Robert Barrington, Professor of Anti-Corruption Practice at the Centre for the Study of Corruption, examines the role of lawyers in facilitating global corruption in the light of the Pandora Papers. A version of this blog was first published on law.com, following a letter discussing how ‘Britain is damaged by the provision of legal services to dictators’ in the Financial Times.
In the past two years, report after report – from international bodies like the OECD, domestic governments like the U.K. and non-profits like Transparency International – have expressed concerns about lawyers facilitating corruption as ‘professional enablers’. Their message has been reinforced – and evidenced – by the insight into the work of leading law firms granted by the Panama Papers, the Paradise Papers and, most recently, the Pandora Papers. Yet only a generation ago, lawyers were seen as champions in the fight against corruption.
However that change has come to pass, it is a problem. Society needs lawyers to be respected as impartial upholders of the rule of law. If lawyers are perceived as putting the interests of their clients, and their ability to earn fees, distinctly and regularly above the interests of justice, public and governmental trust in the system begins to break down.
This is not about the small number of lawyers and firms who deliberately break the law. They are doing wrong, and should be sanctioned. More problematic is the perception that ‘professional enabling’ is widespread among senior lawyers and their top-flight firms. It consists of exploiting loopholes, skirting the fringes of legality, and often just offering standard legal services – but all on behalf of corrupt oligarchs and kleptocrats.
The services are myriad. Sometimes, specially designed for the world’s corrupt elite: reputation laundering, setting up complex webs of shell companies to disguise identities and financial flows, litigating against journalists who may make uncomfortable allegations against their clients. Note that none of this is illegal – these are merely specialist services provided to people of dubious reputation.
Then there are standard legal services. Many of the world’s corrupt elite run large businesses based on state monopolies in their own countries, which expand into overseas M&A or listings – all of which requires legal services. If an oligarch corruptly obtained a privatised state company, but then runs it cleanly, while at the same time using his wealth to prop up a corrupt presidential crony, where precisely is the corruption or the illegality? And if there are only distant and unsubstantiated rumours, they may seem like a very reasonable client to take on.
Much of the focus on professional enablers has arisen from the world’s increased attention to money laundering. But many of those regulations do not apply to the legal profession, and there is an important question here about the legality of the funds. If a kleptocrat has so captured the state that the judiciary and laws are bent to his will, how likely is a conviction?
You can see the problem. Lawyers in major financial centres feel they can legitimately take on clients who have not been convicted in their country of origin. Yet this opens the doors for corrupt oligarchs and kleptocrats to use legal services to cleanse their reputations and put their money in safe havens.
In rare circumstances a kleptocrat is caught out – for example, by being served an Unexplained Wealth Order in the UK. A top legal team will then be at hand. Never mind the likelihood that the kleptocrat is a serial human rights abuser and the money has been misappropriated: everyone surely has a right to a legal team.
As you would expect, the lawyers who act for oligarchs and kleptocrats have a well-honed defence. In fact, three defences: access to justice; innocent until proven guilty; and equality before the law. These are important principles and we neglect them at our peril. But life is not quite that simple. These principles were designed to protect the disadvantaged and downtrodden; they are now also used to protect those who are highly corrupt.
This minefield of legal ethics, which draws its legitimacy from another age, is not fit for purpose in the globalised world. Justice for the overseas kleptocrat in the UK or US may represent a gross injustice to the victims of their corruption back home. How do we relate that to access for justice?
Some of this is not new. Murderers have always needed lawyers to defend them, who have been duly criticised. A mafia boss has always been able to hire a top firm when the cops make an arrest.
Two key things have changed. First, the scene has become much more global. Law firms, with franchises or offices in multiple jurisdictions, must weigh up their reputations and business prospects in multiple markets, not just at home. Taking the moral high ground in New York or London may lead to loss of business in Dubai or Hong Kong. Likewise their clients come from new markets – places like Azerbaijan, from where it would have been inconceivable that large funds would flow into the world’s major financial centres thirty years ago.
Secondly, we all have a much deeper understanding of the nature of kleptocracy and oligarchs and misappropriation of state assets. It is much harder to turn a blind eye and plausibly suggest that vast assets from Equatorial Guinea should be treated on a par with entrepreneurial wealth from Silicon valley.
There are two options to improve the situation. Option one is simple. Laws and regulations should be tightened and enforced, to reign in the worst behaviour, including some which is not currently not illegal.
Option two is to re-invigorate the basis on which the legal profession has been revered for generations: ethical judgement. To start this process, the legal profession needs to accept that there is a problem; but at present there is denial, and merely a tired recycling of those old defences.
However, change can come from within. Junior lawyers who have not yet been forced to make the choice between integrity and a lucrative client; anti-corruption professionals in public and private sector; lawyers in enforcement agencies and parliaments.
They are all members of their industry associations, and could stimulate a review of how the long-standing principles of justice can be used to reinforce rather than undermine the rule of law.
According to the 2018 African Union Commission Report, Africa loses USD$60 billion each year due to corruption and illicit financial flows. In this blog post, Prof. Hajer Gueldich, Professor in Law at the University of Carthage, Tunisia, examines the African Union’s approach to tackling corruption through law and policy.
The great paradox of the African continent lies in the fact that despite its natural resources, Africa is among the poorest areas in the world. Among the endogenous and systemic factors that continue to hamper Africa’s development is corruption. Corruption weakens political and judicial institutions and undermines their credibility. It affects all domains and all levels of society: from the small trader to the top of the state, including civil servants in public administrations. All this shows that corruption is a scourge against which the continent must act and react, in terms of prevention, detection, protection, and punishment.
The African Union Convention on Preventing and Combating Corruption Convention was adopted in Maputo on July 11th, 2003 by 55 countries in Africa, and entered into force on 5th August, 2006. It aims to promote coordination and harmonisation of policies and legislation on corruption. It is also designed to facilitate and regulate cooperation among State Parties to ensure the effectiveness of measures and actions to prevent, detect, punish and eradicate corruption. The Convention provides for the establishment of the African Union Advisory Board on Corruption (AUABC). This board was created on 26th May 2009 as required by Article 22 (1) of The Convention. It is the sole continental organisation mandated by the African Union to deal with corruption and related issues in Africa.
The main mandate of the Board is to promote and encourage the adoption of measures and actions by member States to prevent, detect, punish, and eradicate corruption and related offenses in Africa as well as to follow up on the application of those measures and submit regular reports to the Executive Council of the African Union on the progress made by each member State in complying with the provisions of the Convention.
Africa’s anti-corruption approach
In order to operationalise the provisions of the Convention, the AU and its institutions have devised a number of principles to improve the situation across the continent especially in the public sector. The AU approach, based on the convention, covers a wide range of areas including recruitment, code of conduct, finances, procurement and so on.
Generally, member States are required to set up, make operational and strengthen the authorities or agencies responsible for combating corruption both in the public and private sectors.
Recruitments in the public sector must be done on the basis of merit, transparency and equality. Furthermore, all public officials are required to declare their assets when they first take up their duties as well as during and at the end of their mandate.
The AU also emphasizes the need to introduce codes of conduct in relation to public offices. In practice, this could be done by the establishment of a committee or a body responsible for drawing up such a code of conduct and ensuring the application of this code. The body would also be responsible for raising awareness and training public officials on ethics within the public service. The code could go further by requiring States to publish information, in particular through generating periodic reports on the risks of corruption within the public administration.
The AU approach also focuses on good management of public finances, and transparency and efficiency in public procurement. States are enjoined to adopt legislative and other measures to make operational and strengthen internal systems of accounting, auditing and monitoring with regard in particular to public revenues, customs and tax revenues, rental expenditure and procedure, procurement, and management of public goods and services. The approach also extends to transparency in the funding of political parties. The convention prohibits the use of funds acquired through illegal and corrupt practices to finance political parties.
The convention also covers the private sector. Member States are required to adopt legislative and other measures to prevent acts of corruption and related offenses committed in the private sector and by agents of this sector. This is to discourage and prevent the widespread corporate practice of paying bribes to obtain contracts from officials. One important suggestion in this area is for the African Union to put in place a mechanism at the continental level to deal with corruption in the private sector. Currently most of the cases implicating corruption in the private sector are often brought at the International Centre for Settlement of Investment Disputes.
On a final note, close cooperation between African states would be required to make the laudable provisions of the Convention effective. This would include cooperation in investigating corruption and in the extradition of implicated individuals. Member States would especially need to strengthen the legal framework in their domestic constitutions and roles should also be created for the media and civil society in monitoring corruption.
The higher education sector in Africa is blighted by several varieties of corruption, relating to grading, access to education, and involving various forms of influence ranging from gift-giving to sextortion. In this blog post, Dr Cristiano D’Orsi, Senior Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL) at the University of Johannesburg, examines whether these practices have roots in traditional culture, and also highlights some innovative actions that are being taken around the continent.
One of the most controversial aspects of the world higher education systems is the role that ‘merit’ plays and whether (and how much) it is sacrificed to ‘corruption’. First, we have to agree whether there are African concepts of merit and corruption that are shared by the 54 sovereign African countries and applicable to higher education. The 2003 AU Convention on Preventing and Combating Corruption represents a significant step in the efforts to develop continental standards to counteract the systemic corruption across Africa. The acts listed at Article 4, at large, can be also applicable to higher education while Article 1 defines a public official. Similar definitions are also provided by the 2003 UN Convention against Corruption (UNCAC) that has been widely ratified in Africa, with the exception of Eritrea and Somalia. However, neither of these two instruments explicitly targets higher education in any of its articles.
Difficulties in defining ‘merit’
Merit is not easy to define. UNCAC mentions it just once (Article 7 on Public Sector) without any further explanation while the AU Convention remains silent on it. Hence, the applicability of the principle of merit has historically been an argumentative topic. Central to the debate – between liberals (proponents) and egalitarians (critics) of meritocracy – is the notion of ‘deservingness’ explaining that individuals should obtain only what they deserve. Against this backdrop, deservingness, or reward, is dependent on one or more among contribution, effort, and compensation; this last requiring proportionality of reward and cost. Additionally, African higher education institutions and disciplines are not neutral, emerging as structures and cultures over the years. It is easy to agree with Transparency International when it says that corruption is endemic in most universities in Africa. However, the acts representing corruption are not always accepted as such in Africa and can be justified in various capacities.
Role of Ubuntu
Ubuntu is an ancient African moral theory that has received the attentions of myriads of scholars; both African and non-African and may play an important role. Accordingly, Broodryk, defines Ubuntu as “a comprehensive, ancient worldview which pursues primary values of intense humanness, caring, sharing and compassion, and associated values, ensuring a happy and quality community life in a family spirit or atmosphere” (Broodryk, 2005: 4 ).
This definition shows that Ubuntu advocates for the common good of the public. However, the common good in question here is different from the western notion of common good, which emphasizes freedom and personal autonomy. It is a notion of common good that sees human life as communalistic and inter-connected. In this sense, no individual within the ethic of Ubuntu discriminates, disrespects or acts dishonestly while discharging public service. Instead, civil servants show respect and honesty.
Overall, Ubuntu considers human action by the level at which it affects the life of the public. Ubuntu advocates for human behaviour which bring harmonious living, and to that extent, produces happiness to the public (Shutte, 2009: 97). This by extension means that individuals are treated equally. Nepotism on the other hand, is the act of favouring a member of one’s family in the distribution of resources at the expense of others. Going by this, there is a need to examine whether it is best to practice nepotism or whether, within the Ubuntu ethical system, the best result would be produced if civil servants favour their family members in the distribution of government resources at the expense of others.
Practically, the word ‘nepotism’ has already implicated itself and therefore falls short of Ubuntu. Ubuntu demands the promotion of the happiness of everyone in the community. Where family members are preferred against others, the happiness produced will be limited compared to the pain it will produce in the community since the community is always bigger than a particular family. Application of Ubuntu in this regard will throw things open to the best qualified, so that it will be clear from all indications that there were no traces of bias. It is with this attitude that the community can begin to experience harmonious living. What this shows is that Ubuntu and nepotism cannot be proper partners. They contradict one another.
Contribution of the extended family system to nepotism
The socio-cultural structure in Africa has its origin in tribal and kinship relations. These tribal and extended family ties constitute the basic institutions, which shape the individual’s social values and norms. These values and norms encourage nepotism in African societies, encouraging individuals to fulfil their responsibilities towards their family.
Tribal systems require strong commitment from individuals towards their tribes, which allows nepotism if it concerns relatives. This observation confirms the fact that there is an existential link between the extended family system and nepotism. The fact that this practice is common in Africa goes a long way to show that the kinship bond is strong in comparison to other parts of the world. Does this mean that traditional African society promoting such practice is immoral? This may be how it appears but to draw such a conclusion would amount to imposing modern systems of moral evaluation on a society where there is no basis for such imposition.
Traditional African societies in which the language of nepotism is alien see nothing wrong with a civil servant helping his relatives, friends and in-laws when he is in a position to do so. The reason for this is clear: the peoples’ culture requires them to care for relatives in need and to be their brothers’ keepers. No traditional African would be ashamed to be caught helping a relative, a friend or an in-law. Should the person be asked to explain his preference for his relatives over others in matters of public employment the reply would be: “it is our culture, is there anything wrong in giving job to my relatives or to my in-laws?”
It is this traditional African interpretation of the extended family system that is imported wholesale into modern society without taking cognisance of the differences between both societies. Thus, those who are involved in the misconduct of nepotism, their victim (which is the common good) and those who benefit from this misconduct, may see nothing wrong with it or try to downplay its gravity because they think that it is a part of he society. Consequently, instead of coming out to oppose nepotism, what most Africans do is to wait for their turn; when their ally occupies the same position and favours them in the same proportion.
The idea that some African cultural practices and values have elements favourable for the development and spread of corruption is real. This occurs in the African customary exchanges of gifts. In African culture “there are conventions which demand or expect that a person shows appreciation for favours done to him” (Okeke, 2002:131). Gift-giving in the contemporary period is no longer for appreciation alone, but also for expectation due to the ulterior motives that some individuals now give this practice.
Sometimes gift-giving seems to be the same thing as bribery, but there is a thin line separating the two. Gift-giving and bribery are similar in some ways, as both contribute to corruption. In both cases, something is given from one person to the other to make the person take a requested action. This is to say, there is a giver and a receiver in both gift-giving and bribery, which may come in the form of cash or kind. However, one thing that is common in both bribery and gift-giving is, if disappointment comes along the line, neither party involved will have the courage to sue the other in a law court for a refund.
In African traditional society, the rulers were sometimes obliged to give gifts to the people. This was done as a sign of acknowledgement to the community for their support to the ruler. Gift-giving, originally an innocent practice in traditional African society, has become in modern times the ember stoking corruption. In order words, in this modern period, gift-giving encourages corruption, as givers do so with ulterior motives, unlike in the traditional society when people gave for gratitude.
It is unfair to use corruption as a parameter for getting what one is qualified to have. People give because they do not have an alternative, otherwise they may not get what they want. They also demand because they give, and corruption becomes a vicious circle at the expense of the society. In sum, gift-giving in the modern African society, especially in the public sector, encourages corruption because of the ulterior motives for giving in a situation of scarce resources.
“Tell the truth” Project
“Tell the Truth”, a pilot project in the universities of several African countries (South Africa included), is trying to overcome the culture of silence on issues related to bribery, abuse of resources, and sex-for-grades. All stakeholders on campus – students, professors, and administrative staff – can text a free short code through mobile phones and then be called back by an operator who gathers details of the problem.
Subsequently, university administration and student representatives discuss the information periodically, and both sides agree on the way forward. On certain issues, whistleblowers have their identities protected to avoid retaliation. Universities’ political and corporate liaisons may create conflicts of interest and undermine their autonomy, academic freedom, and impartiality. In this framework, several African countries have acted more effectively than other countries, because they have a clearer vision of the phenomenon and make more efforts to curb it.
Domestic and regional efforts to thwart corruption
Rwanda adopted an anti-corruption policy in June 2012 and, previously, the Law no 23/2003 Related to the Punishment of Corruption and Related Offences. The Prevention and Combatting of Corrupt Activities Act is the key statute on corruption in South Africa. It provides for the general offence of corruption as well as specific offences. It also provides for investigative measures, as well as preventative measures in the fight against corruption. In Southern Africa, there is also the 2001 SADC Protocol against Corruption providing for the prevention, detection, and punishment of corruption as well as for cooperation between states. It covers corruption in both the public and private sectors. The Protocol recognises that demonstrable political will and leadership are essential in the fight against corruption. It affirms the need to garner public support for initiatives to combat corruption. Therefore, we should reflect on the efficacy of the corresponding legal instruments in fighting academic corruption in higher education in Africa, whether and in what measure they are implemented by the African stakeholders, not only individual countries but also sub-regional and regional organisations. For example, the AU regularly organises “anti-corruption dialogues” that, among their goals, discuss how enhance transparency and fight corruption through efficient judicial systems.
Amid efforts to reduce corruption in higher education in Africa, anti-corruption experts are urging improvements in the governance and leadership of public universities. According to a former coordinator of the World Bank’s tertiary education programme, African governments should establish a regulatory framework for tertiary education systems, with adequate provisions to punish corrupt behaviour at all levels. He suggests that university senates, independent financial review boards and national university accreditation boards should provide leadership in fighting corruption.
In order to operate in a more transparent manner, African universities are encouraged to ensure that funds generated through corruption are not donated or invested in higher education. There have been cases in several countries (Libya and Equatorial Guinea) where money embezzled from public institutions had been channelled to universities.
Taking into account that corruption is endemic in most universities in Africa, experts urge a crackdown on academic fraud that ranges from soft marking, copying from other students and cheating during examinations to impersonation. Universities should also monitor and punish cases of falsifying academic records, paying for grades with gifts, money and sexual favours, terrorising examiners and assaulting invigilators. Taken together, those outcomes undermine educational opportunities for students and produce graduates who are less equipped to thrive in future careers.
Rights over land are one of the most fundamental property rights, but remain severely contested in many parts of Africa. In this post, Robert Home, Emeritus Professor in Land Management, Anglia Ruskin University, UK, details the impact of colonial legacies and how they affect patterns of corruption today.
The roots of corruption in land matters lie in Africa’s geography and history. It is a continent with a large land mass and low population density. In the last fifty years, its population has grown five times to reach over a billion people with about a thousand distinct languages (some countries have over twenty ethnic groups). It has the most nations in relation to land area of any continent, with colonial boundaries, legal systems, and governance following the Uti possedetis principle (i.e., what you have, you keep).
The former British colonies have a colonial legacy of three land tenure types created by the so-called ‘dual mandate’. State land (or crown land claimed as terra nullius)could be ‘set aside’ for such public purposes as townships, forestry, national parks, and mineral extraction. Private property (under freehold or long leasehold) had a government guarantee of title under the so-called Torrens system, controlled by lands and survey departments. Finally, under customary/tribal land tenure land belonged not to individuals but to the community, family or lineage; this still covers the majority of the African land area, and in colonial days were formerly held ‘in trust’, with no private ownership. Continuing colonial practices in land matters is why the postcolonial state has sometimes been called an ‘enemy of the people’ for encouraging inequalities.
Current land issues in Africa include ‘land grabbing’ and mineral extraction by foreign investors, conflicts, evictions and displacement, fraudulent title transfer, and the potential of blockchain for property transactions (which may increase evictions of occupiers). Land has been the subject of several books. In Ati Onama’s The Politics of Property Rights Institutions in Africa (2010), he argues that the level of property rights security that leaders prefer depends on how they use land, revealing why some leaders prefer an environment of insecure rights even as land prices increase. Laura Routley’s Negotiating Corruption: Hybridity NGOs and the Nigerian State (2015) argues that NGOs act as intermediaries between the local and the international, and between the state and the population.
The African Union Commission, UNECA, and the African Development Bank sponsor the African Land Policy Centre, following the African Declaration on Land (2009), which recognises member-state sovereignty and equality, and its third African Land Policy Conference in Abidjan (2019) was on the theme of “Winning the fight against corruption in the land sector”. Its land policy guidelines are, however, not a normative framework nor do they seek to impose land policy in specific country situations.
The jurisprudence of the African Court/Commission of Human and Political Rights is limited in land matters (Article 14) and suffers from poor enforcement. The Mbiankeu case (Cameroon) supports the right to private property and government title guarantee. Cases defending the rights of indigenous people in Kenya (particularly the Endorois, Ogiek, Nubian community) have succeeded, but governments are reluctant to act on the judgments, accusing the indigenous groups of being ‘selfish’ minorities.
Three country case studies (of Africa’s most important economies) show many corrupt practices. Nigeria (one of the most corrupt nations in the world, according to Transparency International) has inherited colonial governance structures, conferring federal control of mineral rights, and state control of land use rights, with anti-corruption laws in place but no consequences for violations. Kenya has two separate land registers carried over from colonial days: central (for private property) and county (for former trust lands). Abuses include land titles being transferred centrally without knowledge of occupiers, boundary adjustments that enlarge plots without knowledge of neighbours, local authority land transferred without knowledge of local authority, leases re-allocated upon expiry without notifying the existing lessee. The Ndungu Report (2003) identified multiple wrongful land allocations, and it has been estimated that 15% of land is controlled by the families of the four past Presidents. Finally, South Africa has unresolved racial inequalities in land ownership, limited success of land restitution and land reform, and ineffective constitutional guarantees and governance reforms. Abuses there include fraudulent land-grabbing and sales, and evictions.
The UN Sustainable Development Goal 16 is to “promote peaceful and inclusive societies for sustained development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”. It has 12 targets and 23 indicators, which include promotion of the rule of law and access to justice, a substantial reduction in corruption and bribery, inclusive and representative decision-making, and public access to information. Such aspirational goals are far from being realised in Africa.
Other key texts which deal with the issue of corruption in Africa’s land sector include:
Corruption and organised crime often go hand-in-hand. Professor Michèle Olivier, Associate Professor and Chair of Law at Dar Al-Hekma University, describes the nexus between these two phenomena in developing countries through the lens of human trafficking and the illicit wildlife trade, highlighting serious challenges for proponents of anti-corruption.
Transnational crimes are normally committed by transnational organized crime groups. The United Nations Convention against Transnational Organized Crime defines an ‘organised criminal group’ (OCG) as “a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences… in order to obtain, directly or indirectly, a financial or other material benefit”. These groups are in essence businesses like any other, motivated by financial gain and seeking out opportunities with high profits and low risks/costs.
Effective financial management and navigating regulatory/legal frameworks are critical to any business. OCGs and legal business operations share a dependence on financial institutions, quality of governance and the rule of law, or lack thereof. The cost is ultimately paid by the most vulnerable members of the global community, predominantly those in the developing world.
As transnational organised crime networks operate across national borders, understanding of the broader impact of international networks that support these crimes is needed. OCGs make use of legitimate structures and financial institutions to wash the proceeds of their crimes. In developing states, these crimes and corruption are co-dependant, thereby contaminating the entire economy. Transnational crimes typically cannot exist without corruption.
Corruption and good governance
Transnational crimes are enabled by weak governance which allows corruption to flourish. Corruption broadly refers to dishonest behaviour by those in positions of power. It includes the giving or accepting of bribes or inappropriate gifts, double-dealing, under-the-table transactions, manipulating elections, diverting funds, laundering money and defrauding investors.
Weak systems of government are not uncommon in developing states.Weak institutions create an environment for corruption to flourish, leading to poor enforcement, lack of transparency and accountability, and compromised adherence to the rule of law, thus reducing OCGs’ risks and increasing their profits. On the other hand, development – particularly improvements to governance, rule of law, delivery of social services and employment – undermines the strength of OCGs.
Capacity and efficiency in public sector management, accountability, access to information, and transparency are essential to good governance, and help to control corruption.
People trafficking and illegal wildlife trade as examples of transnational crimes
Trafficking in persons is a growing transnational crime with millions of victims, who end up in various modern forms of slavery, forced labour and forced marriages.
Illegal migrants are susceptible to exploitation and violations of their human rights. Often trapped in a cycle of debt that is almost impossible to escape from, their labour goes towards paying off the initial debt associated with the trafficking. Victims are generally unable to afford basic expenses like food, water, shelter, and health care provided by their “employers” or the traffickers, resulting in a continually growing debt. Human trafficking has serious security and economic impacts on individuals, communities and countries. It drains resources and undermines domestic stability and the rule of law.
The surging illegal trade in wildlife trade is fuelled by corruption, weak legislation and enforcement. It includes elephant tusks and rhino horns, exotic pets, food and traditional medicines. Per kilo, the retail revenues for ivory or rhino horn can be equal to or greater than the equivalent amount of cocaine or heroin, yet the legal penalties are considerably more lenient. This trade not only has a disastrous impact on species conservation but also deprives communities of natural resources and much-needed revenue streams.
Illegal wildlife trade often flows through the same corridors used for other types of trafficking, like drugs, arms, and human beings. For a fee, wildlife traffickers can use an established route, which lowers their risk of detection and seizure.
Laundering the proceeds of these crimes is the global shadow financial system. A vast network of banks, intermediaries and secrecy jurisdictions around the world move illicit money, including the proceeds of tax evasion, revenue from organized crime and resources of terrorist organisations. The revenues from transnational crime seldom have any long-term benefit to citizens, communities or economies of developing countries.
Corruption is one of the most significant obstacles to Africa’s future development. Dan Kuwali, Extraordinary Professor of International Law at the University of Pretoria, highlights the factors that allow corruption to flourish in African and presents a ten-point “commend and condemn” strategy for proactive prevention.
Africa is the poorest region of the world and also the only one with poor prospects for the future. Corruption is one of the most significant contributors to the under-development and impoverishment in many African states, as it fuels inequalities, undermines access to public services, scares off investors and discourages further development. Although the African Union (AU) designated 2018 as the year for “winning the fight against corruption”, and considering that corruption is a punishable offence in nearly every country on the continent, Africa is still widely considered as the world’s most corrupt continent. Of the 10 countries considered most corrupt in the world, six are in sub-Saharan Africa. The continent ranks lowest amongst global regions in the Corruption Perceptions Index (CPI). Countries in Africa average 32 out of 100 in their CPI scores (where 0 is most corrupt and 100 least). About one billion people (90%) of the continent’s 1.2 billion strong population live under very or extremely corrupt governments, a rate that exceeds most of the rest of the world. Over $50 billion worth of stolen assets flow out of Africa every year.
Therefore, ending corruption is a top priority for peace, security and prosperity on the continent. The AU Convention on Preventing and Combating Corruption (AUCPCC) was adopted in Maputo, Mozambique on 11 July 2003 and came into force in 2006. The AU has established an Advisory Board on Corruption, which is an organ tasked to advise on, and address the problem of, corruption on the continent. The Board is also mandated to rally for the ratification and implementation of the AUCPCC by member states. To date, the Convention has been ratified by 44 out of the 55 AU Member States, which explains the slow pace of fighting the vice on the continent.
Factors that Promote Corruption
Factors that promote corruption include: greed and opportunity; absence of institutional ethical codes of conduct; lack of effective supervision and oversight mechanisms; outdated policies, procedures and regulations; bureaucratic delays and red-tape in provision of services and delivery of goods; discretionary powers minus accountability; monopoly in provision of services which lead to unabated overpricing as a result of lack of competition; unhealthy competition or peer pressure which lead to living beyond one’s means; organisational culture that tolerates corruption; and lack of effective punitive sanctions and penalties for offenders.The proliferation of alternative currencies may make it easier to transfer and retain funds anonymously and, therefore, more difficult for anti-corruption agencies to trace and seize dirty money. Fast-paced innovations in Internet gaming and software make it easier for criminals to launder funds across jurisdictions without leaving any footprints. A lack of transparency coupled with secrecy leave room for corruption in the defence and security sector.
Challenges in fighting corruption in Africa
Corruption is extremely pervasive in Africa and is a direct consequence of poorly conceived legislation, policies and institutional arrangements that have promoted rent seeking and other forms of opportunism. Some of the obvious obstacles to overcome corruption include:
Corruption is invariably committed by persons in positions of power, making it difficult to prosecute such cases without external interference. Therefore, only the “small fish” are targeted.
The weak tone and tenor of national anti-corruption legislation such as the Nigerian Corrupt Practices and Other Related Offences Act does not scare potential perpetrators. South Africa and Zambia, however, have progressive nomenclatures. The gold standard in nomenclature is the AUCPPC, which clearly declares the continental body’s abhorrence of corruption.
The nonexistence or docility of national systems to promote ethics and integrity where the law is not sufficiently supported by mechanisms that promote integrity and ethical values in order to eradicate moral decadence.
Lack of vigilance of sectoral anti-corruption initiatives where fighting corruption is seen as the responsibility of the anti-corruption authorities alone, and not the citizenry.
Perceived tolerance of anti-corruption by citizens, especially where there is impunity despite credible information from whistleblowers, as citizens may rather turn a blind eye than risk their lives for what they perceived to be futile endeavours.
Arresting corruption in Africa
While there cannot be a one-size fits all approach to combating corruption, the purpose of corruption prevention should be to minimize, as much as possible, its crippling effect on the economy, human rights, national security and social welfare. Corruption prevention requires a robust system to detect and eliminate the causes and conditions of corruption through the development and implementation of appropriate measures for deterrence. Below is a ten-point strategy on how to prevent corruption and mitigate its effects in Africa:
Promote financial probity and professionalism in handling public resources to encourage public involvement in public finance management. Kenya and Tanzania have good examples of legislative and institutional frameworks which promote integrity and transparency at national level. Tanzania and Kenya have entrenched guiding principles for ethical conduct, leadership and integrity.
Enhance transparency and access to information to promote public participation in public finance management in order to increase the responsiveness of public bodies; and provide support to watchdog institutions in their pursuit of all corruption cases.
Promote efficient and effective service delivery by removing bureaucratic bottlenecks which incentivize clients to use kickbacks to cut corners.
Embrace smart technology to encourage arms-length relationships between officials and the public and promote footprints in financial transactions.
Adopt integrity checks (and lifestyle audits) including mandatory declaration of assets for public officers so that their credibility can be assessed, and the probability of corruption reduced.
Empower citizens to hold their governments accountable and encourage whistleblowers in order to build mutual trust between citizens and government.
Inculcate a culture of integrity and honesty to promote ethical conduct, especially among the youth.
End impunity through the promotion law enforcement and an independent judiciary in order to deter potential perpetrators, including use of corporate criminal liability, public interest litigation, civil litigation and asset recovery.
Formulate a commend and condemn policy to provide incentives for ethical conduct, and increase the cost of being corrupt. It is also necessary to pay civil servants adequately to prevent them from supplementing their income in “unofficial” ways.
Ensure continuous monitoring and evaluation of anti-corruption strategies to make sure they can be easily adapted as situations on the ground change.
The fight against corruption is the responsibility of everyone through active participation in the implementation of anti-corruption legislation and strategies, and demanding justice. While law enforcement is a vital component of any effective anti-corruption effort, it may be short-term, hence the need for proactive prevention strategies which commend merit and condemn mediocrity. This transformation may help to spur economic development on the continent of Africa, which is the poorest and least peaceful continent in the world.
Dan Kuwali also holds the role of Adjunct Professor at the Malawi University of Science and Technology and is a Fellow at the Harvard Kennedy School of Government as well as the United States Army War College.
In this post, Dr Femi Amao (Reader in Law, University of Sussex), Dr Eki Omorogbe (University of Leicester, Lecturer & founder and co-chair of the International Law and Policy in Africa Network (ILPAN)) and Dr Adaeze Okoye (Principal Lecturer, University of Brighton) introduce a forthcoming blog series which draws on a June 2021 webinar organised jointly by the International Law and Policy in Africa Network and the African Union Law Research Network. The focus of the webinar was on combatting corruption in the context of Africa, the African Union (AU) and its member states.
Corruption is not unique to Africa and the African Union, however recent findings of widespread institutional corruption by the audit of the African Commission initiated by the Executive Council, play into the stereotype of high levels of corruption in the continent. Similar allegations were levelled against the African Union’s (AU) African Peer Review Mechanism in 2020. This is against the backdrop of endemic corruption in member states of the AU. The recent trial of the former president of South Africa, Jacob Zuma, on corruption-related allegations is an example of the ongoing problem.
The problem of corruption has significant implications for socio-political and economic development and for human rights. Indeed, it is because of corruption’s extensive impact that some scholars – such as Truelove and Grossman – have suggested that it should be characterised as a violation of human rights.This is because corruption perpetuates discrimination, prevents the full realization of human development by negatively affecting economic, social and cultural rights and leads to authoritarian and repressive behaviour that impedes civil and political rights, distorts the provision of social services and hampers economic development. These issues are causes for concern for stakeholders of the AU.
The impact of corruption on the socio-political and economic development in Africa requires better understanding and analysis in order to be able to develop strategic and effective solutions to the problem. There is evidence of member states’ attempts to address the issue of corruption in policies and legislation. However, as noted by contributors at the webinar, there are very few success stories in this respect. This is largely because of the involvement of government institutions in corrupt practices across the continent.
This joint webinar took up the important task of exploring these issues from the African perspective. For instance, Kuwali, in his contribution, advocates what he described as a ‘commend and condemn’ strategy as a way forward. The strategy is based on a ten-point agenda aimed at correctly identifying the causes of corruption and addressing those causes in strategic ways. Iyi, in his contribution, also suggests taking a unique philosophical and religious perspective in the design and implementation of strategies towards addressing the problem.
Contributors also looked at the issues from a sectoral perspective. As Home notes in his contribution, in which he discusses corruption in the land sector, there are historical, political, social and legal factors that have contributed to the prevailing situation in the continent. Home correctly traces the factors to colonial history, the customary/tribal land tenure system and various foreign interests. These factors need to be taken into account in designing effective responses.
Olivier, in her contribution, focuses on how the issue of corruption plays into illegal trade in wildlife and human trafficking. She examines the impact and effect of the problem and looks at ways in which the AU and member states could deal with the associated problems. D’Orsi’s contribution examines the issue from the Higher Education sector’s perspective. He identifies a range of domestic factors that have played a significant role in shaping the problem of corruption and the potentials of contextualisation.
As some of the contributors note, the AU has recognised the need for and importance of a regional strategy to combat corruption. To this end, the African Union Convention on Preventing and Combating Corruption was adopted in 2003 and it came into effect in 2006. The Convention could be regarded as a consensus on what African states should do in the areas of prevention of corruption, criminalisation, international cooperation and asset recovery. As Hajer Gueldich correctly points out, implementation and compliance with the instrument by member States has been weak. It is therefore imperative to identify new ways to improve implementation and compliance.
In the current Covid 19 climate, corruption has also become a major factor in Covid contracts and procurement globally. It is therefore not surprising that corruption has affected African states’ response. Consequently, the webinar also addressed corruption issues in the context of Covid 19 responses and how state responses could be improved and strengthened.
We aim to start a serious conversation on solutions to the problem of corruption from the African perspective, building on various ideas suggested at the event. As our conversations continue, we hope to refine and develop these suggestions, to form the basis for major policy proposals from the African Union Law Research Network and International Law and Policy in Africa Network.
Luís de Sousa, Research Fellow, Instituto de Ciências Sociais, Universidade de Lisboa (ICS-ULisboa), e-mail: email@example.com
The growth of ACAs
Over the past three decades, and especially after the signing of the United Nations Convention of Corruption (UNCAC), international standards have converged regarding the need to increase specialization and coordination in the field of corruption control in terms of both prevention and containment. One proposed option for doing this was to set up a body, bodies, or persons specialised in overseeing and coordinating the implementation of anti-corruption policies, producing and disseminating knowledge about corruption prevention (article 6, UNCAC), and/or combating corruption through law enforcement (article 36, UNCAC).
François Valérian, member of the International Board of Transparency International, writes about the development, design, remit, and record to-date of France’s nascent anti-corruption agency.
The Agence Française Anti-corruption (French Anti-Corruption Agency, AFA) was created by a 2016 law voted under the then French Finance Minister’s initiative and known as “Sapin II Law”, the major law passed a few years after the Cahuzac scandal which saw a finance minister’s resignation for tax evasion. The AFA is headed by a magistrate appointed by the President of the Republic for a non-renewable six-year term.
The AFA’s missions are of advice and assistance, and of control. The overall goal is to promote a culture and practices of anti-corruption prevention in the economic world, as provided for by the Sapin II law.
Joseph Sinclair, a lawyer, research associate at Spotlight on Corruption, and recent alumnus of Sussex’s Corruption and Governance MA, writes about the recent controversy over Peter Cruddas’ appointment to the Lords and the shortcomings in the criminal laws that govern the purchasing of honours.
Peter Cruddas: Appointment to the Lords & Controversy
In December 2020, the Prime Minister appointed Peter Cruddas to be a Conservative peer in the House of Lords. He is described on the Lords’ website as “a businessperson, philanthropist, and Conservative Party donor and former co-treasurer [of the Conservative Party]”. As a donor, he had given £50,000 to Boris Johnson for his 2019 leadership campaign and in total over £3m to the Conservative Party since 2007 (£1.2m since Boris Johnson became PM) as well as £1.5m to the Vote Leave campaign. Cruddas’ appointment was especially controversial because, after undertaking a vetting process, the House of Lords Appointment Commission had told the PM that they could not support the nominee.