qualified as an actual violation of international human rights (doctrinal analysis of the positive law) and whether corruption should be conceptualised as a human rights violation (normative assessment). The normative assessment question speaks to what Mkhwebane regards as the failure of the classification of corruption as a human rights violation to meet the normative framework of the international human rights instruments.

For a long-term solution, we must as a country start a debate about whether the Constitution of 1996 should not be amended to specifically speak to widespread or systematic corruption as a human rights violation.

To the credit of Mkhwebane’s position, it is reasonable to note a 2010 judgment by the Economic Community of West African States (Ecowas) Court of Justice in a case dealing with corruption in the education sector of Nigeria, brought by the Socio-Economic Rights and Accountability Project (Serap). As noted by Peters, the case acknowledged that “corruption has a ‘negative impact’ on the human right to quality education, as guaranteed by Article 17 of the African Charter of Human and People’s Rights”. However, it ruled against the view that corruption “per se constitutes a violation of that right” under international human rights law.

The controversy over the classification of corruption as a human rights violation notwithstanding, it is important for us to note the hugely negative impact corruption has on the protection and promotion of human rights in South Africa. Peters convincingly argues that the framing of corruption not only as a human rights issue, but even as a potential human rights violation can contribute to closing the implementation gap of the international anti-corruption instruments and can usefully complement the predominant criminal-law based approach.

In our view, South Africa must begin with a human-rights based approach to anti-corruption and thus strike a balance between both the doctrinal and normative arguments in this debate. To paraphrase Peters, the United Nations human rights instruments support the idea that corruption negatively impacts human rights in that: corruption “undermines” human rights; that it has a “grave and devastating effect” on the enjoyment of human rights; that “corruption in government, institutions and society at large is a significant obstacle to the enjoyment” of human rights; and that violations of human rights’ covenant rights are “facilitated where insufficient safeguards exist to address the corruption of public officials or private-to-private corruption”. [pp.1253-1254].

Readers are urged to access the said article by Peters for more on the questions of “which human rights are involved” and “whether it makes sense to speak of human rights violations”.

In conclusion, we agree with the establishment of the IACA. However, for such an agency to be effective and efficient, it must be well-designed, well-resourced and independent from the strictures of political power and influence.

Further, though noting the difficulties of classifying corruption as a crime against humanity or a human rights violation, a serious rethink must be made by South Africa to introduce legislation dealing with corruption and corrupt activities, and a provision on extra-territorial jurisdiction. Thereafter, the country must expedite or activate foreign legal assistance agreements and extradition treaties with other nations globally.

For a long-term solution, we must as a country start a debate about whether the Constitution of 1996 should not be amended to specifically speak to widespread or systematic corruption as a human rights violation.

Alternatively, we may consider fortifying the accountability provisions in the Constitution by specifically mentioning an obligation to prevent and desist from corruption. DM

Dr Benni Khotso Lekubu is a senior lecturer in the Department of Police Practice at the Unisa College of Law.

Professor Dr Omphemetse S Sibanda is a professor of law and the executive dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.