By Matthew Ayibakuro
It has been just over three weeks since South Africa’s President Jacob Zuma survived an impeachment vote in the country’s National Assembly. This followed the ruling of the Constitutional Court that he had violated the constitution by failing to repay public money spent on his private residence in Nkandla.
Like David Cameron surviving calls for his resignation following the Panama Papers scandal in the British parliament, it was safe to reckon that Zuma might have survived this. That was until yesterday, when the country’s High Court declared that he should be charged with 783 counts of alleged corruption, fraud and racketeering in connection with a £4.4 billion arms deal signed when Zuma was deputy president in 1999. The charges were dropped by the National Prosecuting Authority (NPA) just weeks before the 2009 election in which Jacob Zuma emerged president.
Whilst awaiting the decision of the NPA on whether or not to reinstate the charges following the decision of the High Court, it is important to highlight yet another significant lesson to be learnt from the Jacob Zuma corruption case, and indeed the anti-corruption regime in South Africa.
Constitutional Institutions and Principles are Pivotal
Following the relative success stories of Singapore’s Corrupt Practices Investigation Bureau (CPIB) and the more prominent Independent Commission Against Corruption (ICAC) in Hong Kong, the model mechanism for dealing with corruption in the last couple of decades has been the establishment of specialised anti-corruption agencies charged with fighting corruption in their various countries. The United Nation Convention Against Corruption (UNCAC) makes the establishment of such specialised anti-corruption agencies obligatory for state parties in Articles 6 and 36 of the Convention.
In response to this, anti-corruption institutions have cropped up in unprecedented numbers in countries all over the continent, albeit to to obvious limited effect. The establishment of these institutions has been important in creating the impression that these countries are taking specific action against corruption, whilst simultaneously fulfilling the expectations of international donors, institutions and partners. The reality on the ground has however shown that these institutions have achieved very little in terms of dealing with corruption. Even countries like Nigeria that have done one better by creating multiple institutions in this regard has shown little signs of significantly reducing corruption.
After years of relative failures, possible explanations proffered include the lack of attention for local circumstances in promoting this global model of institutions, the inadequacy of requisite infrastructure, deficit in capability of anti-corruption personnel and more importantly political interference in the work of these institutions.
The issue of political interference has featured prominently in most countries, prompting the cliche call for political will in the fight against corruption. The Executive branch in particular has been known to use these institutions to witch-hunt political opponents whilst simultaneously shielding their corrupt supporters from prosecution. In most countries, the performance of anti-corruption institutions has become only as long as the foot of the head of the Executive.
More than anything else, this shows that dealing with corruption goes beyond just the establishment of specialised anti-corruption institutions. It requires other supporting democratic institutions and frameworks without which these institutions cannot operate successfully. And for any country that is really serious about dealing with corruption, these institutions and their independence in particular should be constitutionally guaranteed. Issues like the appointment and tenure of members of these institutions and their financing need to be guaranteed in the constitution to give these institutions any chance of operating independently and successfully.
The South Africa Model
South Africa provides a good model in this regard. Chapter 9 of the Constitution establishes not only the office of the Public Prosecutor, but also for other important state institutions to support constitutional democracy like the Human Rights Commission, the Commission for Gender Equality and the office of the Auditor-General.
Considering the broad range of desperate steps taken by Jacob Zuma to shield himself in the light of the Nkandla scandal, it is difficult to see how the Public Prosecutor would have pursued the case against the President as she did without the all-important backing provided by the constitution. Recent efforts by the Senate in Nigeria to amend the Code of Conduct Act for the specific purpose of assisting the Senate President in an ongoing corruption case shows just how vulnerable these institutions are to political manipulation and restates the importance of providing constitutional backing for anti-corruption institutions and efforts generally.
In the face of overwhelming emphasis on institutions in the fight against corruption and in the overall pursuance of good governance, experience has shown the futility in expecting corrupt politicians and political systems to create independent and effective transparency and accountability institutions. Perhaps the emphasis should de-emphasise seeking political will to fight corruption and rather concentrate on insulating these institutions from any form of influence from political will in the first place, at least until the point when the political systems in most countries are entrenched in positive values and therefore dependable.
Providing constitutional backing for these institutions might not, by itself, provide a final solution to the challenge of dealing with corruption, but it will at least give the widely-spreading anti-corruption institutions a fighting chance against entrenched grand corruption prevalent in most countries.