No short cuts in fight against graft
THE establishment of yet another anti-corruption agency in South Africa will not be a simple task, with possible difficulties in identifying its power relationships with the other agencies.
At the end of the previous millennium and beginning of this one, there was a wave of anti-corruption agencies being set-up all over the world. One reason for that was the adoption of the UN Commission Against Corruption.
The second reason, especially in Eastern Europe, was the desire of countries to join the EU. In the beginning, there were no criteria that countries had to meet with regards to fighting corruption in order to join the EU, but eventually the establishment of such agencies was required.
There are two different types, the first being preventative agencies, which do not have any law-enforcement powers. Countries that have installed this type of agency include Slovenia, Serbia, Montenegro, Romania, Ukraine and, lately, France. The second type are law-enforcement agencies established by regions and countries such as Hong Kong, Indonesia, Lithuania, Latvia, Croatia, Romania and Ukraine.
The big question is: Should an agency have law enforcement powers or not? If a country has effective control over its existing law enforcement agencies, it may not need to put in place new institutions, as that will not only produce solutions, create new problems. A new institution could garner the resentment of existing institutions, because commonly the newest institution poaches personnel from those already in existence, leaving the existing ones objectively weaker.
Furthermore, it is easy for a new agency to boast that they will investigate and prosecute corruption. But, in order to prosecute, the resources, technical equipment and other measures must be available. This is a dilemma all countries must deal with when establishing anti-corruption agencies.
After the first wave of enthusiasm, once many agencies had been set up, came the first wave of disappointment. Countries started speaking of anti-corruption fatigue. A few years later, the situation has settled down and cool heads can be used to think the issues through.
There is now also a type of agency called a council, which is the kind proposed by President Cyril Ramaphosa. The Inclusive Society Institute’s recent high-level dialogue on the merits of establishing such an agency revealed the country’s position in terms of this.
Normally these are high-level agencies or anti-corruption institutions established by countries that want to show they are giving the fight against corruption a strong political emphasis. But to be frank, there has never been such a body that has been effective.
First of all, such a body cannot do any concrete work, because they cannot carry out law enforcement. In the case of South Africa, this is excluded by definition. The president has said that the council will report to Parliament. But law enforcement agencies cannot report directly Parliament if they are to have executive power.
Secondly, an agency established at such a high-level will be under pressure to impress on others. The tasks of high-level institutions or councils are to co-ordinate and co-operate mostly with existing institutions. This can be done, but has yet to be seen, mainly due to the fact that the existing agencies already have their assigned powers and responsibilities. They already are responsible to another entity. Therefore, if the body cannot impose its position and its strength to force existing agencies to function as directed, then what will the council actually be able to do? It is not known what powers the council will have, but here is a basic analogy. There are anti-corruption agencies which simply fall into the strategy of the institutions as already set up in a country. And then there are agencies that act like sharks. Agency one cannot do much in the fight against corruption.
However, an agency that is acting as a shark in a pool of big fish, being the existing agencies, can enforce them to do their jobs. Of course, this would immediately make the council very unpopular with the other agencies. But this should not be a sticking point; after all, the purpose of working in the public sector is not to make friends, it is to take care of communities. Therefore, if the agency has a co-ordinating task, it will need to be a shark, which will require it to have very strong powers.
It is not enough to have general political will and good personnel. An agency needs clearly defined boundaries, and resources. South Africa will have to decide whether to form an agency or a council that will try to increase the level of co-operation, co-ordination and functioning of its existing bodies by acting as a shark. Otherwise, there is no real reason why it should establish yet another agency, which is surely a recognition of the fact that not all of the many existing ones are as effective as they could be, or even necessary.
There is another way of going about it, but it’s not recommended for South Africa. In the last year there has been a new kind of anti-corruption agency established in Afghanistan, Ukraine and Moldova. Armenia and Tunisia are also thinking about taking this approach on board. It is an agency that is not only composed of national public officials, but in which there are also a combination of national and international anti-corruption experts.
National public officials bring their experience about local circumstances and their law, while the international experts bring their anti-corruption experience and independent positions. This could be the future of anti-corruption agencies. This approach is well suited to complicated countries that cannot fight corruption on their own.
South Africa will need to do a thorough analysis of what the proposed new agency or council’s role should be, otherwise it will simply be sitting with yet another agency. It is encouraging that the government is willing to take on the issue on head-on, but it would be ill-advised to take short cuts in the fight against corruption, as this could cause more harm than good in the long term.
This is Part 2 of a 5-part series of a high-level dialogue on the establishment of a National Anti-corruption Agency for SA, an extract from the Inclusive Society Institute report on the dialogue.