Among the ranks of anti-corruption specialists there’s one insight that enjoys near consensus: the imposition or threat of criminal sanction is not the most effective counter to corruption, particularly corruption that is endemic or systemic. This might surprise the many South Africans who desperately want to see some of their predatory fellow citizens donning orange overalls. The hard truth is that, on its own, it will not have much of an effect on the level of corruption.
For this reason, the national anti-corruption advisory council (Nacac), a body established by the president two years back, proposes that the South African government adopts another growing consensus among anti-corruption activists: put simply, prevention is better than cure. Nacac has proposed the establishment of a new body, the office of public integrity (OPI), whose principal task will be to prevent corruption.
The OPI will assume numerous functions, including the investigation and remedying of systemic corruption. Systemic corruption occurs when acts of corruption in a particular institution are so commonplace that the system of governance and management is deeply flawed. For example, when procurement in a particular institution is persistently corrupted, it’s clear there is some vulnerability in the procurement system.
The OPI will then investigate. It may reveal that the employees have never been trained to run a corruption-resistant procurement system. , The procurement manager has managed to ensure that various firms in which the procurement manager or his family has a financial interest persistently win tenders put out by the manager’s unit. In this case, the OPI finds that employees require training on how to detect conflicts of interest; the evidence of criminal conduct on the part of the manager is referred to the investigating directorate against corruption (Idac), a special unit of the NPA, charged with investigating and prosecuting serious corruption.
There are certainly independence issues undermining the NPA. In particular, we propose that the NPA’s accounting officer function be removed from the director-general of the department of justice and vested in the head of the NPA
This example also demonstrates that systemic corruption almost inevitably involves networks of individual employees. The OPI investigators may find that the procurement manager and the CEO had previously worked together. The investigators may also find that both had been fired from their previous firm for suspected corruption. They will then ask why the background of the CEO was never investigated and why the CEO was the sole decision-maker in the procurement manager’s appointment. The OPI will then instruct the institution to tighten up its appointment processes. And it will refer evidence of criminal conduct on the part of the CEO to Idac. The systemic remedies, which will be binding, will make the system less vulnerable to corruption.
The OPI will take on other preventive functions. For example, public education and mobilisation. It may run a training workshop for procurement officers or for the promotion of ethics; it may devise behaviour-change programmes directed at the public, or at a particular city or province. It will gather and analyse data on corruption, enabling it to identify candidates for systemic investigation. It will advise government on anti-corruption policies. It will co-operate with other public institutions also responsible for important anti-corruption work.
Some of these functions are similar to those already undertaken by the Special Investigating Unit (SIU), thus we propose that the resources and powers of the SIU be transferred to the OPI. This will avoid duplication and enable the OPI to be up and running as soon as the relevant legislation is passed. The SIU has a presence in all the provinces; it has experienced investigators; and it has management services already in place. But it will require additional resources, for example investigators capable of drawing up a criminal docket for reference to the Idac.
We recommend that the OPI be constitutionally protected by inclusion in chapter 9 of the constitution to ensure its independence. We recommend that the OPI be given the power to undertake an investigation on its own initiative, while retaining the president’s right to require an investigation.
There are certainly independence issues undermining the NPA. In particular, we propose that the NPA’s accounting officer function be removed from the director-general of the department of justice and vested in the head of the NPA. The present set-up effectively places administrative control of the organisation in the hands of the NPA, including decisions regarding the hiring of staff and the determination of salary levels.. We’ve also recommended that the responsibility for appointing the head of the NPA be removed from the sole discretion of the president and vested in a carefully constituted selection panel.
However, we don’t believe there is justification for totally severing the link between the prosecuting authority and the executive authority. We can find no other country in which this has been done. Moreover, this proposal will divide skilled and scarce investigative and prosecutorial resources between two public agencies.
Above all, Nacac rejects an anti-corruption strategy that relies on a quixotic proposal to strengthen the prosecutorial function alone. Wherever in the world it occurs, the prosecution of serious corruption is complex and time-consuming, with a low success rate. Essentially, it’s extremely difficult to amass evidence of clandestine conspiracies that will satisfy a criminal standard of proof. But we do believe that criminal justice is important and so we’ve identified proposals precisely directed at strengthening the institutions in the system.
Fighting corruption is a task for all of society and all of government. We are confident our approach harnesses this power, including that of the criminal justice system.
• David Lewis is a Nacac member and former executive director of Corruption Watch
For opinion and analysis consideration, email Opinions@timeslive.co.za
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