By Matthew Ayibakuro
Without a doubt, the biggest news out of the African continent in last couple of days is the decision of South Africa’s Constitutional Court, declaring that the President Jacob Zuma violated the constitution by failing to repay public money spent on his private residence in Nkandla. The lavish improvements which Zuma must now pay for in the coming months include a swimming pool, amphitheatre, visitor centre, cattle enclosure and chicken run, amounting to over $15 million.
With the opposition now calling for the impeachment of Zuma following the decision of the Constitutional Court, it is safe to say that the story of this scandal which has dragged on for some time is not over yet. In the meantime, for those interested in issues of governance, it is imperative to highlight some very significant issues and lessons for the much talked about fight against corruption in South Africa and indeed other countries in the continent. A comparative analysis of the framework for anti-corruption in Nigeria and South Africa shall highlight these issues.
Independence of Anti-Corruption Authorities -Appointment and Removal
The headlines for the decision in Zuma’s case has been mostly about the Constitutional Court and rightly so. The bold decision of the court re-emphasizes the strategic nature of its role in democratic societies. However, the role of the Public Prosecutor should be getting as much or even more acclaim. The Court itself emphasized this point when it noted that the public prosecutor is “the embodiment of a biblical David that the public is, who fights the most powerful and well-resourced Goliath, that impropriety and corruption by government officials are“. This metaphor could not be any more apt considering this case was against the president of the country. Rare as this case is, it is no coincidence considering the independence of the office of the public prosecutor guaranteed under the constitutional and legal framework in South Africa.
Under Article 193 of the South African Constitution, the appointment of the public prosecutor is made by the president on the recommendation of the National Assembly. The latter is required to only recommend persons nominated by a committee of the Assembly proportionally composed of members of all parties represented in the Assembly and approved by 60 percent members. Based on Article 194, The Public Prosecutor can also only be removed on a finding by a committee of the National Assembly establishing grounds of misconduct, incapacity or incompetence. The National Assembly is then required to adopt a resolution supported by at least two thirds of members calling for the removal from office of the public prosecutor.
By comparison, the heads of the two strategic anti-corruption bodies in Nigeria -the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and Other Related Offences Commission (ICPC) – are simply required to be appointed by the President subject to confirmation by Senate. On removal, whilst an address supported by two thirds majority of the Senate is required for the president to remove the head of the ICPC, the head of the EFCC can solely be removed by the president for inability to discharge the functions of his office or for misconduct or if the president is satisfied that it is in the interest of the Commission or the public that he be so removed.
Why This Matters?
In the course of the Nkandla scandal, President Zuma utilized every possible political office and tool that owes him allegiance including the Minister of Police and Parliament, where his party the ANC holds a majority, to exonerate himself. And he probably would have succeeded, but for the courage and persistence of the public prosecutor. The fact that the president plays a rather peripheral role in her appointment and removal offered her the requisite security and therefore independence to carry out her duties without fear of removal or being influenced.
This is a far cry from the situation in Nigeria where the President plays a dominant role in the appointment and removal of heads of anti-corruption authorities and therefore displays very obvious and over-bearing influence over their activities. The fact that prospective and serving presidents in Nigeria have over the years made themselves spokesmen for anti-corruption agencies by promising to prosecute certain individuals or investigate certain issues makes a whole mockery of anti-corruption efforts. In countries that deal with systemic corruption, especially within the executive, the best a chief executive can and should be required to do is guarantee the independence of anti-corruption authorities and allow them do their work.
It may be argued that irrespective of the procedure for appointment and removal of heads of antic-corruption bodies, such individuals can still demonstrate seriousness in investigating and prosecuting corrupt officials and institutions once appointed. While this may be true, it leaves open the question of the fairness and impartiality with which they carry out their functions. This is a question that continues to bedevil the actions of anti-corruption authorities and the overall anti-corruption regime in Nigeria. Even the much acclaimed efforts of Nuhu Ribadu who was head of the EFCC under President Obasanjo were later ridiculed by claims of overwhelming influence by the President leading to selective prosecution of public officials.
It is difficult to envisage any circumstance where any of the numerous anti-corruption bodies in Nigeria will be able to hold a serving president of the country accountable for corruption under the current legal framework, and if we cannot guarantee that everyone is indeed equal before the law in this regard, then anti-corruption efforts in the country will continue in the realm of politics, instead of being about public resources, people, rights and development.
The first lesson from the Zuma case is therefore that granting independence to anti-corruption authorities is a prerequisite for any viable anti-corruption effort. It is time for Nigeria and other countries with similar legal frameworks to amend their laws accordingly.