The public discourse in South Africa sees prosecution as the primary remedy for corruption. But prosecution does not work as well as we would like in complex corruption cases. We need to understand why, and seek other pathways to accountability.
South Africa’s performance on Transparency International’s Corruption Perceptions Index declined from 2009-2018 under Jacob Zuma’s presidency (see chart). There was a slight improvement after measures to bring accountability for corruption, such as the Zondo Commission. Recently, there has again been a downturn – reflecting public perceptions that efforts are faltering.
One reason major corruption cases are hard to prosecute successfully is that corruption is often perpetrated by the most powerful people in society, who are also responsible for upholding the rule of law. According to Dr Abiola Makinwa, an expert on the United Nations’ Financial Accountability, Transparency and Integrity panel: ‘The crimes … that wreak the most havoc on society become the most susceptible to a lack of political will to prosecute.’
There are also problems inherent to the legal system that make serious corruption uniquely difficult to prosecute, even for well-resourced authorities. Jonathan Benton, former head of financial crime at New Scotland Yard who led the United Kingdom’s response to tackling high-level corruption, told the author that ‘the deck is stacked’ against prosecutors and the accused ‘hold all the cards.’
Criminal justice systems have evolved over centuries to deal with crimes like murder where there is an identifiable victim, available evidence and witnesses to testify. Corruption is less clear cut. It is committed by networks of people who all want to keep their activities secret. This secrecy is frequently enforced with violence, so there are seldom willing witnesses.
Serious corruption is often enabled by teams of professionals who construct layers of cross-border corporate entities to conceal the evidence and proceeds of crime. Criminal justice systems struggle to deal with 21st-century globalised corruption, where money leaves a country instantly, to be hidden in financial secrecy jurisdictions or the metaverse. Mutual legal assistance procedures for international cooperation in investigations are outdated and slow.
One card in the hands of the accused is money – people and companies implicated in serious corruption can often outmatch law enforcement by hiring more lawyers than the state can afford.
Another card is the right to a fair trial. There are good reasons for the accused’s right to remain silent, but in complex corruption cases, that right is a major obstacle for law enforcement. When an implicated party does not have to put a version on record at an early stage in proceedings, officials go into a case blindfolded. They struggle to prepare, secure proper evidence and interview the right witnesses.
In complex corruption cases, that means prosecutors must plan for all scenarios, resulting in a waste of limited resources, and ineffective prosecutions. This is why, in some jurisdictions like Hong Kong, there is no right to remain silent in corruption cases, and failure to answer investigators’ questions is a criminal offence.
Another card in the hands of the accused is the criminal burden of proof, beyond a reasonable doubt, which is an extremely difficult threshold to meet in complex corruption cases. Anti-corruption enforcement that relies on a lower burden of proof – a balance of probabilities – tends to have a better track record in court.
In South Africa, civil action against corruption has been more effective than criminal litigation. The Special Investigating Unit is a government agency that recovers financial losses suffered by the state due to corruption. It has an impressive track record of court victories ordering companies to return ill-gotten gains.
The Asset Forfeiture Unit in the National Prosecuting Authority (NPA) also harnesses the benefit of civil litigation to reclaim the proceeds of crime. In state capture cases, it has frozen R14 billion and recovered R11 billion.
Civil society organisations have brought other civil actions. The Organisation Undoing Tax Abuse creatively used the Companies Act to have Dudu Myeni, the former South African Airways board chair implicated in state capture, declared a delinquent director and barred from future directorships.
Corruption isn’t an administrative offence in South Africa, unlike in the United States, where the Securities and Exchange Commission has jurisdiction to enforce administrative liability for corruption. Cases are also decided on a balance of probabilities and are therefore easier to prove – and can result in fines larger than criminal penalties. Anti-corruption enforcement of a similar nature in South Africa would be a worthwhile future reform.
Using non-trial resolutions (NTRs) in corruption cases is another way to address the criminal justice system’s limitations. NTRs are a form of public-private cooperation for corruption provided for in the UN Convention Against Corruption and endorsed by the Organisation for Economic Co-operation and Development Working Group on Bribery.
NTRs typically offer leniency to companies by enabling them to avoid a finding of guilt. Companies must accept responsibility, hand over information about the activities of responsible individuals, pay substantial penalties or reparations, and improve their internal anti-corruption compliance programmes.
South Africa’s Department of Justice and Constitutional Development is considering drafting legislation for NTRs. In the interim, the NPA has developed a simple form of NTR in a policy directive.
International good practice increasingly looks beyond traditional law enforcement to find solutions to corruption. This is because many corrupt activities are not criminal in nature. For example, organisational cultures can facilitate corruption, and bullying discourages people from standing up for their values – but isn’t a crime.
With its focus on punishment, the legal system tends to be backwards-looking – it rarely looks ahead to the prevention of future losses. New Institute for Security Studies (ISS) research shows that many successful corruption reforms are home-grown, small-scale, sector-by-sector, institution-by-institution – and focused on prevention.
One example is the Maritime Anti-Corruption Network’s (MACN) achievements in Lagos Harbour in Nigeria. The MACN is a collective action project in the shipping sector. It brings together businesses, civil society, and the government to reduce corruption in ports worldwide. Led by businessman Soji Apampa, members collaborate with government institutions to introduce standard operating procedures in ports.
Real-time transparent reporting by ships’ captains has immediate consequences for officials who solicit a bribe. Sectoral collective action against corruption is an important complementary approach to traditional law enforcement measures.
The ISS study recommends that South Africa use every available tool to tackle the complex problem of corruption. This includes legal reform, strengthening law enforcement institutions, building cultures of integrity in government, and working with civil society and the private sector to drive prevention.
Read more in the ISS' two new publications on corruption:
- Rethinking anti-corruption in South Africa: pathways to reform - click here
- Emerging theory for effective anti-corruption reform in South Africa - click here
Colette Ashton, Research Consultant, ISS Pretoria
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