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Fighting corruption in the SADC region: An independent and impartial judiciary gets the job done better

The unspoken tragedy in Africa that keeps corruption alive is that the proceeds of crime and illicit money are the raw material for election campaigns and election buying, says the writer. (Photo: Unsplash/Scott Graham | Photo: Gallo Images / Jason Alden / Bloomberg via Getty Images | Photo: Unsplash / Tingey)

A judiciary that is independent and impartial is the bedrock of a democracy and the rule of law, and is the last line of defence against any encroachment on rights and freedoms under law. Based on the current Africa Integrity Indicators, the continent is making progress, albeit slowly, on judicial independence. However, to fight corruption effectively also requires an enabling legal framework, which most Southern African Development Community countries don’t have.

This is an edited version of a speech presented to the Southern African Development Community (SADC) Parliamentary Forum Standing Committee on Democratisation, Governance and Human Rights meeting on 26 October 2020.

Corruption is robbing our region and indeed the entire African continent of its future. The social costs of corruption are incalculable and incontestable. It is on account of the seriousness of this matter that we need to speak frankly and clearly.

A judiciary that is independent and impartial is more likely to be effective in fighting corruption than the one that is not. A judiciary that is the lapdog of the executive cannot enjoy the confidence of the people. The lifeblood of any judiciary is the confidence and trust the people repose in it. As is often said: The judiciary is the last line of defence against any encroachment on rights and freedoms under law. It is incontestable that corruption is a violation of human rights. It deprives people of the resources they need to survive and thrive.

Contextual considerations – political will is critical in fighting corruption

Before discussing the role of the judiciary in fighting corruption, and in order to put the issues of the moment in sharp focus and context, it is important to understand that fighting corruption is fundamentally a political project. The politicians in the executive and legislature must take the lead and the people should trust that they mean what they say when they promise zero tolerance for corruption.

To this extent, we need to seriously pose this question at the very beginning of our discussion: Are our respective national political leaders leading the war against corruption credible? Do they have the moral standing to win the confidence of our people? Are they perceived to be corrupt?

If they are, winning the war would be a Herculean task.

The unspoken tragedy in Africa that keeps corruption alive is that the proceeds of crime and illicit money are the raw material for election campaigns and election buying, with the result that criminal cartels are now buying governments-in-waiting in advance. This phenomenon turns the ruling elites into enemies of their own people, because they are bought in advance to pursue the interests of their sponsors when in power.

That is why regulation of finance campaigning must be the next big thing in our region that independent anti-corruption bodies and civil society must focus on. Perhaps our host, the Southern African Development Community Parliamentary Forum (SADC PF), can initiate a conversation about this issue before it is too late to resuscitate democracy in our region.

The proceeds of crime and the illicit money funding political parties will destroy any semblance of democracy we may have. They subvert the will of the people and make the expression of that will inarticulate. The struggle for political pluralism and democracy in Africa was premised on giving people a choice on who should govern them, and not criminal cartels.

The judiciary on its own, no matter how independent it may be, will not succeed in breaking the back of corruption until we address the political question – the democratic deficit that makes corruption thrive. The national leadership leading the war against corruption may only succeed if it is credible. They must walk the talk and live the promise.

The judiciary has a very important role to play in fighting corruption, but the extent to which the judiciary could effectively fight corruption is a function of the state of democracy and political will in any given country. I theorise that the countries with a democratic deficit invariably suffer the misfortune of captured and ineffective corruption-fighting institutions. It is in countries with a democratic deficit that the voices of civil society against corruption, the voices of students, journalists and other voices of change,  are violently suppressed. Corruption tends to thrive in countries where there is no freedom of information, where the national leadership is not obliged to declare assets and liabilities, where there is poor governance, where freedom of the media is suppressed and democratic rights curtailed.

Our region’s worsening corruption could only be solved by a new generation of politicians who are willing to live the promise of “zero tolerance” for corruption, combined with civil society players who are willing to make them account. We need a new generation that is committed in word and deed to an open democracy where power resides with the people and the rule of law is respected.

The role of the judiciary 

A judiciary that is independent and impartial is the bedrock of a democracy and the rule of law. These values are essential in earning and retaining the confidence of the people. These core values were agreed at a meeting of the Judicial Integrity Group held in Bangalore, India, in February 2001, resulting in what is now commonly referred to as the Bangalore Principles of Judicial Conduct.

The building blocks of a judiciary that can effectively fight corruption start with the manner of appointment of judges. This is because the selection of judges may have an adverse bearing on a judiciary that can credibly and effectively fight corruption. Lack of judicial independence is a major obstacle in fighting corruption. We all know that the role of the judiciary is to enforce the law and hold public officials accountable. However, the lack of judicial independence from the executive is one of the root causes of the judiciary’s inability to uphold the law.

The growing phenomenon of cadre deployment – a situation in which the appointment of judges is made purely on political considerations and not merit – undermines the fight against corruption and the rule of law. Appointments of judges based on political considerations are in themselves a form of judicial capture and should be strongly discouraged.

Tragically, we often read of disturbing reports in which chief justices conveniently empanel “suitable” justices who can deliver verdicts that are consistent with governments’ preferences. Usually the empanelling violates relevant considerations such as experience, seniority and qualifications. This is a heavy indictment on the independence of the judiciary.

Two years ago, in an unprecedented move, four senior Supreme Court judges in India held a press conference to protest against the manner in which the then Chief Justice of India had constituted benches on various high-profile corruption cases.

The findings of the 2016 Africa Integrity Indicators report produced by Global Integrity, an organisation that promotes transparency and accountability around the world, showed that judicial independence is not guaranteed in about half of the 54 African countries.

Global Integrity data is also used to compile the annual Ibrahim Index of African Governance, a project of the Mo Ibrahim Foundation that collects data for every African country and ranks them according to how well they adhere to principles of good governance.

The Global Integrity study has sought to look into the appointment process of judges in many countries, including in southern Africa, and how that may have a bearing on their decisions, and whether those decisions could bear objective scrutiny. The study also looked at whether there are influences over the judiciary from other branches of government.

The results are in the main unsatisfactory:

The study found that the manner in which judges and other players in the law enforcement sector are appointed does not promote independence from the influence of other branches of the government, especially the executive. It concluded that the appointments of judges, magistrates and prosecutors based on political considerations promote fertile ground for corruption to take root, as these appointees may be beholden to political interests and often take decisions that they consider to not be career limiting.

In Cameroon, for instance, the president chairs the highest judicial body, the Superior Council of Magistracy which, among other things, oversees judicial appointments. In some parts of Africa, the president might have the final say in who gets selected for higher courts. In fact, in several countries in the SADC region the president alone has unfettered powers to appoint the chief justice and president of the Court of Appeal.

Appointments sanctioned by the president of a country tend to be determined by political loyalty rather than merit. When such appointees fill the judiciary, experts argue that the likelihood of a government being held accountable is diminished and the door is left open to all kinds of influence, including political pressure, threats and bribery.

Even when the independence of the judiciary may be formally and legally guaranteed, the risk of interference is still present. In Angola, for example, Judge Joaquim de Abreu Cangato, a long-time official of the ruling party apparently with no judicial background, was appointed in March 2000 to the country’s supreme court, according to a 2016 report by the Committee to Protect Journalists. This was despite the fact that judicial independence is enshrined in the country’s law.

Of the 54 African countries surveyed by Global Integrity, 11% have a “completely independent” judiciary, while 30% are “not completely independent”. Among those found completely independent were Botswana, Cape Verde, Mauritius and South Africa. However, a study by the University of Cape Town and Bingham Centre of the Rule of Law in the United Kingdom has found many serious gaps in the manner in which judges in Botswana and South Africa are appointed, and expressed concern about the dominance of the executive in the appointment process.

South Africa has a mixed record when it comes to judicial independence. The ruling by the Constitutional Court, the country’s highest judicial body, a few years ago, upholding corruption allegations against the then president, Jacob Zuma, was internationally hailed as a sign of the judiciary’s independence. In words now frequently quoted, the Constitutional Court held that: “The president has failed to uphold, defend and respect the Constitution as the supreme law of the land.” This pronouncement came after the court found that Zuma and his government had failed to comply with the recommendations of the then public protector, Thuli Madonsela, to repay public money spent upgrading the president’s private home.

The executive may get it all wrong

I must mention for completeness that sometimes the executive can get it completely wrong in thinking that its appointees, after being appointed, would serve its personal interest.

South Africa offers one such example. In 2011 Mogoeng Mogoeng, South Africa’s Chief Justice, was appointed by Zuma over then Deputy Chief Justice Dikgang Ernest Moseneke, who was widely viewed by some sections of civil society and the legal community as more experienced and better qualified. Civil society organisations and opposition parties opposed the appointment, claiming that the executive was trying to stifle the independence of the court and possibly skew its decisions in its favour. But as the South African Constitutional Court decision showed, judiciary appointments, even by politicians, do not always tie judges’ hands.

A merit-based appointment process

A merit-based and transparent process of selection of judges has a positive correlation with the judiciary’s ability to effectively fight corruption. It is an essential and critical prerequisite for judicial independence. It necessarily follows that transparency is the key to both judicial independence and accountability.

Transparency entails several factors.

First, judicial accountability is strengthened when judges are appointed on merit using transparent judicial appointment criteria.

It seems incontrovertible that an open and participatory judicial selection system has better prospects of selecting more competent judges. Invariably, judges appointed in such a manner are better placed to administer their judicial functions in a fair and impartial manner. The fact that some judges – notwithstanding the fact that they may not have been appointed based on merit and transparency – have turned out to be independent, should not encourage us to promote a system of selection that is controlled by politicians. That route is fraught with danger and is better avoided, despite the fact that some judges, once appointed, choose their own path.

In the US they say: “You shoot an arrow into a far distant future when you appoint a justice.”

A famous but probably untrue story is told that a former US president was asked by a journalist whether he ever made a mistake. The president said: “Yes, I made two mistakes and both of them are sitting in the Supreme Court.”

The president is reported to have been referring to the appointment of Chief Justice Earl Warren and Justice William Brennan, who turned out to be more liberal than the conservative appointing authority had thought.

In Africa Cape Verde is often cited as an example of a country that observes a merit-based appointment system. The country appoints its judges and magistrates through a selection process based on merit.

In 2007, when many African countries were planning judicial reforms, Transparency International looked at corruption in judicial systems in its annual global corruption report, focusing on political interference and bribery involving court personnel. It recommended greater transparency, fair court processes, training of court officials and greater involvement of the civil society.

The report also emphasised the importance of striking a balance between accountability and independence, adding that “granting judges independence, while subjecting them to effective accountability mechanisms, will deter prosecutorial and police corruption”.

These recommendations form the basis of judicial reform programmes across the continent. Based on the current Africa Integrity Indicators, the continent is making progress, albeit slowly, on judicial independence.

An enabling legal framework

The independence of the judiciary is not all that is required. The judiciary needs an enabling legal framework, which most countries don’t have. Enabling laws that may contribute to an effective anti-corruption legal framework may comprise those that:

  • Criminalise corrupt activities;
  • Enhance transparency in public procurement;
  • Require public officials to regularly declare assets and liabilities;
  • Identify and prevent conflict of interests;
  • Protect whistle-blowers;
  • Enable tracing, seizure, freezing and forfeiture of all illicit earnings from corruption;
  • Improve access to information (allowing citizens to obtain information from the state);
  • Define basic principles for decision-making in public administration (objectivity, impartiality, fairness, proportionality, legality, and the right to appeal); and
  • Have a legal framework that enables public interest litigation.

Experience

It is my experience and that of many colleagues I have spoken to over the years that the reason corruption cases may not be successfully prosecuted is a function of many reasons.

The first has to do with the legal framework that may not optimally promote the sourcing of evidence such as nonexistent or inadequate whistle-blower protection litigation, and inadequate resources, both human and financial, of the authorities charged with investigations, leading to poor investigations and poor evidence. Sometimes the legal framework may not enable tracing of tainted property or forfeiture thereof. Some jurisdictions allow plea bargaining while others don’t.

In many instances accused persons are acquitted due to lack of sufficient evidence on account of poor investigations. Some judges have spoken of reluctant or demotivated prosecutors who do not do a good job, often tempting the judge to insist that certain persons not listed as witnesses be called as they may shed more light in the case. This route, though, is fraught with challenges, as it may cast the judge as a prosecutor and therefore not impartial.

Conclusion

In conclusion, it is important for members of parliament to pay attention to passing laws that can aid in fighting corruption. We need laws that protect whistle-blowers, laws on freedom of information, laws on declaration of assets and liabilities, laws on conflict of interests, and laws on public interest litigation – where people other than those directly involved (concerned members of the public) can file a suit on behalf of the public.

The judiciary has a sacred duty to adjudicate over corruption cases fairly, impartially and without fear or favour. This requires knowledge, competence and judicial courage, a courage and integrity grounded on the oath of office that should see the courts applying the law equally without regard for the status or position of those charged with corruption.

We must remember that independent institutions that operate with integrity are in the interest of every one of us. If as a politician you don’t work hard to ensure establishment of independent institutions, what guarantee do you have that your opponents, once in the same privileged position as you, will not use the institution against you?

It is a matter of grave concern that many of us who often take oaths to uphold the constitution, hardly do so in practice. Quite often, many of us, soon after taking the prescribed oath, forget what that oath enjoins us to do.

We need to commit to doing the right things for our countries. We must do all we can to assist every institution to effectively fight corruption. Judiciaries are temples of justice to which the oppressed, those unduly harassed, those discriminated against, run for protection. You do not want to run to the temple of justice and find that it is run by the clueless or your opponents.

Lastly, on the question of political will, I must say there are times when, in a moment of deep reflection, I wish our leaders could listen to the trees as they sway in the wind! DM/MC

The Honourable Justice Professor Oagile Bethuel Key Dingake is a former judge of the High Court in Botswana and currently Justice of the Supreme and National Courts of Papua New Guinea and the Court of Appeal of Seychelles.

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