Corruption is resistant to attack - Africa in Fact
Terence Corrigan
Mount Kilimanjaro towers some 4,900m above its plateau, making it the highest peak in Africa and one of the tallest in the world. Rich in folklore and cultural significance, featuring in the traditional religion, spirituality, and origin stories of several peoples, it is also an appropriate metaphor for the governance challenges confronting Africa.
As daunting as the mountain is to climb, so has corruption proven stubbornly resilient against efforts to combat it. Corruption in Africa is not merely a matter of the pillaging of its wealth.
Corruption infects and corrodes institutions, distorting the political economy of the wider society.
This was aptly summarised in a 2011 judgment of the South African Constitutional Court: “Corruption is … an antithesis to democracy and the rule of law. Corruption diverts resources that are needed to improve the lives of citizens to enrich a few, at great cost to many. Corruption prevents the state from fulfilling its constitutional obligations, erodes the legitimacy of our democratic government, and subverts the rule of law.”
Survey evidence – notably the longitudinal polls conducted by Afrobarometer – suggests a strong correlation across the continent between perceptions of the prevalence of high-level corruption (and impunity) and dissatisfaction with the functioning of democracy.
“With few exceptions,” wrote Christiaan Keulder and Robert Mattes in a 2021 analysis of Afrobarometer’s data, “countries where people perceive high levels of corruption also register high levels of dissatisfaction – that’s the story in Gabon, Mali, Guinea, Lesotho, and South Africa.”
Keulder and Matters went on to note that widespread corruption formed part of the context for coups in Guinea and Mali; and, indeed, Afrobarometer has tracked a general frustration with democracy and growing receptiveness to the idea of strongman rule, provided it can deal with pressing socio-economic problems.
Corruption flourishes where the institutions meant to curtail it are weak or are themselves corrupted. Over time, the acceptance of corruption as a part of life and the impunity that perpetrators enjoy serves to compound the problem; corruption becomes a proverbial feature rather than a bug.
This goes some way to explaining the limited success that anti-corruption efforts have had in many places in the continent.
Would a supranational body do better? This is the proposition behind the International Anti- Corruption Court (IACCourt). Such an institution would provide a system of peer accountability; once a country acceded, it would be committed to meeting its obligations under international anticorruption conventions, notably the United Nations Convention Against Corruption (UNCAC).
On the face of it, for frustrated African anticorruption campaigners, this could be a potent tool. But Africa has extensive experience with its own retinue of institutions that have attempted to elevate justice from a national matter to a transnational one – and its performance in this regard has been less than exemplary.
In the shadow of Kilimanjaro sits Arusha, capital of Tanzania and seat of the African Court of Human and People’s Rights, an innovation of the 1990s, following the continent’s democratisation, the civil wars in Liberia and Sierra Leone, and the Rwandan genocide, and related concerns about the impunity that abusers had previously claimed by virtue of state sovereignty. This was all of a piece with the turn from “non-interference” to “non-indifference”.
The protocol establishing the court was adopted by the old Organisation of African Unity (OAU) in 1998; in 2004, after ratification by 15 countries, it became operational, and the first judges were appointed in 2006. Today, nearly all of the 55 members of the African Union (AU) have acceded to the Charter (Morocco being the sole exception), and 34 have ratified the protocol on the court.
However, only eight have filed a declaration which would accept the right of private individuals and institutions to approach the court directly. A few countries, including Tanzania, have actually withdrawn this access, having previously granted it.
Where a state declines to grant this access, non-state bodies under their jurisdiction must first approach the African Commission on Human and Peoples’ Rights, another AU body charged with overseeing adherence to the charter.
The court has made several substantive rulings against governments. These include a 2014 ruling against Burkina Faso for having failed to properly investigate the assassination of journalist Norbert Zongo, and a 2023 ruling that Tanzania could not use senior civil servants to organise elections.
In theory, the judgments of the court are binding, and in these cases, they had – or appeared to have – the desired impact. Burkina Faso paid restitution to Zongo’s family and reopened the investigation. Eventually, it issued an arrest warrant against François Compaoré, brother of, and economic advisor to, the former president, although this was contested up to the European Court of Human Rights, and the extradition order against Compaoré voided after Burkina Faso’s 2022 coup.
In the case of Tanzania, the government agreed to alter electoral legislation to deal with the problem. It might be recognised that the positive reception followed a change in the leadership of Tanzania, with the death of the mercurial John Magafuli and the accession of the more accommodating “Mama” Samia Suluhu Hassan.
Yet these modest successes have been overshadowed by the more widespread failings.
A 2021 report noted that a paltry 7% of the court’s rulings have been implemented, as have hardly any of its provisional measures.
The hard reality is that, irrespective of the excellence (or otherwise) of the court’s rulings, they will have no practical impact in the absence of an appropriate alignment of political will: shall the African Union as a body and its constituent states demand that the court’s rulings are obeyed? And will the countries under investigation accept the validity of the findings against them?
At some remove from Kilimanjaro is Windhoek, capital of Namibia and onetime seat of the Southern African Development Community (SADC) Tribunal.
SADC is a regional community whose membership stretches from South Africa to Tanzania. Officially established in 1992, the tribunal was part of realigning the body with the new democratic imperatives taking hold across the world. The tribunal was constituted with the appointment of judges in 2005.
It would only hear a few cases, but one of these would make headlines – and bring about its demise.
It concerned a white Zimbabwean farmer, Mike Campbell (subsequently joined by a group of others), who contested the seizure of his landholdings in the country’s “fast-track land reform” programme. The case was the subject of an acclaimed documentary, Mugabe and the White African.
The tribunal found pretty comprehensively that Zimbabwe was in breach of several of its obligations under the SADC treaty, wrongly allowing the properties to be taken, denying their owners access to the courts, and discriminating against them on grounds of their race. The Zimbabwean government attempted to frustrate the process before withdrawing from it, denouncing the rulings, and refusing to comply.
Harare went on the offensive against the tribunal. In this it was successful. A number of southern Africa’s governments are under the control of former liberation movements. This shared history manifests in a close sense of solidarity, and a mutual commitment to the continued incumbency of each.
This had long been evident in the refusal of most SADC governments to condemn the undermining of democracy and the rule of law in Zimbabwe.
Nicole Fritz, at the time head of the Southern African Litigation Centre, a regional NGO, commented to Africa in Fact: “There was a coordinated campaign by Zimbabwe to persuade their peers, leaders of post-liberation movements, to act in concert. The message was that they were all similarly endangered.” Vitriol was directed not only at the tribunal, but at critics in politics and civil society who sought to defend it.
In 2010, the SADC Summit obligingly ordered a review of the tribunal’s functions, during which time it was to refrain from accepting new cases.
Subsequently, in 2012, it was decided to restrict the tribunal to hearing cases between states. Judges were in any event not replaced, so the tribunal has to all intents and purposes been abolished.
A small codicil to this is that in subsequent years, courts in both South Africa and Tanzania have ruled against their governments, in cases challenging the decision to support the undermining and abolition of the tribunal. Whether this has the possibility of resuscitating the body remains to be seen.
In the case of the African Court of Human and People’s Rights and the SADC Tribunal, politics has exercised a decisive role. In the case of the court, indifferent political will has meant limited implementation of its decisions. In the case of the tribunal, political considerations destroyed it.
As Mia Swart, a South African academic, has written: “Many believe that the disbanding of the SADC Tribunal in 2012 was reflective of SADC’s hierarchy of values in which the organisation’s formal commitment to human rights and a regional legal order is subordinate to the political imperatives of regime solidarity and respect for national sovereignty.”
Hence, Fritz argues for building coalitions of civil society, activists, and political champions at national and regional levels to champion the cause of such bodies. Jeggan Grey-Johnson, advocacy advisor for the Open Society Foundations, agrees: “These things are highly political... I think there needs to be strong civil society voices to exert influence, cross-pollination of ideas and mandates across organisations, and avoid shooting oneself in the foot; be principled but strategic.”
Both Fritz and Grey-Johnson warn about the intricacies of navigating this process. One of the key takeaways from the experience of both the African Court and the SADC Tribunal is the question of jurisdiction. Indeed, this is the element that drives many of the political sensitivities. Supranational institutions can, after all, mean that the protection afforded to malfeasance by degraded local institutions becomes rather more tenuous.
Grey-Johnson adds that Africa has developed an elaborate system of institutions, many of which function poorly – such as the African Court of Human and People’s Rights.
“Wouldn’t it be better to improve what we have?” he asks. He points out that the terms of the body would be decisive: to what extent could it exert jurisdiction? Who would fund it, and so who could influence it? Would it actually hold people accountable?
These questions – the interface between the institution’s design and mandate and the politics that determine its actual functioning – have been the rockface that other African supranational courts have struggled to climb.
Paul Hoffman, founder of NGO Accountability Now and III board member, has no illusions about the difficulties: “Most in Africa will not be too keen.”
He notes that some countries have pragmatic and normative reasons for participating. But, for him, the key jurisdictional issue is not whether African countries submit themselves to the court, but whether the destinations in which the malfeasant gains have been stored do so.
Combined with the possibility of an institution that will allow civil claims, this is an important innovation against corruption. He describes a situation in which, on the balance of probabilities, assets can be seized far from the scene of the crime.
The corrupt party may not be arrested, but would feel the sting. And it would send a message.
“The seizure order gets people’s attention,” Hoffman explains. “Jurisdiction attaches to the place the money or assets are found. These guys don’t keep their ill-gotten gains at home – they’re in Switzerland, Hong Kong, Dubai, Westminster, or the Caymen Islands, in bank accounts or maybe moored in a harbour somewhere.”
From this perspective, however, the IACCourt’s success would depend on getting the recipient (or haven?) countries on board, which could itself be a tough climb to make – but it would mean that deeply corrupt governments (in Africa or elsewhere) would not be able to shield themselves by refusing to participate.
Related to this is the question of legal standing to approach the IAC Court. Will it secure buy-in from countries if this grants their citizens the right of direct access, a thorny question for both the SADC Tribunal (where it was ultimately fatal), and the African Court, which gives an effective veto to this in respect of their citizens?
Will this be limited to those who can show direct, personal injury, or will public-interest litigation be possible? And what would this mean for access to the court by people forced out of their home countries? Or by people and public-interest bodies based in non-participating countries? Or for the possibility of one state launching proceedings against another? On these questions the summiting of the problem will turn.
Yet it should not be lost from view what it is that the envisaged IACCourt is attempting to do, and what is at stake in this work – or its potential impact. For Africa, corruption is one of a number of existential threats, not least to its prospects for sustaining democracy, expanding civic freedom, and reorientating governance towards the developmental efforts that its people deserve.
Reflecting on decades-long activism against looting and impunity in South Africa, Hoffman says quietly: “I want to get the money and bring it back to promote the Constitution.”
The experience of similar bodies shows the incline and elevation of the mountain that must be scaled. It is, however, a worthy endeavour to make. Should the court come to existence, perhaps its founding charter could be signed on the summit on Kilimanjaro – and its judgment read in the mountain’s shadow.
Corrigan is projects and publications manager at the Institute of Race Relations