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.
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.
By Matthew Ayibakuro
When Jim O’Neill coined the term “BRIC” in 2001, many would not have foreseen the word becoming anything beyond a witty-sounding macro economic term destined to be cited in academic papers and make conference speakers sound erudite. However about a decade and a half later, the countries comprised in the acronym – Brazil, Russia, India and China – now referred to as BRICS following the inclusion of South Africa in 2010 have seized the opportunity provided by the coinage of the term to pursue their individual and collective economic and political objectives.
The numbers reveal why the BRICS are important enough to occasion O’Neill’s prediction that they would become the economic powers of the 21st Century. Between them, these countries boast 42 percent of the world’s population, 26 percent of its’s land territory and 27 percent of global GDP. The potential economic benefits of cooperation amongst these countries are enormous, not just for the BRICS, but also for the global economy. In this respect, the agreement by the BRICS to create a New Development Bank following their summit in Brazil in 2014 was of significant note for developing and developed countries alike. There are also political implications of cooperation amongst BRICS. Two out of the five permanent members of the UN Security Council – Russia and China – are BRICS countries and the group has engaged in the discussion of issues like the Libyan crisis and issues relating to the Iran nuclear situation at its summits.
But what about Africa? How should countries on the continent act and react to the emergence and policies of the BRICS? Should they even be concerned at all?
Perhaps, the starting point should be considering the position and role of the only African country in the group. Since joining the group in 2010, South Africa has significantly grown the size of its bilateral trade with other BRICS countries, with China leading the way. This is however attributable to South Africa’s membership of the group and not a result of a particular policy on development cooperation with an African country or countries by the BRICS.
Like I noted in my last blog, it would appear that in this case too, countries in Africa are content playing a passive role, rather than taking proactive steps to seize the opportunity provided by the BRIC countries as an emerging alternative to the established global economic order that has failed perennially to genuinely promote growth on the continent.
Two decades after the formation of the World Trade Organisation (WTO) and about 15 years after the much-celebrated Doha round of negotiations, it is crystal clear that the WTO has failed woefully to achieve the purposes for its formation, at least on the part of developing countries. The unfair imbalance in world trade that prompted anti-globalisation protests that culminated in the formation of the WTO, amongst other measures remain entrenched and continue to perpetuate a global trade system which completely sidelines developing countries in favour of the economic and political interests of global powers.
In the light of this, it would be expected that countries in Africa would embrace, without prompting, any alternative system, like that provided by the BRICS to further their development goals. It is curious to find that African leaders like President Buhari of Nigeria attended the G7 summit in Germany with a sizeable delegation to ‘solicit the sympathy’ of leaders there, whereas there was hardly even negligible media coverage of the BRICS summit which took place in Russia just a few weeks later.
No matter how much aid is given to African countries or what piecemeal trade incentives are included in bilateral trade deals between countries on the continent and globals powers like EU countries and the US, without fundamental changes to the global economic system, no significant development that has the potential to breach the massive gulf between developing and developed countries can be achieved.
Although, the BRICS are not looking at expanding their membership anytime soon, countries in Africa should be willing and ready to participate in such expansion when it does happen. In the meantime, they should look to take advantage of the BRICS New Development Bank when it becomes fully operational.
Also, in addition to the prospects for trade and development cooperation, countries in Africa can learn valuable lessons and gain insights from the fact that some of the BRICS countries, with China being the most outstanding case, have achieved unprecedented levels of growth by adopting alternative models of development, distinct from the predominant liberal economy model promoted and thrust upon African countries by the west with negligible results over the years.
A central theme of Paul Collier’s book, The Bottom Billion discusses how most countries in Africa were left behind by the boat of development that was responsible for the growth of most erstwhile poor countries especially in Asia decades ago. The fact remains that every couple of decades, major economic events around the globe occur which have the potential of tilting the world economy in favour of certain regions or countries with particular attributes. These may ostentatious events like a recession or subtle like the witty naming of a group of countries as BRICS or MINT by a clairvoyant economist.
Taking advantage of these situations require good use of intellect, foresight and proactive action, and in the current state of global relations, countries in Africa must be ready to take advantage of such situations to stand any chance of achieving development that will lifts it population out of poverty.