Institutions guard against graft
WHO was the lesser evil – Donald Trump or Hillary Clinton? Who will be our lesser evil – Cyril Ramaphosa or Nkosazana Dlamini Zuma? Who do we choose, to ensure the least damage is done to our economy?
These were, and are, common questions.
Trump’s election to the American presidency has sent shock waves around the world, with many on the left worried that he will use the powers of his office to pursue a personal agenda, or worse yet, to enforce some of his bigoted beliefs.
Closer to home, the looming end of Jacob Zuma’s term of office has sparked a national debate, not of excitement and hope, but of concern, about who will succeed him.
Amid this controversy, Transparency International published its 2016 Corruption Perceptions Index, which measures the levels of public trust in our political representatives’ moral acuteness.
Among a sea of red (high corruption) and only two small yellow (very clean) islands, South Africa finds itself a deep orange – ranking 64 out of 176 countries. We have improved marginally. Last year, we scored 44 out of 100 points, this year, we’re at 45; but by scoring less than 50, Transparency International still regards us as having a serious problem with corruption.
Given the controversy about changes in leadership and the lessthan-ideal levels of public trust around the world, we often ask how we can break free from the shackles of corruption that hinder any kind of socio-economic progress.
Unfortunately, our answers to this question are usually incorrect.
Instead of seeking to strengthen our institutions – most of which exist for the explicit purpose of combating corruption – we are more concerned with the intentions and character of individual leaders or their political organisations.
Even worse, people like Jimmy Manyi and the Progressive Professionals Forum seek to dismantle the institutions and give absolute power to the very people we want to stop being corrupt!
We quote Lord Acton’s immortal words that absolute power tends to corrupt absolutely, but, apparently, we appreciate only the poetic nature of the quote, rather than the public policy truths he conveyed with it.
A government is only as good as far as it is constrained and limited.
No government, office or department within a government, which is allowed to do as it pleases, has ever produced sustainable prosperity.
Even Thomas Sankara’s benevolent dictatorial rule in Burkina Faso was cut short because that country did not have the institutions to guard against corruption.
We are fortunate in that we have the institutional groundwork for clean government laid out.
Our constitution, if interpreted by a rule of law-conscious judiciary, amply limits the government to exercising its powers rationally and with due regard for the liberty and property of the people.
Our judiciary, however, is not always rule of law-conscious, and, in what appears to be a residual mentality from the apartheid period, the courts tend to “defer” to the executive or interpret legislation “generously” to allow the government more space to act,.
A key principle of constitutionalism is “that which is not permitted, is forbidden” for the government, and “that which is not forbidden, is permitted” for the people, and this is often forgotten by our courts.
Our institutions, such as the Public Protector, the Judicial Service Commission, and, of course, civil society institutions, are also crucial to a free society with an accountable government. However – in what might be a constitutional flaw – many of our state anti-corruption bodies have their potential negated by the fact that the political class plays a role in appointing those who are to keep them in check.
The major role the president plays in the appointment of the public protector, for instance, is one such self-defeating phenomenon. And while our civil society is strong, it is not nearly as strong as it could be. Our media still tries to make itself appear “objective” and “impartial”, when it is obvious that such a state of affairs is impossible.
It would be beneficial to our society if our newspapers and broadcasters would lay their biases out for everyone to see.
In the UK and the US, civil society is mature enough to feel confident in not hiding its biases.
The cure to corruption is not the moral character or good intentions of the political class, but the safeguards and institutional framework which society erects around the political class.
* Martin van Staden is Legal Researcher at the Free Market Foundation and Academic Programmes Director for Students For Liberty in Southern Africa.