(Please note that this paper is not anywhere near completion)

Preventing and Combating Corruption as a Means of Promoting and Protecting Human Rights in Africa

Sabelo Gumedze

Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violation of human rights, distorts markets, erodes the quality of life, and allows organized crime, terrorism and other threats to human security to flourish.

- Kofi Annan, 2003[1]

1Introduction

Corruption is one of the most serious challenges facing Africa today. Not only does corruption cripple a state’s economy but it also hinders the promotion and protection of human rights. Corruption is not justan African phenomenon.It is a global problem. Corruption knows no borders and does not single out developing countries of which the majority is in Africa, but extends to developed nations, which are sometimes founded upon democratic principles.On this point, the Watergate scandal which rocked the United States wherein corporations were found to be involved in foreign and domestic bribery is often sighted. In response to this scandal, the US passed the Foreign Corrupt Practices Act (FCPA).According to the World Bank, the cost of corruption globally stands at USD $ 1000 billion.[2]Ouzounov argues that ‘corruption as a phenomenon has emerged from the backstage of local socio-political concerns to the forefront of global economic, legal, and development debate.’[3]Corruption (especially government corruption) also features prominently in the human rights discourse as it is seen as providing both an incentive and a means for human rights violations.[4]

At the regional level, the AU should be seen as standing at the forefront in the fight against corruption not just on paper but in practice. Cognizant of the fact that the AU Treaty, inter alia, calls for the need to promote and protect human and peoples’ rights, consolidate democratic institutions and foster a culture of democracy and ensure good governance and the rule of law, the Member States of the AU were

Convinced of the need to formulate and pursue, as a matter of priority, a common penal policy aimed at protecting the society against corruption, including the adoption of appropriate legislative and adequate preventive measures.[5]

It was along these lines that the AU adopted the African Union Convention on Preventing and Combating Corruption (Corruption Convention) adopted on 11 July 2003. The adoption of the Protocol was a heed to a call made by the President of the World Bank, James D. Wolfensohn, who made the following assertion:-

[L]et’s not mince words: we need to deal with the cancer of corruption. In country after country, it is the people who are demanding action on this issue. They know that corruption diverts resources from the poor to the rich, increases the cost of running businesses, distorts public expenditure, and deters foreign investors.[6]

The manner in which the AU seeks to deal with this so-called ‘cancer of corruption’ is not yet complete as the Corruption Convention is, however, not yet in force. Could this mean that the AU was merely paying a lip service to uprooting the corruption problem in Africa? Whether the AU Member States are indeed committed to deal with corruption head-on is in fact a reality, only time will tell. Suffice it to say that the significance of the Corruption Convention is the fact that the prospects of the AU in the promotion and protection of human rights in Africa is to a large extent dependent upon its strategy on preventing and combating corruption in Africa. Corruption, therefore, is not only a development challenge but also a human rights challenge. This part seeks to consider preventing and combating corruption as a means of promoting and protecting human rights in Africa at the AU level. The part also calls upon the Member States of the AU to quickly ratify the Corruption Convention which partly addresses the human rights concerns in Africa. After all, the Member States of the AU have rightly accepted that putting in place a common penal policy aimed at protecting the society against corruption is in fact a matter of priority.

Global efforts in the fight against corruption include a number of international and regional instruments such as the following: Inter-American Convention Against Corruption, adopted by the Organization of American States in 1996;[7] Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, adopted by the OECD in 1997;[8] Criminal Law and Civil Law Conventions on Corruption, adopted by the Council of Europe in 1999;[9]ICC Rules of Conduct on Extortion and Bribery in International Business Transactions;[10] ICC Manual of Best Corporate Practices to provide guidance for compliance with the OECD Bribery Convention;[11] UN Convention on Corruption adopted in 2003. The Corruption Convention is therefore a recent addition to this list of instruments which is Africa-specific.

2The Challenge of Defining Corruption

Perhaps, one problem associated with debates around the issue of corruption is that of definition. As Shihata rightly points out, this is because societies differ in their views as to what constitutes corruption, however, corruption as a concept finds universal manifestation.[12] In the case of State of Andhra Pradesh v V. Vasudeva Rao,[13] noting that ‘the tentacles of corruption are spreading fast in the society corroding the moral fiber and consequentially in most cases the economic structure of the country’, the Supreme Court of India observed that ‘[t]he word corruption has wide connotation and embraces almost all the spheres of our day-to-day life the world over.’ Since the literature on corruption stemming from and influenced by a legion of disciplines is vast and diversified, under this subtopic, some but not all of the definitions of corruption shall be discussed. Thereafter, it would be useful to confine the discussion on the meaning of corruption to what the Corruption Convention envisages.

Launching the anti-corruption strategy in September 1997, the World Bank defined corruption as the ‘use of public office for private gain.’[14]Transparency International, the global civil society organization leading the fight against corruption, defined corruption as ‘the abuse of entrusted power for private gain.[15]The Moody-Stuart defines corruption as the ‘misuse of public power by heads of state, ministers, and top officials for private pecuniary profit.’[16]Unfortunately, corruption is not only confined to the public sphere. It also takes place within the private sector.

According to Carr, corruption is a hidden crime which takes shape commonly in a form of a bribe, that is a promise or an offer to give something, often illegally, to procure or gain influence, or a kickback, that is payment of part of the income to a person having influence over the size or payment of the income through some illegal arrangement.[17]This definition is not satisfactory because not every corrupt act involves a bribe or a promise or an offer to give something. Truelove rightly observes that they are numerous types of corruption.[18] For this reason, therefore, it is difficult to have a universal and all-encompassing definition of corruption. On this point, Ouzounov notes the following:

Although corruption is a universally recognized phenomenon, “[t]he challenge facing corruption analysts begin with how to define it.” To some people corruption may seem deceivingly obvious… [In fact]…“[m]ost people know corruption when they see it. The problem is that different people see it differently.” Perceptions of corruption vary depending on factors such as the industry where it is observed, the governing laws, and the local culture. Experts define corruption differently depending on the field of their expertise.[19]

Mindful of the challenge of defining what corruption is, for purposes of this work the common denominator of what corruption (in whatever form) entails is that it is a violation of human rights. This point shall be explored later on in more detail.

3Corruption as envisaged in the Corruption Convention

The Corruption Convention proscribes conduct which is viewed as corrupt practices. It is these acts of corruption that the different types of corruption may be defined. In terms of the Corruption Convention acts of corruption and related offences which violate the Convention include the following:-

3.1Definition One

Article 4 (1) (a) defines corruption as the solicitation or acceptance, directly or indirectly, by a public or any other person, of any goods or monetary value, or other benefit, such as a gift, favour, promise or advantage for himself or herself or for another person or entity, in exchange for any act or omission in the performance or his or her public functions. From this definition, the proscribed corrupt practices revolve around the process of carrying out public functions.

3.2Definition Two

Article 4 (1) (b) defines corruption as the offering or granting, directly or indirectly, to a public official or any other person, of any goods of monetary value, or other benefit, such as a gift, favour, promise or advantage for himself or herself or for another person or entity, in exchange for any act or omission in the performance of his or her public functions.

3.3Definition Three

Article 4 (1) (c) defines corruption as any act or omission in the discharge of his or her duties by a public official or any other person for the purpose of illicitly obtaining benefits for himself or herself or for a third party.

3.4Definition Four

Article 4 (1) (d) defines corruption as the diversion by a public official or any other person, for purposes unrelated to those for which they were intended, for his or her own or that of a third party, of any property belonging to the State or its agencies, to an independent agency, or to an individual, that such official has received by virtue of his or her position.

3.5Definition Five

Article 4 (1) (e) defines corruption as the offering or giving, promising, solicitation or acceptance, directly or indirectly, of any undue advantage to or by any person who directly or works for, in any capacity, a private sector entity, for himself or herself or for anyone else, for him or her to act, or refrain from acting, in breach of his or her duties.

3.6Definition Six

Article 4 (1) (f) defines corruption as the offering, giving, solicitation or acceptance directly or indirectly, or promising of any undue advantage to or any person who asserts or confirms that he or she is able to exert any improper influence over the decision making of any person performing functions in the public or private sector in consideration thereof, whether the undue advantage is for himself or herself or for anyone else, as well as the request, receipt or the acceptance of the offer or the promise of such an advantage, in consideration of the influence, whether or not the influence is exerted or whether or not the supposed influence leads to the intended result.

3.7Definition Seven

Article 4 (1) (g) defines corruption as an illicit enrichment.

3.8Other Offences Related to Corruption

Assuming proceeds have been derived from the acts as stated above, the use or concealment of the same falls within the ambit of the Corruption Convention. The same is true with the participation as a principal, co-principal, agent, instigator, accomplice or accessory after the fact, or any other manner in the commission or attempted commission of, in collaboration or conspiracy to commit, any of the acts referred to in therein.

4Corruption as an African Problem

That Africa is the most affected continent in so far as corruption is concerned is not in question. According to Transparency International ‘[t]he combination of abundant natural resources, a history of autocratic and unaccountable government, as well as conflict and crisis throughout the continent have posed particular challenges to governance and the fight against corruption in Africa to the point that several countries have become synonymous with graft.’[20] To add the causes enumerated by Transparency International, it would seem that generally the lack of commitment on the part of the AU’s Member States in so far as human rights are concerned is a major contributing factor in the fights against corruption. Lest we forget, sub-Saharan Africa is the only region in the world where poverty has increased in the past 25 years and half of the continent’s population of 840 million people lives on less that 1 USD per day.[21] The prevalence of corruption in Africa is making the situation even worse.

The problem of corruption in Africa has to be analyzed in the context of is potential implications for human rights.

5Corruption and Human Rights

Since corruption is an act or omission undertaken by human beings it is bound to affect other human beings thus impacting on human rights. Kumar argues that corruption dilutes human rights in a significant way, even though it is rarely observed and understood from this perspective.[22]

5.1The Right to Human Dignity

The Charter of the OAU stipulated that ‘freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples.’[23] The legitimate aspirations of the African people include a corrupt-free society. It is only a corrupt-free government that can legitimately ensure the right to human dignity through the rendering of a service that is free from corrupt practices. Article 5 of the African Charter provided that ‘[e]very individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status.’ Kumar argues that ‘[c]orruption undermines the fundamental values of human dignity and the political equality of the individual’. It is for this reason, therefore, that Kumar calls for what he terms ‘an imminent need to formulate a fundamental human right to corrupt-free service in order to ensure that democratic governance is meaningfully achieved.’[24]

In what way does corruption violate human dignity? Building up an argument on this pertinent question, Kumar argues that corruption violates human dignity in the sense that it hinders the proper fulfillment of other basic rights, such as the right to life, liberty and equality, to name but a few.[25]

5.2The Right to a Society Free of Corruption

Kumar further talks of the right to a society free of corruption, a right which is unfortunately not expressly provided for in the African Charter. Accordingly, this right, Kumar argues, ‘is an inherent human rights because life, dignity, equality, and other important human rights and values significantly depend upon this right.’[26]The right to a society free of corruption, Kumar, forcefully asserts, is one whose absence results in these essential rights losing they meaning as well as their actualization.[27]

5.3The Right to Corruption-Free Service

The right to a society free of corruption presupposes that any service rendered to individuals, especially by governmental departments is also free from any form of corrupt practices. Again this right is not expressly found in the African Charter. The right to corruption-free service is, however, an in-built right stemming from article 13 of the African Charter which provides that: firstly, every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law; secondly, every citizen shall have the right of equal access to the public service of the country, thirdly, every individual shall have the right of access to public property and services in strict equality of all persons before the law. Corruption threatens the very foundation of democracy, which the AU is striving to achieve in Africa. Kumar observes that ‘corrupt acts in every department of the government as well as at every level of government creates a vicious environment that undermines the rule of law and the social fabric of [any] society.’[28]

5.4The Right to Democratic Governance

The right to participate freely in one’s government has a concomitant duty on the part of the democratically elected government to uphold the principles of accountability and transparency. Truelove argues that one of the best ways of combating corruption is though transparency since ‘corruption does not grow well in sunlight.’[29]

5.5The Right to Development

According to Wolfensohn, ‘corruption impedes growth and development and penalizes the poor.’[30] The right to development is guaranteed under articles 20 and 22 of the African Charter. Kale argues that the right to a corruption-free society originates and flows from the right of people to exercise permanent sovereignty over their natural resources and wealth, that is, their right to economic self-determination, recognized under common article of the ICCPR and ICESCR.[31]Under the African Charter, this right is expressed under article 21 (1) as follows: ‘All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.’

5.6The Right to a Generally Satisfactory Environment

A corrupt-free society ensures the right of all peoples to a general satisfactory environment favourable to their development, which is guaranteed under article 24 of the African Charter. A generally satisfactory environment in this context is one which guarantees the enjoyment of fundamental human rights, which automatically results in the elimination of all corrupt practices especially on the part of the government.

5.7The Right to Self-Determination

A ‘generally satisfactory environment’ engenders the exercise of the right to economic development. This right is closely linked with the right to self determination. Article 20 (1) of the African Charter provides that:

All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.

Any corrupt practice by the government negates the pursuit of the people’s economic and social development according to the policy which they freely choose. Putting this argument into perspective, Kumar notes the following:

Thus, the state would be in violation of the right to economic self-determination if it engages in the corrupt transfer of ownership of natural wealth to those selected power holders. It is here that the concept of transparency and accountability fits in well with an integral understanding of the problem of corruption and the need for protecting human rights. When the government engages in corrupt activities, it is abusing power, disrespecting law and thereby violating the human rights of its citizenry. This violation by the state also results in a situation where people are denied, both individually and collectively, their right to freely use, exploit and dispose of their natural wealth in a manner that advances their development[32]