By Chantelle de Sousa

The SADC Lawyers’ Association hosted a workshop late last year to highlight and discuss research into the implementation of the SADC Protocol against corruption by member states. Participants included lawyers from all over southern Africa and representatives from trade unions and non-governmental organisations. Corruption was described as a ‘chronic disease’ in the region by one of the participants and no country had been spared its negative impact, with corruption causing problems such as denying school children text books to presidents benefitting from multi-million dollar business deals. The problem of corruption persists despite numerous initiatives at the international, regional and domestic level to combat the problem. The purpose of the study was to determine the state of implementation of compliance with the Protocol including the implementation of legislation and policy at the domestic level, the efficacy of national anti-corruption institutions and the effectiveness of the Protocol in curbing challenges such as illicit financial flows. A point was made during the workshop that lawyers have the ‘inclination to want to change the law’, however, at present there are many treaties and mechanisms available and there is the possibility to work within the framework, which already exists. It is the duty of lawyers, to familiarise themselves with these treaties and mechanisms and hold their leaders and institutions accountable.

The Protocol was adopted by the SADC in 2001 amidst concerns of the adverse and destabilising effects of corruption throughout the world on the culture, economic, social and political foundations of society. The Protocol emphasised that member states have the responsibility to hold corrupt persons in the public and private sectors accountable and to take appropriate actions against those who commit acts of corruption. The Protocol also hopes to promote cooperation among states in fighting corruption and greater regional integration. The Protocol has been ratified by 13 member states and the only two states not to have ratified the Protocol are Madagascar and the Seychelles. However, ratification has not necessarily resulted in domestication and implementation of the Protocol.

One of the purposes of the Protocol is the prevention, detection and prosecution of corruption in the public and private sector. This needs to be done through legislative and other measures in which acts of corruption are criminalised, investigated and prosecuted, as well as setting out the mandate and authority of anti-corruption institutions. Of the 13 member states examined, all of them, to a large degree, have legislation that defines and criminalises acts of corruption, calls for the investigation and prosecution of corruption in their jurisdictions. However, Mozambique fails to address issues such as embezzlement, money laundering and illicit enrichment. The Protocol also provides that each state party undertakes to adopt measures that will protect individuals, who in good faith, report acts of corruption. Legislation in Mozambique, Namibia and Swaziland fails to protect whistle blowers, however, other jurisdictions like South Africa guarantee the protection of whistle blowers through witness protection programmes.

State parties are also required to set up anti-corruption institutions for implementing mechanisms to prevent, detect and eradicate corruption. All states examined have a body tasked to investigate acts of corruption, in fact most have multiple bodies tasked to tackle corruption. This has created problems with replication of functions and conflict among the different institutions. For example in South Africa, the Special Investigating Unit was of the view that there was a lack of communication between the different bodies tasked to tackle corruption. Further problems with the anti-corruption bodies include a lack of independence in carrying out their functions. Notable concerns were those anti-corruption institutions that function within the ministry of the presidency as is the case in Botswana. Political interference is also a problem especially in the appointment process of the head of the anti-corruption institution as in most jurisdictions the head is a President appointee. Other issues include the lack of capacity for institutions to carry out the necessary investigations and day-to-day operations. This included problems such as a lack of funding and technical expertise as institutions were understaffed and poorly trained. Most of the anti-corruption institutions do not have the prosecutorial authority to pursue corruption matters and the decision to prosecute is usually left with the Director of Public Prosecutions (DPP). The concern with relying on the discretion of the DPP is that its independence is often questionable as he or she is usually appointed by the president. Many people in the SADC region are of the view that there has not been enough effort in the prosecution of those in office or of the influential and powerful and that efforts have usually only resulted in the prosecution of ‘small fish’. These factors all point to a lack of political will by state members to effectively and efficiently combat corruption.

The Protocol also requires states to adopt mechanisms that encourage wider sectors of society such as the media and civil society to participate in preventing corruption. Most member states had some sort of mechanism to allow for public participation, for example, in Tanzania there is active engagement by the state with local communities, religious leaders and musicians through activities such as public seminars, talk shows, exhibitions and anti-corruption club activities. Other activities include public awareness through the inclusion of the understanding and combatting of corruption in the school curriculum that can be found in Swaziland and Zambia. However, in other countries such as Angola and the Democratic Republic of the Congo, there is a clampdown by the state on any anti-corruption activities by the public such as detaining and harassing journalists.

Lastly, states agreed to promote and facilitate cooperation among state parties in support of the prevention, detection and prosecution of corruption in all sectors and development and harmonisation of anti-corruption policies and domestic legislation of the state parties. One of the bodies tasked with strengthening and enhancing co-operation among states is the Southern African Forum against Corruption (SAFAC). Although all of the state members are party to SAFAC, the difficulty in achieving cooperation among state parties is the inability of the members to develop their internal capacity and therefore be in a position to co-operate with states on issues such as extradition, judicial co-operation and the harmonising of policies and domestic legislation. A further problem that is hampering cooperation among member states is the creation of tax havens in the SADC as we find in Mauritius. This has encouraged illicit financial flows from major economies in Europe, Asia and Africa and is denying States to essential tax revenue. However, the SADC Protocol is silent on the action to be taken in this regard.

The study pointed out that generally, there is a legal and institutional framework to combat corruption as well as mechanisms for the public to become involved in anti-corruption activities. Issues remain such as the independence of anti-corruption institutions and their financial and resource capacity. However, underpinning the challenges that are present in each of the jurisdictions examined is the lack of true political will among the leadership in all SADC countries to address the problems that exist. The preamble of the Protocol, it explicitly recognises that demonstrable ‘political will and leadership are essential ingredients to wage an effective war against the scourge of corruption’. However, the responsibility does not lie solely at the feet of our leadership; the Protocol expressly recognises the importance of the public getting involved in the fight against corruption. It is with this responsibility in mind that the participants wish to further get involved in tackling corruption and work in collaboration with other organisations from across the region. It is the responsibility of every individual in the SADC to avoid engaging in corrupt practices and also to report corruption to the authorities and even the media. Lawyers play a special role in this, as they have the knowledge and skills to raise public awareness on issues of corruption and actively hold the leadership of the SADC accountable.

Chantelle de Sousa is the Programmes Officer at the SADCLA.

This article was first published in De Rebus in 2015 (April) DR 12.