Journal of Anti-Corruption Law

A Tale of Corruption: State Capture, the South African Experience

Donald Jacobs — 2024-12-31

On 9 October 2003, South Africa became a signatory to the United Nations Convention Against Corruption (UNCAC), which was adopted by Resolution 58/4. South Africa ratified the Convention on 22 November 2004. At the time, the Secretary-General of the United Nations stated that the adoption of UNCAC sent a clear message: The international community was determined to prevent and control corruption. Fast forward to June 2022, Chief Justice Raymond Zondo completed the Zondo Commission of Inquiry into state capture. This Commission investigated what became known as state capture, focusing on a period after South Africa had already signed and ratified the UNCAC. I draw this comparison early in my address to give you food for thought as we proceed to explore the similarities and to understand what truly transpired during the state capture era, a unique manifestation of corruption in the South African context.

The Book Review: Digital Media and Grassroots Anti-Corruption: Contexts, Platforms and Data of Anti-Corruption Technologies Worldwide by Alice Mattoni

Ntandokayise Ndlovu — 2024-12-31

PERCEPTIONS ON HUMAN TRAFFICKING: A REFLECTION OF FOREIGN POLICY RHETORIC IN POLAND

Toghrul Iskandarov — 2024-08-15

FIGHTING CORRUPTION IN TANZANIA’S ENERGY SECTOR: LESSONS FROM THE RICHMOND AND IPTL/ESCROW SCANDALS

Lukiko Lukiko — 2024-08-15

Tanzania expects an energy sector boom soon. However, government inaction over corruption scandals raises serious doubts about its capacity to overcome this vice. This article revisits the Richmond and Independent Power Tanzania Limited (IPTL) and Escrow scandals to illustrate how the government handled them and discuss the implications of such approach to Tanzania’s anti-corruption strategy. Analysis is based on documentary review of official reports, press reports and scholarly publications. The article is useful for understanding the dynamics of fighting grand corruption in Tanzania and the reforms that need to be adopted to control this conundrum in the energy sector.

CATCHING THE SLIPPERY FISH: WILL LIFESTYLE AUDITS NET THE CORRUPT IN UGANDA

Zakaria Tiberindwa — 2024-08-15

Uganda is one of the African countries that have embraced lifestyle audits as a tool against corruption in the public service. In November 2021, the Inspector General of Government announced that the Inspectorate of Government would subject public officials to lifestyle audits as a means to fight corruption in government. There is evidence that when lifestyle audits are effectively implemented, they can be a viable anti-graft mechanism. Yet, resource limitations as well as other legal and policy constraints may complicate the implementation of lifestyle audits. Moreover, their constitutional legitimacy may be contested due to the intrusion on the privacy rights of individuals who are subjected to such audits. Also, the shifting of the burden of proof to those implicated to explain any disparities in their wealth and sources of income may infer a negation of the presumption of innocence. Furthermore, there have also been suggestions that they may encourage arbitrary deprivations of property. In Uganda, there has been scanty academic discourse on the likely legal and policy challenges that may constrain the effective implementation of lifestyle audits to counter corruption. This paper therefore seeks to discuss some of the legal and policy limitations that may constrain the implementation of lifestyle audits in Uganda and make suggestions on how some of the limitations can be overcome in the circumstances. The paper reviews various laws, policies and jurisprudence regarding lifestyle audits, as well as books and articles on the subject.

Applying the Routine Activities Theory to Cybercrime: A ‘Cyber’ Capable guardian.

Sagwadi Mabunda — 2024-08-15

This paper presents the third constitutive element of the Routine Activities Theory, the capable guardian, as a possible response to combatting cybercrime. It suggests a re-imagining of the concept of the capable guardian from its original form to what this study calls the cyber capable guardian. It argues that in order to combat cybercrime successfully, it is necessary to introduce artificial intelligence Technology in the form of machine learning to create a cyber capable guardian which will perform functions that a human capable guardian would not be able to perform. Finally, it discusses section 52 of the Cybercrimes Act, which provides for the Designated Point of Contact (DPoC). It argues that the DPoC would be a suitable capable guardian if it were to be created as an independent agency which is incorporated as a private company in terms of The Companies Act 71 of 2008. It further argues that the DPoC should be established with the chief mandate of combating cybercrime through the creation and operation of the Cyber Capable guardian.

THE REALISATION OF MEDIA FREEDOM AS A TOOL TO COMBAT CORRUPTION IN ZIMBABWE: LESSONS FROM SOUTH AFRICA

Windell Windell Nortje — 2024-09-12

Corruption is rife in South Africa and Zimbabwe. The media plays an important role in exposing corruption. In South Africa, the media exposed a multi-billion-dollar corruption saga in 2016 involving the former president and his business associates which the media dubbed “state capture”. Most of the state-owned entities were captured and served as vehicles for grand corruption. Today, South Africa has yet to recover from the saga exposed in 2016. In fact, the incumbent South African president, Cyril Ramaphosa, has also been under investigation for money laundering and corruption while simultaneously reaffirming his ruling party’s fight against corruption. The media continues to keep the executive on its toes and should be praised for their efforts. South Africa’s neighbour, Zimbabwe, has a different outlook. While corruption in Zimbabwe is even worse than in South Africa, the media does not have the similar freedom to expose corruption. There exists a constant fear of retaliation for blowing the whistle on corrupt activities. It is common for journalists to be detained for speaking out. Media laws should be adopted to affirm media freedom. Instead they have often been adopted, especially in Zimbabwe, to demonise the media. This paper essentially analyses the importance of the media in exposing corruption in Zimbabwe and how their role can be protected and enhanced. This paper makes an important contribution towards the protection of media freedom in light of strengthening anti-corruption efforts in South Africa and Zimbabwe. It is one of the first studies to examine the achievements and shortcomings of media freedom in relation to corruption in South Africa and Zimbabwe. The article will commence by examining conceptual aspects regarding corruption and the role of the media. It will then examine the regulatory framework governing the rights of media in both jurisdictions. What follows next is an analysis of several case studies amplifying the problems faced by the media in Zimbabwe. This is followed by analysing the lessons Zimbabwe can learn from South Africa's approach to media freedom. The article will conclude by providing several recommendations.

THE ABUSE AND MISUSE OF PROSECUTORIAL DISCRETION IN HIGH-PROFILE CORRUPTION CASES IN NIGERIA: A CALL FOR A PARADIGM SHIFT

Aaron Salau — 2024-09-02

This article focuses on the place of prosecutorial discretion in the Nigerian context and asks whether and to what extent prosecutorial discretion in high-profile corruption cases involving public officials ought to be guided and constrained by the principles of impartiality, accountability and transparency. In Nigeria, the Attorney General of the Federation (and each state) has the discretion to institute, take over, and discontinue criminal prosecution against any person subject to the constitutional caution to “have regard to the public interest, the interest of justice and the need to prevent abuse of legal process” in its exercise. Despite this constitutional caution, the courts have held that the exercise of such discretion is immune from judicial review. Lately, cases involving the political class and public servants accused of extensive theft of public funds and corrupt practices have been plea-bargained with ludicrous sentences being handed down by Nigerian courts. Considering the widely held belief of political interference, bias and prejudice in these prosecutorial decisions and the damage done thereby to the rule of law, a critical reflection surrounding prosecutorial discretion in Nigeria is imperative. This article draws on doctrinal as well as comparative legal methods to argue that the available devices to constrain prosecutorial discretion in Nigeria do not go far enough to guarantee fairness and accountability and ought to be reformed. The South African model despite its limitations is associated with transparency and accountability and provides an alternative avenue for reform of prosecutorial discretion in Nigeria.

ENCOURAGING WHISTLEBLOWERS OF CORRUPTION IN SOUTH AFRICA: A CRITICAL EVALUATION OF MONEY REWARDS

Johandri Wright — 2024-09-02

In South Africa, as in many other countries, corruption and related criminal activities are deeply rooted and seem to cripple municipalities and the public sector in general. Studies have shown that whistleblowing is an essential tool that contributes to transparency and thus helps to control corruption. Three methods are available to a government to encourage whistleblowers to come forward: Protecting whistleblowers, creating an ethical government culture, and rewarding whistleblowers. It is therefore not surprising that the Commission of Inquiry into State Capture recommended that the South African government consider introducing money rewards for whistleblowers. This recommendation and the harsh reality that many whistleblowers have lost their lives in South Africa justify a more in-depth investigation into money rewards for whistleblowers.
Research done by Maslen for Transparency International of foreign jurisdictions shows that money rewards (and the resulting increase in reports) can be a cost-effective and time-saving method to bring perpetrators to justice. On the other hand, some scholars such as Aygare and Aidoo-Buameh warn that money rewards could exacerbate existing dysfunctional organisational cultures by fuelling distrust among colleagues in the work environment. Aside from exploring whether money rewards would be beneficial, the current legal position involving whistleblower rewards must also be considered.

Harnessing OSINT to enhance the investigation of economic crimes

Claire Adionyi — 2024-12-31

Economic crimes are considered one of the fastest-growing global threats. As noted by UNODC, this threat is increasingly enabled by technological advancements such as electronic banking and expanded internet access. While these advancements facilitate economic crimes, this paper argues that they also provide new avenues for economic crime investigators to harness the power of open-source intelligence (OSINT). Defined as publicly available information that is accessible to any member of the public without the need for special legal status or authorisation, OSINT offers a wealth of untapped evidence that can enhance traditional investigative methods significantly.

This paper explores how OSINT, defined as methods of gathering and analysing open-source information can be leveraged to supplement and transform traditional approaches to economic crime investigations. By relying on the hypothesis that OSINT can significantly augment the range and accessibility of available evidence, this research proposes that the integration of OSINT into conventional investigation techniques will result in a more efficient and comprehensive economic crime investigation. Based on a desk study of both primary and secondary data, this paper aims to demonstrate how OSINT tools and strategies can provide innovative solutions to bolster the ongoing fight against economic crimes.

PRIVATE PROSECUTION AS A MEANS OF VINDICATING FUNDAMENTAL RIGHTS AND REINFORCING ACCOUNTABILITY IN A NASCENT CONSTITUTIONAL DEMOCRACY

Bongani S Nkosi — 2024-12-31

The dawn of democracy had not only heralded respect and protection of human and fundamental rights, but also grand scale corruption committed among others by politicians and civil servants. Notwithstanding the highest rate of corruption by representatives of the public in almost all spheres of government, state owned enterprises and government departments, the rate of prosecution is truncated. Corruption inhibits the state from providing basic services such as water, electricity, access to healthcare, access to housing, infrastructure, and sanitation. The scourge of corruption affects every aspect of human life and has heightened even with the emergence of the corona virus pandemic.

Corruption need not be grand scale to be reported and or prosecuted. Instances of corruption may include a councillor selling food parcels intended to benefit flood victims, a public officer being paid to employ civilians in the Extended Public Works Program, a traffic officer accepting a bribe from a motorist in return for not issuing a ticket for skipping a stop sign, a magistrate accepting sexual favour from a litigant in a case he presides over. In the event the National Prosecuting Authority declines to prosecute corruption, private prosecution remains the only recourse that civilians may resort to vindicate fundamental rights in a nascent democracy.