A Review of AU response to Corruption in Africa

Abstract
This paper examines the African Union’s fight against Corruption in African Countries. While developing countries are striving to achieve socio-economic integration, there are a number of social and political evils that undermines economic growth in these countries. This paper analyses the causes and effects of corruption, which has constitutes a severe constraint to economic growth. The paper argues that much as the African Union deserves commendation for the role it is playing towards eradication of corruption in Africa, the measures adopted by the Union can hardly help reduce corruption to any appreciable extent, due to some factors that militate against such measures.

Introduction

The African Union was founded in July 2002 at the Durban Summit, following the Sirte Declaration on 09 September 1999 and succeeded the Organisation of African Unity. The establishment of the African Union was as a result of the various initiatives by the OAU amongst which was the greater need for a process of accelerated, sustainable socio-economy, cultural and political integration in the African continent. There is no doubt that it was modelled on the European Union which itself was previously known as The European Economic Union (EEC). While the OAU was fighting diplomatically against racism and apartheid and decolonisation and the Soviet Union and the West were watching each other with more than an eagle eye and ready to press the Red button of destruction, the AU became the aftermath of that. The changing faces of the East – West relationship from the ever ready to lunch the weapons of mass devastation to that of cooperation was noted by the Heads of State of the defunct OAU at their two days summit of Twenty-sixth Ordinary Session of the Assembly in Addis Ababa, Ethiopia in July 1990.

The Heads of State and Government of the OAU in that summit took a critical review of the political, social and economic situation of the Africa continent, in light of the rapid changes taking place in the World and their impact on Africa, as presented in the Report of the Secretary General on the Fundamental Changes taking place in the World and their Implication for Africa: Proposal for an African Response.[1] The real treat of the African Continent’s marginalisation in global affairs, especially in socio-economics situations which remains precarious today is now much a greater and in present danger than ever before, unless the AU tackles the menace corruption of in all its forms.

The African has suffered from decades of socio-economics, cultural and political decades of decline and marginalisation. The aftermath of independence has witnessed nothing but a string of wide spread corruption and gross abuse of power dictators as Heads of Government with poor economic policies and civil wars. Corruption has and continues to be cankerworms deep in the mind set of over 99% of African Heads of Government and her people both in the public and private sector. “Its deep effects on society have been described as being worse than prostitution. While prostitution may jeopardise the morals of individual, corruption on the other hand affects in multitude and diverse ways the well being of the whole nation.” [2]

The corroding effects of corruption are multifaceted. This evil in particular spreads and paralysis entire government and public sector operations if left unimpeded. Corruption is as much structurally conditioned as it is a personal-choice driven behaviour. This is why anti-corruption strategies and policies ought to seek to reduce structural opportunities for corruption as well as motivational factors to corrupt and/or to be corrupted. The criminal justice approach in combating corruption divorced from prevention and human development efforts will make a few headlines and will put a few behind the bars but cannot dismantle the economic, cultural and political forces driving a corruption zeal. Similarly, anti-corruption proclamations and mere economic growth cannot, on their own, dismantle a personal choice to get involved in a corrupt
Transaction, be it for survival, greed or mere convenience. Thus, the integration of structural and motivational factors generating corruption requires even stronger and targeted integration of anti-corruption approaches and interventions.[3]

Organised crime and corruption pose a massive security challenge in Africa. They indirectly compromise the welfare and integrity of society through unlawful practices that create victims, while at the same time generating benefits only for criminals. They undermine the rule of law and engender lawlessness, thus creating an environment in which governments seem incapable of providing security for their people. Government officials have themselves been found to be complicit in acts of crime and corruption. Failure to curb this problem only serves to chain the continent to deprivation, weak economic performance, bad governance, social disintegration, poverty, apathy and strife. This poses a threat to the achievement of the developmental objectives envisioned in the New Partnership for Africa’s Development (NEPAD) Programme – the blueprint document that sketches the path towards Africa’s economic growth and development.

It is argued in this paper that NEPAD, which is sanctioned by the African Union (AU), should create a forum to drive a targeted, holistic, programmatic approach towards containing organised crime and corruption in Africa. This approach should aim at developing national capacities to tackle organised crime and corruption effectively. By doing so, countries will be able to foster a stronger regional and wider global response to the challenge. Without this approach, Africa will continue to lag behind and remain the weak link in global efforts to control organised crime and corruption, as is the case with other social ills that afflict the continent.

Africa is affected by various kinds of organised crime, including banditry, the diversion of humanitarian aid and crucial food resources, racketeering, the theft and smuggling of mineral resources, motor vehicle theft and smuggling, trafficking in illegal drugs and small arms, poaching and cattle rustling. Human trafficking is also starting to emerge as an area of concern. These crimes affect all African countries. However, differences in the degree to which countries are affected do, in turn, have a bearing on the level of national prioritisation and coordination between countries in efforts to control these criminal activities. Countries often do not have the same priorities, let alone similar capacities to fight organised crime and corruption. This not only has a direct impact on national capacity to fight organised crime and corruption, but also negatively affects international cooperation. The latter takes place more often and effectively at bilateral level and to a lesser extent at regional level. In order to launch an effective struggle against crime and corruption, capacity will need to be enhanced initially at national level.[4]

Causes of Corruption

The causes of the corruption in the continent are multifaceted and primarily center on greed. Corruption is a global phenomenon but the African continent pays more dearly for this evil act. The lack of basic infrastructure, good education, health care, genuine means of income to sustain your family are amongst some of the factors that triggers corrupt acts. Accountability and transparency is ill developed in the region due to lack of quality leadership. That is a critical factor in the determination of the prevalence of corruption. “The senses of public duty and of national vision are often in which all can benefit is often not present, and may not be shared by all even in some liberal democratic societies”.[5] Corruption is intertwined with politics and it is indeed a symptom of weak political institution.

In Nigeria, Zimbabwe, Democratic Republic of Congo, to name but a few are such countries that are grossly guilty of the causes of corruption. Where miscreant, privilege individuals, illegitimating amass national funds to the detriment of the lager majority of its citizenry; corruption is thus giving birth to. The erosion and abuse of the judiciary and enforcement structures also play a pivotal role in abuse of power by those entrusted with leadership.

Effect on the People

Indeed, corruption is global but the high level corruption in the African continent is mind blowing. In some part of the region, there is barely a meal for the day. Yet there leaders’ leaves gold paved palaces, with bank accounts across the globe. The effect of such misappropriation is a limited national and international investment and ineffective system of administration – government. The citizens are unproductive, living in some cases way below the poverty line. These citizens faces untold hardship, without a better choice, learned to cope with high inflation, increased cost of transport, food stuff, fuel, medicines, lack of clean drinking water, electricity, inaccessible roads etc. In a State or region where there is no stimulation of socio-economic growth, the effect is felt at all levels of life for those at the receiving end of bad governance and such is the unfortunate situation in Zimbabwe were a few enjoys at the expense of the majority.

Corruption is so endemic in Africa that the World Bank estimates that some $1 trillion is paid globally on bribes alone each year. According to the bank, the sums of money embezzled or stolen from the public funds and assets by corrupt officials and the unaccounted volume of fraud within the private sector could exceed the scale of global corruption. It furthered argued that, not only does it obstruct development but it fetters business growth. The bank surveyed nine African countries amongst which are those named above and ranked corruption as the major impediment to their development. It is estimated by the bank that where good governance and corruption control have been firmly established, the long-term economic dividend can be as much as three to fourfold increase in income per capital, together with economic growth of about 4%.[6]

Corruption is bad enough on its own but, what makes it worse is that the proceeds from these corruptive malpractices are spent and kept in banks outside the African continent. Where these illicit proceeds which the World Bank estimates to be in the region of $100 billion to $200 billion every year spent in Africa, it would to an extent create more needed jobs and some kind of infrastructure.

Corruption enriches the few minorities and strangulates economic growth and inadvertently blocks much needed development in the African region. It forestalls in flock of potential international investments, thus underpinning the region in an analogue age. Corruption is a man made disease, it is global in nature, but practices more in Africa by self-serving public office holders. At the expense of those whom they were meant to serve and protect – the private sector whom on the other hand were infested by the disease and thus became magnitude in nature.

The consequences of corruption are invariably felt most by those at the bottom of the economic scale – the poor people who due to their poorness have less means to cushion the negative impact. It is observed that, “Corruption has a strong negative effect on all aspects of society: It distorts the economy, it challenges the rule of law and it undermines the functioning of the political system. It is further observed that “While the effects of corruption may not be felt by the well-off decision-makers of business and politics, widespread corruption has however a direct bearing on the everyday lives of the poorest strata of the society as well”.[7]

African Union Convention

The AU convention on preventing and combating corruption and related offences was adopted by the heads of state at the AU summit held in Maputo on 11 July 2003. The fight against corruption was not specifically introduced at the regional level until June 1998, at a session of the assembly of heads of state and government in Ouagadougou, Burkina Faso. The assembly passed a resolution calling on the secretary general to convene a high-level meeting of experts in cooperation with the African Commission on Human and People’s Rights. These experts were to consider ways of removing obstacles to the enjoyment of economic, social and cultural rights – such as through the fight against corruption impunity – and propose appropriate legislative and other measures for reform. The scene was set for the drafting of a historic convention. Civil society groups, including Transparency International, actively participated in the writing of the first draft of the of the AU convention at expert meetings in Addis Ababa in November 2001 and September 2002.[8] The framework which covers a range of criminal offences, also calls for preventive measures, more serious, meaningful regional co-operation, regional and international legal assistance in the recovery of assets, illicit enrichment in both the public and private sector corruption. This convention is unique in the sense that African heads of government are for the first time taking a pro-active steps in the fight against corruption by a mandatory provision with respect to accountability in all sectors of their economy i.e. transparency in political funding, designated public office holders declaration of assets, restrictions on immunity for public office holders (Article 7), bribery etc. The steps are indeed right steps in the right direction. However, the ratification is yet to attained the require signatories for it to be enforced. Only 21 out of the 53 countries have signed the AU convention but none has ratified it. [9] It is in the interest of the African state to urgently ratify and vigorously pursue and effective mechanism in the eradication of corruption. As Susan Rose argued, high level corruption limits investment and growth and lead to an ineffective government.

Objectives

The African Union under the current leadership of the Nigerian President Olusegun Obasanjo, who succeeded South African president Thabo Mbeki seems poised to institute measures to combat institutional and private sector corruption. To promote foreign investment in Africa, the effect is what we are seeing in Chinese railway and agricultural investment in Africa notably Nigeria, through NEPA (New partnership for Africa’s Development) programme. To promote human rights, peace, security and the alleviation of the living standard of the African people. To promote regional cooperation for the effective implementation of measures adopted in the interest of the continent, such as money laundering, people trafficking, eradication of corruption and related offences. Under the Articles of the convention, the harmonisation and co-operation of policies and legislation amongst the signatory African states for the purposes of eradicating corruption, detection, prevention and punishing is stated as one of its major goals. The goal of socio-economic development is another stated as objectives of the convention. The aim of these objectives is to combat corruption at every level and promote social, economic, political and cultural rights to the enjoyment of growth in the region.[10] The emphasis of the convention is to encourage member states to ‘promote and strengthen the development… of mechanisms required to prevent, detect, punish and eradicate corruption and related offences in Africa and to ensure effectiveness of these measures.’[11] The convention has listed and strengthened laws on corruption and related offences thereby ensuring they are punishable by national legislation. By encouraging and promoting public awareness both national and internationally, the convention has thus enlisted global co-operation in the detection, confiscation, forfeiture of the proceeds of corruption, the repatriation of such proceeds and furthermore, punishment for those involved in the corrupt act.


Offences Constituting Corruption

Transparency International defines corruption “as the abuse of entrusted power for private gain.”[12] It went further in its report, “corruption is considered to include offering, soliciting and accepting bribes. The report points out that embezzlement through mechanisms which include siphoning off funds to non-existent companies and through fake and mispriced transactions is rife throughout Africa.”[13] The convention defined corruption broadly enough as to ensure that corruption or related offences committed both within the common law and civil law jurisdiction would not escape punishment. Under the civil law rule, corruption and embezzlement are offences which are only capable of being committed by holders of public office or involving public funds. By introducing the term “related offences” the convention found a way round that common law rule thus introducing civil law rules. The convention is now able to define corruption as “the acts and practices including related offences proscribed in this convention.”[14]

The convention has clearly and broadly defined corruption enough as to pre-empt any conflicts of interpretation in both the civil and common law jurisdictions. Under this AU convention, the inclusion of ‘related offences’ means those who commits the offence of corruption within official and private sectors in civil law countries cannot escape punishment. As they have thus falling into the armpit of both common and civil law jurisdiction.

However, the provision of the illicit enrichment in the convention has been criticised. In that, the burden of the presumption of innocence in criminal law is somehow shifted from the prosecution. In criminal cases which involve illicit enrichment or unjustified enrichment, the burden of proof usually rest with the prosecution to prove beyond all reasonable doubt that acquired wealth is not justified by earnings. Here, under the convention, the prosecution is not legally required to prove beyond our accustomed reasonable doubt that wealth exceeds income, nor does the prosecution necessarily need to prove that the unjustified income was derived from corruption. It is automatically presumed that unjustified income is a proceed from corrupt source. It is argued that, if implemented, such provisions are likely to face legal challenges, particularly in countries where the presumption of innocence is imbedded in the constitution.[15]

African Union: International Co-operation against Corruption

The African Union has solicited the assistance of the international community in a global war against corruption in the region. The need to render such assistance was promptly recognised by the British government, the World Bank, United Nations, the international and regional business communities.

The British government welcomed the report and responded to the recommendations in the Africa All Party Parliamentary group, titled “The Other Side of The Coin” by acknowledging that corruption and related offences presents a critical obstacle to development in Africa. As such legal framework to combat international bribery, corruption and money laundry were said to be re-enforced. Furthermore, recommendations from the Economic Co-operation and Development (OECD) bribery working group has also been revisited to combat bribery of foreign public officials in international business dealings. The United Nations adopted also adopted a convention on 9 December 2003 against corruption.

African Union: Efforts to Present and Combat Corruption
The African Union has been concerned about the negative effects of corruption and impunity on the political, economic, social and cultural stability of African States and its devastating effects on the economic and social development of the African peoples. It has come to grip with the devastation caused by corruption and acknowledge that corruption undermines accountability and transparency in the management of public affairs as well as socio-economic development on the continent, thus recognizing the need to address the root causes of corruption on the continent. It is convinced of the need to formulate and pursue, as a matter of priority, a common penal policy aimed at protecting the society against corruption, including the adoption of appropriate legislative and adequate preventive measures. The African Union is determined to build partnerships between governments and all segments of civil society, in particular, women, youth, media and the private sector in order to fight the scourge of corruption.[16]

The Convention on Preventing and Combating Corruption has its basis in the African Charter on Human and Peoples Rights as well as other resolutions and declarations of the OAU. These include, the 1990 Declaration of fundamental changes taking place in the World and their Implications for Africa.[17] The adoption of the convention was hailed both in the region and international community as a step in the right direction. Furthermore, accountability and transparency awareness is now a phenomenon welcomed in the region. The need for better governance in Africa cannot be under estimated. Without good governance the effort to achieve economic integration will be futile.

















Reference
Conga, Frank. Corruption in Africa. Charleston, USA: Booksurge, 2006
Mbaku, John, M. Institutions and Development in Africa. Trenton, USA: African World Press, 2004
Mbaku, John, M., Corruption in Africa: Causes, Consequences and Clean up Lanham, USA: Lexington, 2007
Olaniya, K, The African Union on Prevention and Combating of Corruption: A Critical Appraisal, African Human Rights Journal, 2004, Vol. 4 No. 1 74-92
Sardan, Jean-Piere, O. D., and Cox, Susan. Everyday Corruption and the State: Citizens and the Public Officials in Africa. London: Zed Books Ltd, 2006Sinjela, M., The African Union takes a legal stand on Corruption,. African yearbook of International Law; 2005 vol. 11, p143-159
[1] http://www.africanreview.org/docs/govern/changes.pdf
[2] Sinjela, M., The African Union takes a legal stand on Corruption,. African yearbook of International Law; vol. 11, p143-159/2005
[3] See Corruption and anti corruption in South Africa.
http://www.unodc.org/pdf/southafrica/southafrica_corruption.pdf
[4]http://www.iss.co.za/index.php?link_id=28&slink_id=1185&link_type=12&slink_type=12&tmpl_id=3
[5] Ibid fn 2
[6] See Lord Chidgey., House of Lord debates, Monday 19 June 2006. On the report of the Africa All Party Parliamentary Group, The other side of the coin: The UK and Corruption in Africa. http://www.theyworkforyou.com/lords/?id=2006-06-19a.585.0&m=100562. Also see, http://en.wikipedia.org/wiki/World_Bank
[7] Ibid fn 2
[8] Ibid
[9] Htt://www.u4.no/helpdesk/helpdesk/queries/query30.cfm
[10] See Article 2 of the convention
[11] See A. Muna, The African Convention against Corruption, in Transparency International (TI), Global and regional reports, p.117
[12] ibid fn 8
[13] ibid
[14] ibid fn 2; also see the preamble of the convention
[15] Ibid fn 9
[16] See p.2 & 3., AFRICAN UNION CONVENTION ON PREVENTING AND COMBATING CORRUPTION http://www.africa union.org/root/AU/Documents/Treaties/Text/Convention%20on%20Combating%20Corruption.pdf
[17] Ibidi fn 1