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.

De­bate is rag­ing on who will suc­ceed Pres­i­dent Ja­cob Zuma.

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