Effectiveness of Anti-Corruption Agencies in Southern Africa: Angola, Botswana, DRC, Lesotho, Malawi, Mozambique, Namibia, South Africa, Swaziland, Zambia and Zimbabwe

Osisa

Description

With reportedly over USD100 billion lost annually through graft and illicit practices, combatting corruption in Africa has been challenging. However, laws and policies at the continental, regional and national levels have been promulgated and enacted by African leaders. These initiatives have included the establishment of anti-corruption agencies mandated to tackle graft at national level, as well as coordinate bodies at regional and continental levels to ensure the harmonisation of normative standards and the adoption of best practices in the fight against corruption.Yet, given the disparity between the apparent impunity enjoyed by public servants and the anti-corruption rhetoric of governments in the region, the effectiveness of these agencies is viewed with scepticism. This continent-wide study of anti-corruption agencies aims to gauge their relevance and effectiveness by assessing their independence, mandate, available resources, national ownership, capacities and strategic positioning.These surveys include evidence-based recommendations calling for stronger, more relevant and effective institutions that are directly aligned to regional and continental anti-corruption frameworks, such as the African Union Convention on Preventing and Combatting Corruption (AUCPCC), which the ten countries in this current report – Angola, Botswana, DRC, Lesotho, Malawi, Mozambique, Namibia, South Africa, Swaziland, Zambia and Zimbabwe – have all ratified.

Sujets

• Politique

Informations

• Publié par: African Minds
• Date de parution: 13 avril 2017
• Nombre de lectures: 1
• EAN13: 9781928332213
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

Effectiveness of Anti-Corruption Agencies in Southern Africa Angola, Botswana, DRC, Lesotho, Malawi, Mozambique, Namibia, South Africa, Swaziland, Zambia and Zimbabwe

A review by Open Society Initiative for Southern Africa (OSISA)

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Effectiveness of Anti-Corruption Agencies in Southern Africa Angola, Botswana, DRC, Lesotho, Malawi, Mozambique, Namibia, South Africa, Swaziland, Zambia, Zimbabwe

A review by Open Society Initiative for Southern Africa (OSISA)

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Published by the Open Society Initiative for Southern Africa and African Minds OSISA President Place 1 Hood Avenue Rosebank Johannesburg, 2196 South Africa www.osisa.org African Minds 4 Eccleston Place, Somerset West, 7130, Cape Town, South Africa [e-mail] www.africanminds.org.za  2017 All contents of this document, unless speciîed otherwise, are licensed under a Creative Commons Attribution Non-Commercial 4.0 International Licence

ISBNs Print: 978-1-928332-21-3 EBook: 978-1-928332-22-0 e-Pub: 978-1-928332-23-7 Copies of this book are available for free download at www.africanminds.org.za and www.osisa.org ORDERS To order printed copies within Africa, please contact: African Minds Email: [e-mail] To order printed copies from outside Africa, please contact: African Books Collective PO Box 721, Oxford OX1 9EN, UK Email: [e-mail]

CON T EN T S

Preface_____________________________________________________ iv

Acknowledgements____________________________________________ vii

1. General overview  _________________________________________________ 1

2. Angola Dr Helena Prata____________________________________________________ 21

3. Botswana Dr Gape I Kaboyakgosi ______________________________________________ 42

4. Democratic Republic of Congo Prof. Andre Mbata Mangu___________________________________________ 72

5. Lesotho Dr Motlamelle Anthony Kapa _______________________________________ 104

6. Malawi Dr Henry Chingaipe________________________________________________ 132

7. Mozambique _________________________________________________________________ 167

8. Namibia Prof. Lesley Blaauw________________________________________________ 191

9. South Africa Dr Ralph Mathekga________________________________________________ 221

10. Swaziland Ms Maxine Langwenya_____________________________________________ 262

11. Zambia Mr Goodwell Lungu________________________________________________ 284

12. Zimbabwe Ms Teresa Mugadza _______________________________________________ 330

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PREFACE

This study complements previous studies that the African Regional Oïce (Af RO) has supported in East Africa in partnership with the Open Society Initiative for East Africa (OSIEA), as well as in West Africa in partnership with the Open Society Initiative for West Africa (OSIWA), respectively. Overall, the Open Society Foundations’ focus on corruption trends and impact lies in lending support to the îght against corruption by supporting advocacy work and the development of laws, policies and institutions to eectively deter, detect and punish corruption. At OSISA, this work falls under the Democracy and Governance Cluster’s Private and Public Sector Accountability Programme. On 31 October 2003, in his capacity as United Nations secretary general, Koî Annan argued that: Corrupon ïs an ïnsïdïous pague ha has a wïde range of corrosïve eecs on socïees. I undermïnes democracy and he rue of aw, eads o vïoaons of human rïghs, dïsors markes, erodes he quaïy of ïfe, and aows organïzed crïme, errorïsm and oher hreas o human securïy o lourïsh … Corrupon hurs he poor dïsproporonaey by dïverng funds ïnended for deveopmen, undermïnïng a governmen’s abïïy o provïde basïc servïces, feedïng ïnequaïy 1 and ïnjusce, and dïscouragïng foreïgn ïnvesmen and aïd. While it is true that no nation – rich or poor, big or small – is immune from corruption, and that in fact, corruption, small or grand – in all its various forms and manifestations – is as old as time, the poor in the developing world bear the brunt of corruption far more than any other population group. While the poor get poorer, go to bed hungry and are unable to fend for their families, the rich and powerful get richer and pursue lavish lifestyles, funded through corrupt means. Africa is not short of oftentimes instructive conventions that set out the broad parameters of confronting major democratic development challenges such as corruption. At the regional level, in July 2013, the African Union adopted the AU Convention on Preventing and Combating Corruption (AUCPCC), which seeks to, inter alia, ‘[P]romote and strengthen the development in Africa by each State Party, of mechanisms required to prevent, detect, punish and eradicate corruption and related oences in the public and 2 private sector’. The AUCPCC entered into force on 5 August 2006. The AU Advisory Board on Corruption (AUBC) has been established to advise on the implementation of

1 Unïed Naons secreary genera’s saemen on he adopon by he Genera Assemby of he Unïed Naons Convenon agaïns Corrupon, New York, 31 Ocober 2003. 2 Arce 2(1), AU Convenon on Prevenng and Combang Corrupon, Juy 2003.

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PREFACE

the AUPCC. In 2007, the AU adopted the African Charter on Democracy, Elections and Governance (ACDEG), which highlights the negative impact of corruption on elections, democracy and governance and enjoins AU member states to take the necessary measures to confront these challenges. At the sub-regional level,the SADC Protocol against Corruption (2001) seeks to ‘promote and strengthen the development, within each Member State, of mechanisms needed to prevent, detect, punish and eradicate corruption in the public and private 3 sector’.At national level, SADC member states have established various mechanisms – laws, policies and institutions – to ‘prevent, detect, punish and eradicate corruption’. This notwithstanding, corruption has not abated. Various studies indicate that corruption is on the rise and is getting sophisticated by the day. The most telling of these trends is the Transparency International’s Perception Index. Data from the 2016 index ranks Southern African countries out of 176 countries in the following order Botswana (35 down from 28 in 2015), Mauritius (50 down from 45 in 2015), Namibia (53 down from 45 in 2015), South Africa (64 down from 61 on 2015), Zambia (82 down from 76 in 2015), Lesotho (83 down from 61 in 2015), Malawi (120 down from 112 in 2015), Mozambique (142 down from 112 in 2015), Madagascar (145 down from 123 in 2015), Zimbabwe (154 down from 150 in 2015), Democratic Republic of Congo (156 down from 147 in 2015), and Angola (164 down from 163 in 2015). Granted this is a perception index, and only of perceptions of corruption in the public sector – however, perceptions do matter and are a reection of how those most aected perceive the impact of public sector corruption in their lives. Given that the private sector is not immune from corruption and oftentimes fuels public sector corruption, one can surmise that if private sector corruption were included in the index, the rankings could only worsen, especially in the resource-rich countries where the private sector in general and multinational corporations in particular, are active. In recent times, there has been a sharp focus on the trends and impact of illicit înancial ows (IFFs), especially in relation to public service delivery. In 2015, for instance, the African Union’s high-level panel on IFFs estimated that over the last 50 years, Africa lost in excess of USD1 trillion in IFFs and that annually, the continent loses USD50 billion through IFFs, which is roughly double the oïcial development assistance (ODA) that Africa receives every year. Clearly, these are conservative estimates drawn from oïcial annual import and export reports of countries. The AU’s high-level panel on IFFs notes that if proceeds of bribery and traïcking in drugs, people and îrearms were include the îgure would rise signiîcantly. A lot of work still needs to be done by legislatures, investigative, police and tax authorities, and justice systems to match the levels of sophistication in corruption and IFFs. It is against this background that this study was commissioned. The study sought to investigate indepth, the nature and character of on anti-corruption agencies (ACAs) in

3 Arce 2(1)(a), SADC Prooco agaïns Corrupon, 2001.

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EFFEC TIVENESS OF ANTICORRUPTION AGENCIES IN SOUTHERN AFRICA

southern Africa as well as reasons for their successes and failures. In view of the growing nature and sophistication of corruption, the study also sought to understand the relevance of existing legal frameworks for ACAs, their roles and means and preconditions necessary for their improved performance as well as alternative and/or complementary measures/ mechanisms in the SADC region. In short, the study sought to inform policy-makers, the donor community, civil society and others on what could to be done to accelerate the îght against corruption and reduce its impact on democratic development. It is hoped that the îndings from the study will improve and strengthen anti-corruption eorts in Angola, Botswana, DRC, Lesotho, Namibia, Malawi, Mozambique, Swaziland, South Africa, Zambia and Zimbabwe, and the region at large.

Siphosami Malunga Executive Director, OSISA

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ACKNOWL ED GEMEN T S

We thank the following persons for their contributions to this publication: Siphosami Malunga, OSISA Executive Director; Ozias Tungwarara, Programme Support Division Director, Africa Regional Oïce (Af RO); Jeggan Grey-Johnson, Programme Oïcer, Research and Advocacy, Af RO; Takawira Musavengana, OSISA Democracy and Governance Cluster Team Leader; Lusako Munyenyembe, OSISA Democracy and Governance Programme Oïcer and Glen Mpani, OSISA Democracy and Governance Programme Manager; Brenda Madisha, OSISA Democracy and Governance Programme Associate, as well as Benedict Komeke, OSISA Democracy and Governance Programme Associate, who assisted in organising the review and related meetings. We also extend our gratitude to all the chapter authors: Dr Helena Prata (Angola); Dr Gape I Kaboyakgosi (Botswana); Prof. Andre Mbata Mangu (DRC); Dr Motlamelle Anthony Kapa (Lesotho); Dr Henry Chingaipe (Malawi); Prof. Lesley Blaauw (Namibia); Dr Ralph Mathekga (South Africa); Ms Maxine Langwenya (Swaziland); Mr Goodwell Lungu (Zambia); Ms Teresa Mugadza (Zimbabwe); as well as the overall editor, Mr Job Agingu Ogonda. For professional reasons, the author of the Mozambique chapter requested not to be identiîed.

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1 GENER A L OV ERV IE W

A. State of corrupon The state of corruption in the Southern African Development Community (SADC) region varies widely as evidenced by Transparency International’s Corruption Perception Index (CPI). Whilst most of the countries occupy the lower half of the global index ranking, Botswana has the distinction of consistently being in the top third of the rankings. The country was ranked 30th globally in 2013 and 31st in 2014. It ranked Lesotho at 55 out of 174 countries and territories globally, and scores it at 49 for the years 2013 and 2014; an improvement from 45 in 2012. The Mo Ibrahim African Overall Governance Index scores Lesotho at 61.1 out of 100 in overall governance and ranks it 10th out of 54 countries in Africa. Zimbabwe was in 2014 ranked 156th of 176 most corrupt countries. A 2014 local survey by Transparency International Zimbabwe (TIZ), 77.4 % of the respondents professed that they had been asked for a bribe.

B. Polïcs of corrupon The public înance, justice and administrative systems in all the countries in SADC can eectively manage corruption. Most countries have an understated but potentially powerful institution known as the înancial intelligence unit whose purpose is to ensure that the executive has a înger on the pulse of all signiîcant amounts of money moving within the country. It would therefore take deliberate eort to remain ignorant of, say two million dollars, moving from the proverbial Gupta’s account to that of a relative of a senior government oïcial. Another is the asset forfeiture institutions and the public performance management institutions whose administrative powers to clean up malfeasance are incontestable. For the asset forfeiture law will place suspicious assets under state custody and maintenance until the owner can satisfy a judicial oïcer as to how they got miraculously rich. And the public performance system will automatically îre the minister for water if citizens complain that they have to pay bribes for connections, or businesses complain that they have to pay bribes for piping contracts. The executive can also unleash the

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EFFEC TIVENESS OF ANTICORRUPTION AGENCIES IN SOUTHERN AFRICA

less encumbered institutions such as the revenue authorities and anti-money laundering institutions to respectively heavily punish those that didn’t pay due taxes on ‘miraculous’ incomes, or those whose incomes are tainted by connection to racketeering or other conspiracies to commit înancial crimes. As such, accountable democratic governance is straight forward. Competitive democracy is, however, prohibitively expensive. In order to win, especially as an incumbent, one has to raise many times the size of the war chest of the opposition in order to bribe, scare and intimidate the constituency into staying faithful or jumping into your ship. More important than the party coers are the party individuals who having been corruptly enriched through public procurement, faithfully contest or fund the party as a contractual obligation and economic self-interest. In real politik, upholding ideals such as integrity and accountability would be suicidally naïve in a competitive democracy. Statecraft in competitive democracies is also complex and vicious. Most people that wield power in African democracies have had to enter alliances of betrayals, murders, sabotages, robberies of public coers, kidnappings, massacres and bigotry. Such alliances ensure that the partners are collectively and individually captive to the need to retain power, at whatever cost, in order to avoid the consequences of their crimes. Thus the corruption in SADC, as most corruption in Africa, is a deliberate executive machination.

Botswana Politicians in Botswana are routinely accused of corruption by the public. A number of factors complicate the enforcement of electoral or campaign înance discipline in Botswana. For instance, whereas the electoral law requires candidates to declare their electoral expenses to the Independent Electoral Commission, this is hardly ever enforced thereby leaving open the risk of state capture.

Democrac Republïc of Congo A close relationship exists between politics and corruption in the DRC, leading some people to disengage from politics in the name of ethics. The 2011 elections like those of 2006 were fraught with allegations of vote-rigging in favour of President Kabila. Many of the electoral agents were overtly corrupt. So were many voters who were paid with public money to vote for the incumbent president, parliamentary, senator, governor and vice- governor candidates. The political culture has created a governance environment of non-accountability, patronage and the use of public resources to enforce political ambitions.

Lesotho All the positive reports notwithstanding, Lesotho has had cases of grand corruption. The sale in the early 1990s of Lesotho’s international passports to Chinese nationals under a scheme devised by the Lesotho National Development Corporation (LNDC) is a case in point. The scheme was designed to award Lesotho passports to wealthy individuals under

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