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Legal Responses to State Corruption in Commonwealth Africa

Published online by Cambridge University Press:  28 July 2009

Simon Coldham
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Extract

Few countries in the world can claim to be free from corruption and none of these is to be found in Commonwealth Africa. Even though administrative incorruptibility was one of the boasts of the British colonial service, low-level corruption was common during the colonial period and indeed served to bolster the colonial system. Since African states obtained political independence, levels of corruption have markedly increased, regardless of official ideology or economic approach, and in many countries corruption is both pervasive and endemic. Changes of government are often accompanied and, in the case of military coups, justified by commitments to eradicate the corrupt practices that allegedly characterized the previous regime. Corruption is an obstacle to economic development and to political integration, and most African governments (cynically or not) avow the need to combat it. Pressure on governments to act has increased in recent years and comes from two sources. The emergence of pro-democracy forces has drawn large numbers of people into the arena of political debate and organization and this in turn has led to demands for openness and accountability on the part of government. Moreover, foreign donors and international financial institutions are today less willing to condone corrupt practices on the part of African governments. They stress the importance of good governance and accountability and the need to link economic reconstruction with institutional reform.

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Articles
Information
Journal of African Law , Volume 39 , Issue 2 , Autumn 1995 , pp. 115 - 126
Copyright
Copyright © School of Oriental and African Studies 1995

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References

1 In the public office sense of the term corruption can be defined as “behaviour which deviates from the formal duties of a public role because of private-regarding (personal, close family, private clique) pecuniary or status gains; or violates rules against the exercise of certain types of private-regarding influence”. Nye, J. S., “Corruption and political development: a cost-benefit analysis”, (1967) 61 American Political Science Review 419. Nye identifies bribery, nepotism and misappropriation as the main types of corrupt behaviour.CrossRefGoogle Scholar

2 See Robert, Tignor, “Political corruption in Nigeria before independence”, (1993) 31, 2Journal of Modem African Studies 175.Google Scholar

3 See Ernest, Harsch, “Accumulators and Democrats: Challenging State Corruption in Africa”, (1993) 31, 1Journal of Modem African Studies 31, at 39–41.Google Scholar

4 See, for example, Stephen, Ouma, “Corruption in public policy and its impact on development: the case of Uganda since 1979”, (1991) 11 Public Administration and Development 473, at 483 ff.Google Scholar

5 One of the most recent and most controversial laws has been the Corruption and Economic Crime Act, 1994, of Botswana, noted by Quansah, E. K. in (1994) 38, 2Journal of African Law.CrossRefGoogle Scholar

6 Malawi is one of the exceptions. It has, however, introduced a special and rigorous regime for the prosecution and punishment of theft in the public service. See Ng'ong'ola, Clement, “Controlling theft in the public service: penal law and judicial responses in Malawi”, (1988) 32, 1Journal of African Law 72.CrossRefGoogle Scholar

7 See Commonwealth Legal Advisory Service, British Institute of International and Comparative Law, Prevention of Corruption: A Comparative Study of Selected Commonwealth Legislation, New Memoranda Series No. 1, December 1987.

8 Prevention of Corruption Act, 1971 (No. 16 of 1971), s. 2.

9 Act No. 14 of 1980, s. 27.

10 Cap. 65, s. 6(1).

11 Act No. 34 of 1985, s. 4.

12 S. 9. A similar “unexplained lifestyle” offence is to be found in the Hong Kong Prevention of Bribery Ordinance (Cap. 201), s. 10(1).

13 Ss. 33 an d 46.

14 A. M. Simataa and another v. Attorney-General, High Court, 5 November 1986 (No. 1986/HP/ 448). Another provision in the Act, compelling the accused to give evidence on oath, was struck down in Mumba v. The People (1984) ZR 38.

15 Corrupt Practices (Amendment) Act, No. 29 of 1987, ss. 8, 13. This places an evidential burden on the accused.

16 S. 42. Evidence of property possessed by the accused for which he is unable to account may be taken by the court as corroborating the testimony of a witness that the accused accepted any valuable consideration and as showing a corrupt intent. S. 40(1).

17 This was the approach taken by the Privy Council in Vasquez v. R [1994] 3 All E.R. 674.

18 Some of these scandals, e.g. the Cement Scandal, the Rice Scandal and the Jaguar Scandal, are discussed in Robert Williams, Political Corruption in Africa, Gower, 1987, at 67 ff and 95 ff.

19 Cap. 389, Laws of the Federation of Nigeria 1990, s. 13(1). The tribunal also has the power to forfeit the assets of the accused. S. 6(4).

20 S.20.

21 See, for example, the Zambian Corrupt Practices Act, 1980 (as amended), s. 35 (five years imprisonment minimum on a second conviction) and the Tanzanian Economic and Organised Crime Act, 1984, which sets up an Economic Crimes Court (ss. 3 and 4) and special rules of investigation and procedure.

22 See Ng'ong'ola, op. cit.

23 Decree No. 6 of 1992, ss. 5 and 8(2)(a).

24 S. 2(3). Where a public officer makes a false declaration, the onus is on him to show that he had reasonable grounds to believe that it was true. S. 2(4).

25 For a discussion of the issue of international co-operation in this field see Practical Measures against Corruption, Doc. A/CONF. 144/8 prepared for the Secretariat for the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana, Cuba in August/September 1990, at 25 ff. Where the proceeds of corruption are transferred to another Commonwealth state, it may be possible to trace, seize and confiscate them under the Commonwealth Scheme relating to Mutual Assistance in Criminal Matters. See Commonwealth Schemes on Mutual Assistance in the Administration of Justice, Commonwealth Secretariat, June 1991.

26 Ibid. at 29 ff.

27 Other measures, not discussed in the text, include the application of special rules of evidence in corruption trials.

28 Prosecutions for corruption generally require the consent of the Attorney-General.

29 Ombudsman Act, 1995, noted later in this issue of the Journal of African Law. The Ghanaian Commission on Human Rights and Administrative Justice, established in 1993, is a successor to the Ombudsman established in 1980. For a history of the ombudsman in Africa see John Hatchard, “The institution of the ombudsman in Africa with special reference to Zimbabwe”, (1986) 35 I.C.L.Q. 255 and “The ombudsman in Africa revisited”, (1991) 40 I.C.L Q, 937.

30 A signal exception is the Namibian Ombudsman, who is appointed by the President on the recommendation of the Judicial Service Commission and whose tenure and conditions of service are virtually identical to those of judges. Namibian Constitution, Arts. 89–93. The new ombudsman in Ghana, the Commission on Human Rights and Administration of Justice, also enjoys similar terms and conditions of service to those of judges. Constitution of Ghana 1992, Arts. 221–223.

31 Outside Africa the ombudsman is generally linked to the legislature. It is interesting to note that under the proposed Constitution of Uganda the ombudsman will report to Parliament every six months, whereas at present it reports direcdy to the President and its reports are publishable at the discretion of the President. Moreover it is proposed that the ombudsman should have judicial powers. See Mubiro Musoke, “Human rights, politics, war and the new Constitution of Uganda”, (1993) 2 Uganda Quarterly Review 49, at 105ff.

32 Again exceptions are provided by the two most recently established ombudsmen. In Namibia he may recommend a prosecution and in Ghana the Commission on Human Rights and Administration of Justice has broad powers to bring legal proceedings. In most African jurisdictions implementation is ultimately a matter for the head of state.

33 This seems to have occurred in Nigeria, where the ombudsman, the Public Complaints Commission, infected from the start with a “civil service” outlook, has developed into a huge, wasteful and inefficient bureaucracy itself. See Oluwole Akanle, “Self-restraint or abdication? A note on the investigating powers of the Nigerian Public Complaints Commissioner (the Ombudsman)”, (1978) 10 Gambia Law Journal 70, and Victor Ayeni, “Nigeria's bureaucratised ombudsman system: an insight into the problem of bureaucratisation in a developing country”, (1987) 7 Public Administration and Development 309.

34 An exception is the Ugandan Ombudsman, the Inspector-General of Government (established in 1986), which has the power to undertake investigations on its own initiative.

35 The activities of judicial officers are almost invariably excluded in the interest of preserving the independence of the judiciary.

36 Hatchard notes that in Zimbabwe the largest group of complainants has been civil servants complaining about their terms and conditions of service, whereas the Ombudsman of Tanzania (with its predominantly rural population) receives more complaints per head than any other ombudsman in Africa due in part, it would seem, to its practice of travelling around the country informing people of their rights. Hatchard, op. cit. (1986), at 255 and 267.

37 Inspector-General of Government Statute, 1988, s. 7. Unusually for an ombudsman, the Inspector-General is also required to police and promote the protection of human rights and the rule of law in Uganda.

38 See Joseph Ayee, “Notes on the Commission on Human Rights and Administrative Justice under the 1992 Ghanaian Constitution”, (1994) 27, 2 Verfassung und Recht in Ubersee 159.

39 Constitution of Ghana, 1992, art. 218. The Commission must give reasons for not taking or continuing a case.

40 “Reactive strategies provide no mechanism for exposing the far more costly effects of sophisticated corruption, inviting the cynical conclusion that the system protects the corrupt but powerful official by sacrificing the clumsy petty thief.” Practical Measures against Corruption, op. cit., at 21.

41 Corrupt Practices Act, 1980, s. 6.

42 Ibid. s. 10(1). By contrast the Commission set up in the Gambia under the Evaluation of Assets and Properties and the Prevention of Corrupt Practices Act, 1982, has purely investigative functions, though these are extensive, including the power to investigate the conduct or assets of any public officer.

43 See, generally, Lungu, Gatian, “The implementability of Zambia's Corrupt Practices Act”, (1981) 13 Zambia Law Journal 1 and John Hatchard and Muna Ndulo, Readings in Criminal Law and Criminology in Zambia, James Currey, 1994, at 87 ff.Google Scholar

44 The reason for the Bill, as stated in the Memorandum, was: “Recent events have revealed that corruption and economic crime are increasing on a large scale especially involving the Public Service and other public institutions.” For a discussion of some of these events see Kenneth Good, “Corruption and mismanagement in Botswana: a best-case example”, (1994) 32, 3 Journal of Modem African Studies 499.

45 S. 3.

46 Ss. 3, 4 and 22.

47 Ss. 6–15.

48 S.39.

49 It ha s been argued that such a body could never be capable of confronting the type of elite corruption experienced in Botswana. See Good, op. cit., at 521.

50 See Ernest, Harsch, “Accumulators and democrats; challenging state corruption in Africa”, (1993) 31, 1 Journal of Modem African Studies 31 at 45–46, where President Robert Mugabe is quoted as describing ZANU's leadership code in Zimbabwe as a “despicable piece of paper”.Google Scholar

51 See Williams, , op. cit, at 110.Google Scholar

52 See Lungu, , op. cit.Google Scholar

53 See Good, , op. cit., at 517.Google Scholar

54 See, generally, Dlakwa, H. D., “Salient features of the 1988 civil service reforms in Nigeria”, (1992) 12 Public Administration and Development 297. He concludes that these reforms, while laudable enough in principle, are grafted on to the old corrupt social system and have therefore no more chance of being effective than earlier attempts.CrossRefGoogle Scholar

55 It is possible that some of the reforms actually increase opportunities for corruption, in that they establish bureaucratic bodies with limited accountability and broad discretionary powers.

56 See, e.g., Good, op. cit, at 519 ff and Kpundeh, op. cit., at 153.

57 During the Nkrumah period in Ghana much corruption went undetected because of corruption within the Auditor-General's Department. See Herbert, Werlin, “The roots of corruption—the Ghanaian enquiry”, (1972) 10, 2 Journal of Modem African Studies 247, at 259.Google Scholar

58 Clarke, Michael (ed.), Corruption: Causes, Consequences and Control, New York, 1983, at xvi.Google Scholar

59 For an account of the measures that the international community might take against corrupt African governments, see Patrick, McAuslan, “A new deal for Africa”, unpublished paper presented at a conference on Corruption in Africa at the Institute of Commonwealth Studies, University of London, October 1994.Google Scholar

60 Transparency International's international agend a is (i) to monitor development concerning corruption in international business transactions and to mobilize action to contain it, and (ii) to serve as an international solidarity movement, with national groups supporting each other, by sharing experience and strategies and, where necessary, by providing political support and encouragement. See Jeremy Pope, “Corruption in Africa: the role for Transparency International”, paper presented to the African Leadership Forum, Corruption, Democracy and Human Rights in West Africa, at Cotonou, Republic of Benin, 19–24 September 1994.