Helen Suzman Foundation
Brief
FIGHTING CORRUPTION – THE HUMAN RIGHTS APPROACH
The South African Institute for Advanced Constitutional, Public, Human Rights and International Law hosted a conference on corruption and human rights. This brief provides an overview of the ideas discussed relating to a human rights approach to addressing corruption effectively.
Introduction
On Thursday, 1st December 2016, the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) hosted a conference on corruption and human rights. The day was filled with many speakers, each with their own aspect or perspective on this link between corruption and human rights violations. Professor Raj Kumar who is an expert in this field gave the keynote address. The other speakers included Alexander Beyleveld, Khulekani Moyo, Mispa Roux, John Paul Ongeso, Adv Paul Hoffman, Paul Kariuki, and Shanelle van der Berg. The following broad topics were discussed: the impact of corruption on socio-economic rights, conceptualising corruption, and mechanisms for addressing corruption. This brief will look at what was discussed at this conference.
What is Corruption?
A common definition of corruption is the abuse of public power for private gain. Corruption was described simply as theft from the poor because money that is earmarked for people who need assistance is used for private benefit. Corruption may have an impact on all persons, but it disproportionately affects the poor. Two characteristics of corruption were discussed – first, there needs to be two or more parties to participate (the giver and the receiver). Second, the activities take place in secret, as it is a crime of stealth and secrecy. It is this second characteristic which makes investigation and prosecution particularly difficult.
Corruption is a complex phenomenon and is considered a crime in most countries. Despite this, corruption continues to plague countries worldwide. This is a paradox as we have an international, regional and national framework of laws to combat and prevent corruption, yet corruption only seems to be getting worse. The lack of impact of the criminal justice system on curbing or eradicating corruption is indicative that there needs to be another approach. This does not mean replacing the criminal justice system approach but rather it should run along side it. This approach is the human rights approach.
What is the Link Between Corruption and Human Rights?
Corruption usually indirectly violates human rights as it denies the benefit of fundamental goods and services to persons who are ordinarily entitled to such goods and services. This denial results in a lack of realisation of human rights and is caused by the diversion of money and resources, which is allocated to provide these constitutionally obligated goods and services, to lining the pockets of the public officials responsible. The denial limits or negates fundamental human rights. Generally, corruption negatively impacts socio-economic rights and hampers development but corruption can also directly violate human rights as it violates the right to equality and discriminates against individuals.
Why the Human Rights Approach?
The human rights approach allows one to look at the problem of corruption through a different lens and it adds a new perspective to the fight against corruption. Corruption occurs at different phases or levels. Programmes and policies aimed at enhancing socio-economic rights can be designed in such a way as to make them more or less susceptible to corruption. Accordingly the fight against corruption should not begin only once corruption has occurred, as this can be seen as only crisis management. Instead one needs to find a way to prevent corruption at each level – starting at what allows corruption.
The human rights approach focuses on the victims rather than the perpetrators and it allows one to confront corruption at these different levels by building public policy into the fight against corruption. By approaching corruption from this different angle it adds human rights’ norms and institutions to the arsenal of weapons to combat corruption. South Africa already has the framework to combat corruption but in order for it to be effective we need to reassert the values which are contained in the Constitution.
What Mechanisms can be used to Address Corruption?
The courts only have a limited impact on corruption and a key factor in combating corruption is access to justice. We need a holistic approach if we are to effectively eradicate corruption. There are many anti-corruption efforts such as conventions, legislation, the Public Protector and access to information.
Good governance in all sectors is not negotiable and in order to achieve this citizens must be empowered to hold the government to a higher level of accountability. Empowerment of the people is often overlooked in the fight against corruption and the right to information is underestimated. People will become empowered through education and access to information. A culture of secrecy only breeds corruption and therefore the necessary first step is to create a culture of transparency through access to information. The role of civil societies and media in enhancing good governance by exposing corruption, putting pressure on the government to implement anti-corruption machinery and to govern in a transparent and accountable manner with integrity cannot be overstated. Transparency, accountability and integrity must become a lifestyle if we are to effectively eradicate corruption.
A further mechanism includes the creation of an Independent Commission Against Corruption or an Integrity Commission. This commission should be established through a constitutional amendment and in order for such commission to work efficiently and effectively it should at least have the following features: political and operational independence, satisfactory training of all staff involved, adequate resources, and security of tenure.
Another mechanism suggested to combat corruption was a sanction system, similar to the World Bank’s system, where no more money would be allocated unless a paper trail was provided showing how all the money was spent.
Conclusion
Corruption is a serious concern and it is rampant throughout South Africa. The conference provided a good opportunity for dialogue on how to approach this problem and find solutions. It is evident that the current anti-corruption regime needs to be reconsidered and improved if we are to have any hope of eliminating corruption. A human rights approach, running parallel to the criminal justice system, is certainly an excellent place to begin enhancing the fight against corruption.
Chelsea Ramsden
Legal Researcher
chelsea@hsf.org.za
