A number of instruments are used to rate and measure a country’s level of corruption and notable among these is Transparency International’s Corruption Perceptions Index (CPI). The CPI, for example, uses various corruption indicators to arrive at a country’s corruption index. Countries are ranked on a scale of zero to 100, with a score of zero representing highly corrupt and a score of 100 very clean.
The corruption scores are standardised before being averaged into the CPI and the 2018 CPI was released on January 29, 2019. According to Transparency International (TI), the CPI reveals varying degrees of countries failing to control corruption, and thus posing a threat to democracy worldwide.
The CPI results came with a few surprises. For instance, the United States is ranked outside of the top 20 internationally least corrupt countries for the first time since 2011 at number 22 with a score of 71 (global average). Denmark is ranked number 1 with a score of 88 as the least corrupt country.
The CPI puts South Africa at an unenviable position number 73, with a score of 43 in the perceived level of public sector corruption out of 180 countries /territories in the world. SA’s ranking is similar to that of Morocco, and just three notches better than Lesotho, Trinidad and Tobago, Ghana and Burkina Faso, who all ranked at 78 with a score of 53. Singapore scored 85 with a ranking of number 3 and Hong Kong is ranked number 14 with a score of 78.
Interestingly, both Singapore and Hong Kong are identified by many scholars as countries the South African anti-corruption framework must emulate. Another country South Africa is hoping to emulate with respect to combating corruption is Botswana, with the ranking of 34 and the score of 61. Botswana took the title of the second least corrupt country in the whole of Africa after Seychelles, which is ranked at number 28, while Somalia took the title of the world’s most highly corrupt country in the world and in Africa, ranked at number 180 and scoring only 10.
In fairness to titanic South Africa, one must also recognise that the CPI placed South Africa in the top 10 of the least corrupt countries in Africa. However, recognising this “decent” placement does not mean one should ignore or forget the fact that some of our very own institutions, including people at the executive level of government, spurned the recommendations of institutions like the Public Protector that sought to ferret out corruption. Others opposed the implementation of Advocate Thuli Madonsela’s remedial actions against corruption, maladministration and all the related rot. Truth be told, being in the top 10 means nothing when considered against the fact that our anti-corruption agencies need to be admitted to ICU – they are acutely diseased and sick.
Responding to the appalling 2018 CPI results, President Cyril Ramaphosa said that “(t)his should now be the last time that South Africa is described like that. We are going through a very cathartic moment where all the wrong things are spewing out”. It would have raised eyebrows had the First Citizen and the Commander-in-Chief of South Africa not expressed concerns with the score and the rating South Africa received. Not that it is anything new because the country has not been consistent in improving its corruption-free character. For instance, in 1996 South Africa achieved a high score of 57 (56.80 Points) and it fell 10 points between 2007 and 2011 from a rating of 5.1 to 4.1. And the 2018 CPI remains the same as that in 2017.
A number of reasons can be noted for this unstable anti-corruption performance, particularly the country’s 2011 worst CPI ranking since the CPI was established. Notable amongst these include the cost of corruption involving government procurement reported at around R30 billion each year, according to the then head of the Special Investigating Unit (SIU) Willie Hofmeyr in his report to the Portfolio Committee for Justice and Constitutional Development in October 2011. At the time the SIU was investigating 588 procurement contracts valued at R9.1-billion and about 360 conflict-of-interest matters valued at R3.4-billion.
The year 2011 also saw two Cabinet members released from duty following allegations that they had been compromised and conflicted in that they misused their powers for irregular and illicit gains for themselves and/or some people connected to them.
The late Sicelo Shiceka, then Minister for Cooperative Governance and Traditional Affairs, was fingered for misusing state resources allegedly to visit a girlfriend in a Swiss prison. The details of his transgressions are contained in the Public Protector of the Republic of South Africa, report In the extreme: Report No.11 of 2011/12 of the Public Protector on an investigation into allegations of a Breach of the Executive Ethics Code by the Minister of Cooperative Governance and Traditional Affairs, Mr Sicelo Shiceka, MP.
Gwen Mahlangu-Nkabinde, then Minister of Public Works, was also fingered for her role in the awarding of two tenders worth R1,116 billion and R604 million respectively to a politically well-connected businessman for the lease of new premises for the SAPS at above reasonable market price. This matter was also investigated by the Public Protector and resulted in a scathing report titled Against the Rules Too, Report of the Public Protector in terms of Section 182(1) of the Constitution of the Republic of South Africa, 1996 and Section 8(1) of the Public Protector Act, 1994 on an investigation into complaints and allegations of maladministration, improper and unlawful conduct by the Department of Public Works and the South African Police Service (SAPS) relating to the leasing of SAPS accommodation in Durban, 2011.
Another revelation in November 2011 was the story by The Mail & Guardian newspaper about extensive upgrades at the homestead of former President Jacob Zuma in Nkandla at the cost of R60-million at the time. Also, seven complaints lodged between 13 December 2011 and November 2012 with the Public Protector regarding Nkandla renovations. These triggered an investigation by the then Public Protector Thuli Madonsela in 2013, and her report titled Secure in Comfort: Report by the Public Protector on an investigation into allegations of impropriety and unethical conduct relating to the installation and implementation of security measures by the Department of Public Works at and in respect of the private residence of President Jacob Zuma at Nkandla in the KwaZulu-Natal province, Report No: 25 of 2013/24, March 19 2014, revealed that the former president and his family had unduly benefited from upgrades which has escalated from R60-million to R246-million in costs. The notoriety of Secure in Comfort was that it took the intervention of the Constitutional Court in 2016 to conclude the former President and his Parliament violated the Constitution by repeatedly ignoring the Public Protector’s findings and arguing that they were not enforceable. Furthermore, the Nkandla saga was identified with the slogan “Bring Back the Money” and the consequent chaotic handling of the sittings of Parliament.
The fact that South Africa’s 2018 CPI remains unchanged from 2017 is not a surprise or rather should not be a surprise. By now it is common knowledge that corruption is endemic in South Africa. Past and recent events, including various revelations about corruption and corrupt practices, indicate that public office/public service corruption could be a significant problem in South Africa.
There is no way that international corruption indexing institutions could have missed the events leading to an investigation into alleged improper and unethical conduct of the country’s executive, and possibly corrupt award of state contracts and benefits to the Gupta family’s businesses, for example. The resultant Public Protector State Capture Report of 14 October 2016 was also widely revealed. And it precipitated the setting up of the Zondo Commission on State Capture.
The Zondo Commission has already revealed that corruption is a pernicious phenomenon and a challenge that the country must deal with. The testimonies at the commission, particularly those relating to the Watsons and the Guptas, postulate state capture as “characterised by complex networks and interpenetration of business, politics, administration, police and security forces, and sometimes NGOs, which colonise the interface between ostensibly different spheres, between public and private”. You have single individuals or families exerting undue and illegal control over both state and economy. Also, oligarchies with a complex range of networks and corrupt and reciprocal relations have been formed.
The CPI rating must mean and spur many things for South Africa, including putting in place a concerted, comprehensive and holistic approach to combating the spate of corruption engulfing South Africa as a corrective response. There are innumerable actions/approaches/interventions that can be considered. Below is a sample of the many.
Prosecution and consequence management
First and foremost the authorities must begin with visiting consequence management on those who are involved in corrupt activities, including the corrupt leadership, especially at government/executive level. Sadly, our beloved NPA has expressed its unwillingness to exercise its prosecutorial powers and functions until the Zondo Commission is done and dusted.
What if the Commission takes a decade to complete as has happened in State Capture investigations in some countries? This reluctance to prosecute happens despite the publicly known importance of the NPA to revive and maintain its prosecutorial integrity, which in my view could benefit from decisively dealing with the rampant selling and purchasing of political and government’s administrative decisions in a broad sense.
One would have expected the NPA to independently investigate these allegations and, where applicable, begin a prosecuting process. I would have expected institutions like the NPA and other law enforcement agencies including the SAPS, the Hawks and IPID to appreciate the fact that perceptions of their complicity in the rampant corruption are taking place against the background of, and as part of, a broader public disillusionment with the criminal justice system.
Historical precedence indicates that some jurisdictions take the issue of corruption seriously, particularly political corruption and executive corruption. For instance in the United States case of United States v Kenny International Corp (Cr No 79-372), DDC, ﬁled Aug 2, 1979 a New York corporation, Kenny International Corp, was convicted of offering Sir Albert Henry (the then Premier of the Cook Islands) and the Cook Island Party (then the majority political party in the Cook Island Legislative Assembly) ﬁnancial assistance to the value of NZ$337,000 in connection with his re-election through using an aircraft to ﬂy voters from New Zealand to the elections in the Cook Islands. The intention was for Sir Albert to ensure that Kenny International Corp secured the renewal of an agreement of its exclusive promotion, distribution and sale of Cook Islands postage stamps throughout the world.
Fortunately, as part of his views on the CPI and the on-goings at the Zondo Commission Ramaphosa emphatically declared that “(t)here should be real serious action taken. It’s important that we hold hands and fix our country. We should not be a country that is defined by acts of corruption that are completely out of kilter with the value system we put for ourselves.” And nothing can be more serious an action than the president leading a clear warning to institutions such as the NPA that a decision to keep in abeyance the investigation of those alleged to have been perpetrators and co-perpetrators, conspirator and co-conspirators, accomplices to State capture, and accessories after the fact is wrong. It is tantamount to dereliction of duty, assault on democracy and human rights.
Investigation and prosecutions must be commenced without any further delay if we are serious in our determination that “(t)his should now be the last time that South Africa is described (as one of the corrupt countries in the world)” and committed to our vow that there will “be real serious action taken” to ensure that South Africa is not “defined by acts of corruption that are completely out of kilter with the value system we put for ourselves”. The country’s executives that are found to have been involved in public corruption must be severely punished. So are the members of the public, companies doing business with the government and owners/directors/board members of companies doing business with the government that are a party to these corrupt activities. Perhaps South Africa must consider following countries like China with severe penalties for corruption, except of course that unlike South Africa, China has no constitutional bar to impose the death penalty for corruption.
Recalibration of anti-corruption agencies and other state units
President Ramaphosa has called for the “recalibration” of state institutions and the appointment of individuals to these institutions who are fit and proper. “We are headed in a direction where we are rebuilding the integrity of our country and reforming our institutions and addressing SOEs. The efficacy of our SOEs needs to be recalibrated,” said Ramaphosa. According to my prefatory observation “recalibration” reforms – and I am assuming here an earnest, transparent, open process to rethink our anti-corruption agencies and relevant other institutions including membership of the Parliamentary integrity committees – may positively affect the anti-corruption crusade and succeed where many have failed.
Recalibration must not be another exercise that will produce paper tigers; or a mere act of musical chairs of heads of institutions and state-owned enterprises (SOEs). The appointment of Advocate Shamila Batohi as the head of the NPA, for instance, makes me believe that with people like her at the helm of the NPA the country’s prosecutorial prowess will be re-orientated. However, the fight against corruption and instilling prosecutorial ethics, integrity and efficacy cannot be achieved effectively by just relying on the competence and character of Advocate Batohi, supported by her well-intentioned prosecutors and investigators. Otherwise, she will fail dismally. Issues of organisation effectiveness and co-operative governance, and the apolitical operational environment of these organisations must be addressed.
Better control of public resources
Writing about accountability and transparency to fight against corruption, Brusca, Rossi & Aversano(Brusca, Rossi & Aversano. Accountability and Transparency to Fight against Corruption: An International Comparative Analysis. 2018. Journal of Comparative Policy Analysis: Research and Practice, 20:5, 486-504) correctly noted that “in the public domain, the availability of resources that are not directly controlled by a single owner can create the perfect ground for corruption through, for example, large procurements and major public works projects, tax administration, debt management, customs and ill-designed privatisation of state-owned enterprises”. Their observation rings true in the South African context.
Public procurement and tenders came in handy for the corrupt and provided a fertile ground for corruption. These authors further observed that “(i)n the domain of democratic theory, corruption is seen as a violation of the basic norms of the democratic process which disempowers citizens. In this perspective, the role of strong institutional control and good auditing has been highlighted as a way to prevent bad politicians from diverting resources”. Conducting a nationwide audit on all contracts with the State – past and present contracts – will be helpful towards achieving and maintaining control of public resources. So is the Open Budget Index (OBI) – which is the index used to measure the disclosure of budgetary reporting and transparency. Another interesting observation by Brusca, Rossi & Aversano is that “countries that have a higher OBI score have better positions in the Corruption Perception Index of Transparency International and the World Bank Governance Indicator of Control of Corruption”.
The public too must build momentum towards holding the South African Criminal Justice System, the government and its executives to virtues of accountability and transparency – even if it means having recourse to public interest litigation and private prosecution to spur actions against corruption. Thecultural, economic and political characteristics of the country should never be allowed as a safeguard for corruption and corrupt activities. Robert Klitgaard once explained corruption in a simple formula: Corruption = Monopoly + Discretion – Accountability (in International Cooperation Against Corruption, International Monetary Fund 4 (March h 1998). South African government holds a monopoly over the public purse and many other public resources, and when the government, its executives and other public office bearers are not publicly held accountable the fight against corruption will be lost. Active and passive corruption by government officials will become a normal occurrence.
In conclusion, let us always remember that “Corruption can be likened to a cancer. It operates insidiously destroying the moral fibre of the nation. When it is discovered the damage has already been done. Whilst the particular act of corruption may be excised, just as a malignancy may be removed in a surgical intervention, society is not what it was prior to the corrupt act. The roots of justice and integrity, so vital in a fair and democratic society, have been permanently scarred by the corrupt act. The moral fibre of society has to be re-built after the excision of the corruption”. This important and frank observation was made by the South Gauteng High Court, Johannesburg, in the infamous case of S v Selebi (Judgment on sentence) (25/2009)  ZAGPJHC 58 (3 August 2010).
- Professor Dr Omphemetse S Sibanda is a Professor of Law at the Faculty of Management and Law at the University of Limpopo.
OPINION: Omphemetse S Sibanda