Journal of Alternative Perspectives in the Social Sciences ( 2010) Vol 2, No 2, 495-522

Extra-Territorial Approach to Anti-Corruption, Integrity and Public Service Ethics in Africa: A Review of Frameworks and Implementation Challenges Mojeed Olujinmi A. Alabi, The African Training and Research Centre in Administration for Development (CAFRAD) (Tangier, Morocco)

Abstract: The failure of governance in Africa, which has threatened national efforts targeted against corruption and administrative maladies and retarded progress towards promotion of integrity and ethics in the public services, necessarily calls for some form of transnational efforts. These latter efforts (regional, continental and global) are designed as guides for actions and standards against which national efforts could be assessed or measured. These legal and institutional mechanisms, and the accompanying national policy initiatives, ethical codes and administrative guidelines, are part of the larger reform agenda directed towards innovation and modernisation of the African public sector for performance, results and optimal service delivery. This paper interrogates how multilateral frameworks are re-defining the fight against corruption and maladministration in the Africa. It reviews four of such keys instruments, highlighting their basic features, strengths as well as constraints to their effective domestication and subsequent application. It identifies shortcomings in both the law and public service ecology that have or could make enforcement of ethical codes and anti-corruption laws difficult to enforce. In addition to making suggestions for managing the challenges for improved public service and administration, the conclusion canvasses a consideration of the human dimension as a critical factor in fashioning anti-corruption and ethical codes/standards for the African public sector institutions and state agencies. Key Words: Corruption, Maladministration, Ethics, Public service reforms, United Nations, African public service.

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Extra-Territorial Approach to Anti-Corruption, Integrity and Public Service Ethics in Africa: A Review of Frameworks and Implementation Challenges

1. Introduction The search for ethical standards in public life that meets the basic criteria of international best practices has been, for African countries in particular and the countries of the global South in general, a daunting task. The stress has not been so much in selecting options and strategies as in implementing them. In line with the current global trends and patterns, there are varieties of legal and institutional mechanisms that have been put in place in many countries. These national frameworks are adopted and seek to meet the standards set by international, continental and regional frameworks that are designed to squarely confront the scourge of corruption and administrative maladies that have retarded progress and development on a continent that house more than three-quarters of the black race. These legal and institutional frameworks, and the accompanying policy initiatives, ethical codes and administrative guidelines, are part of the larger reform agenda directed towards innovation and modernisation of the African public sector for performance, results and optimal service delivery. With years of efforts and billions of dollars spent, efforts directed towards reforming the African public service, maladministration and corruption remain higher on the reform agenda, largely because there are no visible dividends for the needed transformation and development. Rather, these reform efforts are threatened by serious implementation challenges that have continue to retard, rather than enhance, the progress towards improved public service ethics and anti-corruption. In the circumstances, little or no progress is made across the continent in the crusade to instil the spirit of public service and fight against corruption. This and other social malaise have threatened the growth and transformation of the public administration of Africa towards the path of reform, innovation and modernisation in order to meet the increasing demand for efficient and effective service delivery in all sectors of the public service. This paper examines how the existing multilateral frameworks are re-defining the fight against corruption and maladministration in the African public services and state institutions, and the various challenges of implementation

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that are crippling national responses in this regard. It appraises the national implementation strategies, and identifies shortcomings in both the law and public service ecology that have or could threaten implementation efforts. The conclusion canvasses a consideration of the human dimension as a critical factor in fashioning anti-corruption and ethical codes/standards for the African public sector institutions and state agencies, and directs attention to areas of further research in this regard.

2. Integrity, Ethics and Anti-Corruption as Reform Agenda Contemporary policy discourses on Africa have stressed the importance of reforms of public administration and governance structures in order to better serve the citizens, improve service delivery and meet citizens’ demands. One major component of these reform efforts is the need to build integrity, ethics and professionalism into the public service. To compliment these efforts, emphasis is placed on accountability, transparency, and judicious use of public resources. In this regard, particular attention is paid to the issue of corruption which has remained “a malignant cancer” (http://www.liberianobserver.com/print/6051), in many countries, destroying the social fabric of the society, tasking state resources, and retarding social and economic development. Accordingly, significant efforts are directed at making laws, creating institutions and putting policies in place to address the problem. Such efforts have increased at an unprecedented rate at both the country and regional levels, within the past decade, with multiplicity of national, regional and continental interventions. The several legal, institutional and policy frameworks already operating across the continent have, however, been confronted with implementation difficulties and environmental challenges that have made concrete progress marginal at best, while the hope of winning the war against corrupt practices and instilling public service ethics and professionalism remains furlong. Although issues of anti-corruption and public service ethics may be discussed at different levels, there are some common principles related to both, which make any

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Extra-Territorial Approach to Anti-Corruption, Integrity and Public Service Ethics in Africa: A Review of Frameworks and Implementation Challenges

discussion of any one of them without reference to the other, particularly within the context of public administration ecology in Africa, necessarily useful but incomplete. Integrity, ethics and professionalism are indispensable for optimal performance of the public sector. The critical components of the new public service managementefficiency, judicious utilisation of resources, avoidance of conflict of interest, transparency, trust, accountability, etc– are incapable of full realisation in a corruption-ridden public service. In the circumstances, issues bordering on anticorruption and public service ethics are intertwined, and discussions of both concepts are inextricably linked (http://www.abanet.org/rol/programs/anti-corruption.html 1 (see also Hallak and Muriel, 2002; Rohr, 1998: 43-50) Corruption is, however, not limited to the public sector alone. Corruption occurs in both the public and the private sectors (Transparency International, 2009), and public sector corruption may be both bureaucratic and political (Lederman, Norman and Rodrigo, 2006: 28; see also Mbaku, 1999). Whichever way one views it, however, corruption is endemically rooted in human societies, especially those with weak institutions, and anti-corruption efforts are products of “several generations of reform ideas and reform efforts” (Anechiarico and James, 1996: 18). Corruption in particular and maladministration generally are antithetical to societal progress and development. They breed inequality, undermine societal development, and retard progress. The ubiquity and pervasiveness of corruption has not made it less susceptible to imprecise definition as other social concepts.2 It is, indeed, “a social, legal, and political concept laden with ambiguity and bristling with controversy” (Anechiarico and James, 1996: 16). Nonetheless, it is easily recognised as an abuse or mis-use of authority, whether of a public or private nature, for personal (including selfish 1

The American Bar Association (ABA) has “Anti-Corruption and Public Integrity Programs” that focus on ethics and accountability, legislation, anti-corruption strategies, education and awareness, and assessments and analyses.

2

Both the Transparency International, http://www.transparency.org/, and Global Integrity, http://www.globalintegrity.org/, have a number of indices, tools and kits for measuring corruption. For some consideration of the meaning of the term, see Nye, 1967; Banerjee, 1997; Johnston, 2001.

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corporate) gains, against the public interest.1 Society abhors it because, as the Independent Commission Against Corruption (ICAC) of Hong Kong, one of the countries with the least corruption cases in the world, suggests, it “erodes fairness and the rule of law, and in some cases, puts lives and property at risk” (http://www.icac.org.hk/en/law_enforcement/acl/index.ht ml). Its pervasiveness is particularly dreaded because of its potential to retard progress and development. Pervasive corruption is capable of undermining development efforts, particularly in post-conflict states with weak governments and public institutions. Governments are therefore committed to fighting the menace because mainstreaming anti-corruption and ethics could help reduce poverty and promote societal growth and development (Gareth, 2008; Acemoglu, Simon and James, 2001). 2 Evidence exists, indeed, to suggest such a linkage between anti-corruption policy and societal development (Commonwealth of Australia, 2007). States have reacted in different ways to the scourge of corruption and other ills of public administration in different society. The classical tradition has been to create institutions that separate the personal from the public functions as well as apply rules of behaviour that emphasise ethics, integrity and professionalism.3 As societies advanced, specific designs and frameworks are put in place to tackle specific problems. Today, legal and institutional frameworks exist in different societies exist to address the contemporary problems of public administration generally and corruption/maladministration in particular. Design and implementation of complex reforms are also adopted to

1

Rose-Ackerman (2008: 551) states that “public office can legitimately provide private benefits to politicians and bureaucrats...even if it violates democratic ideals”, insisting “it will not help the analysis of democracy to put them all into the corruption pot”.

2

However, corruption is neither the only nor the main cause of Africa’s underdevelopment.

3

For a fairly comprehensive overview of the development of public administration across different societies, see Farazmand (ed), 2001.

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tackle the several ills of public administration, particularly in the developing countries (Olaopa, 2010). While such reforms are matters of national policies and legislations, additional regional, continental and global frameworks exist as guides for actions and standards against which national efforts are measured. Africa has its own fair share of such extraterritorial treaties, conventions, protocols, charters, etc as additional instruments for strengthening national legislations.

3. Contextual Basis of Extra-Territorial Action The initial African responses to the several ills of public administration, including corruption, were undertaken at the national level and did not immediately command extraterritorial attention. They consisted of legal provisions, in national constitutions, criminal laws, penal codes 1 , civil service regulations and ethical codes of public service behaviour. These responses were aimed at creating norms of behaviour in government-citizens relationships with a view to enhancing the status of government in the eyes of the citizens. Many of the legislations were inherited from the metropolitan countries and incorporated into the local legal systems. Some of these laws, which are still in operation in their original or amended forms, contain provisions relating to public service ethics and anti-corruption, although they were not specifically designated “anti-corruption” legislations. They were general provisions that address certain aspects of financial impropriety and maladministration (bribery, embezzlement, misappropriation, etc) but did not specifically address the issue of corruption which, perhaps were low key and their effects not fully manifested as of the time those laws were adopted. Unfortunately, the mechanisms for continuous updating of the laws to meet the critical challenges of the growing menace of corruption were either lacking or weak, such that the growth and development of such legislations could not meet the pace of corruption and related offences. Also, the penal sanctions provided by those laws were too insignificant to stem the increasing tide and complexity of 1

Eg, Penal Code, chapter 63 laws of Kenya, Penal Code (Rwanda)

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modern corrupt practices. In the circumstances, the provisions of such laws became redundant and ineffective in redressing official, high profile corruption. The failure of governance manifested in arbitrary rule, lack of transparency and accountability, through the personalised one-party autocracies to the several military regimes in various parts of the continent, aggravated the depth and patterns of corrupt and other unethical practices. As leaders and rulers became embroiled in the scourge of corruption, so were the bureaucracies and the private individuals (contractors) and corporate bodies. Official and other high profile corruption has reached a monumental proportion that threatened and continues to threaten the state and the society because of its deleterious effects on public utilities, economic growth, societal cohesion, and overall development. In the circumstances, national efforts were redirected towards promulgation of comprehensive anticorruption laws and ethical codes of integrity for the leadership of the public sectors. The new legal and institutional frameworks seek to ban, regulate and/or criminalise a variety of acts. These include such acts as taking and receiving of bribes, inflation of contracts, secret commissions on public procurement, conflict of interests, illicit enrichment, acquisition of illicit wealth, non-disclosure of ill-gotten wealth. In addition, ethical/integrity codes of behaviour seek to control, by other non-criminal means, receipt of gifts and other benefits by public officials, avoidance of conflicts of interests, and eradication of nepotism in employment and award of contracts. With the prevalence of such big crimes as money laundering, illicit enrichment, bunkering, illegal money transfers, violence, etc., national efforts became incapable of tackling corruption without some form of cooperation and collaboration among states and other international stakeholders in preventing, detecting, monitoring and sanctioning corrupt practices as well as tracing the proceeds of and assets acquired through corruption. This is the context that gave rise to the current global, continental and regional initiatives directed at fighting corruption and entrenching the virtues of integrity, ethics and professionalism in all facets of life, both public and private.

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4. International Frameworks International frameworks at the regional, continental and global levels are redefining the nature and patterns of anti-corruption and integrity efforts across Africa, and have yardsticks against which national efforts are assessed. The upsurge in the global intervention efforts is due to the increasing realisation of the great threats that corrupt, inefficient and ineffective public service poses to societal stability. They are designed to be complimentary of the national efforts since the latter are unlikely to be effective in the absence of transnational collaboration given the depth and spread of many modern crimes relating to corruption and official maladministration. Thus, these extra-territorial frameworks have become part and parcel of the indispensable mechanisms “for demanding legislative change to combat corruption” (http://www.transparency.org/regional_pages/africa_middle _east/promoting_anti_corruption_conventions). The goal of these international efforts is to facilitate cooperation and collaboration among countries in preventing and detecting fraudulent/corruptive practices as well as facilitate tracking of proceeds, asset recovery and prosecution. Most of these frameworks require domestication into national laws in order to enjoy the required legal backing for effective implementation. (Nollkaemper and Nijman, 2007) Four main instruments of transparency and accountability, all recently put in place, are germane to any discussions of anti-corruption efforts in Africa. One of them is the United Nations Convention Against Corruption (UNCAC), which is a product of intense negotiations by governments, non-governmental organisations and civil society organisations, within the framework of the United Nations, for a global legal and institutional framework to strengthen national anti-corruption efforts as well as tackle the menace of corruption at the international level. The UN General Assembly approved the text of the Convention after a series of technical expert sessions that examined the drafts, on 31 October 2003. It was officially unveiled with declaration of a UN Anti-Corruption Day in Merida, Mexico on 9th December 2003. It came into force only on 14

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December 2005 after ratification by the minimum number of states (30) required by Article 68(1) of the Convention. It now has 140 signatories and 125 ratifications (http://www.unodc.org/unodc/en/treaties/CAC/signatories .html). The UNCAC is significant because of its global coverage and comprehensiveness of its provisions. It has 71 Articles, arranged into 8 Chapters, covering a wide range of areas of prevention, detection and sanctioning of corrupt practices, to which member states are committed to take appropriate legislative and policy measures. Each signatory member state is committed to bringing about changes in its laws, governmental policies and administrative practices to meet its obligations under the Convention. Specifically, the Convention obliges its member states to create appropriate policy guides and standards for preventing corruption in both the public and private sectors, criminalise a range of offences with appropriate sanctions, and collaborate with each other for mutual enforcement assistance. Such areas of cooperation relate to sharing of information and intelligence, investigations, assets recovery, extradition as well as financial and technical assistance to poor countries in meeting their obligations under the Convention. For purpose of implementation, the Convention establishes a Conference of the State Parties, 1 designed as the implementation and monitoring unit for compliance with the provisions of the Convention. The UNCAC is a major mechanism of the global anticorruption war, particularly its coverage of private sector corruption, disallowance of tax deductibility of bribes of national/foreign officials, liability of companies and other legal personalities, recognition of longer periods of limitations for bringing prosecutions as well as the rights of victims of corrupt practices to initiate legal proceedings.2 It is, however, criticised for not making the requirements on transparency in funding of political parties/candidates 1

Three sessions of the Conference, poorly attended by African countries, have been held Jordan (10-14 December 2006), Indonesia (28 January – 1 February 2008), and Qatar (913 November 2009).

2

Articles 12, 26, 29, 35

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mandatory (http://www.transparency.org/global_priorities/internationa l_conventions/conventions_instruments/uncac). This is a serious lacuna, particularly for Africa where official corruption has been linked to electoral malpractices and funding of electoral expenses (Alabi, 2009). Neither the African Union (AU) nor any of the designated “pillars” of the African Economic Community (AEC) has followed the footsteps of the European Union (EU), which has signed and ratified the UNCAC. However, many African countries have signed and ratified the convention.1 Rather, the African Union (AU) has negotiated a continent-wide anticorruption framework to take care of the specific African situation in the global fight against corruption. As a compliment to the commitments undertaken under the NEPAD, (Rawia, 2008) the AU Summit adopted the African Union Convention on Preventing and Combating Corruption, otherwise known as the AU Convention, in Maputo, Mozambique, on 11th July 2003. It came into force on 5 August 2006 when the minimum number of states (15) had ratified it. The process of ratifying the treaty has, however, been unexpectedly slow, with 44 signatories and 31 ratifications (out of 53 African countries) to date. The AU Convention is a mechanism for cooperation and collaboration among African state parties, as well as non-governmental and civil society organisations. It has 28 Articles. The scope of the Convention covers such corrupt practices as bribery (domestic and international), diversion/misappropriation of public funds, trading in influence, illicit enrichment, money laundering and concealment of property, etc. (Article 4), both in the public and the private sectors (Article 11). Its mandatory provisions on requirements of transparency in funding of political parties (Article 10) give the Convention an edge over the UN Convention. Other mandatory provisions of the Conventions include those relating to declaration of assets by public 1 Neither the African Union (AU) nor any of the designated “pillars” of the African Economic Community (AEC) has followed the footsteps of the European Union (EU), which has signed and ratified the UNCAC. However, many African countries have signed and ratified the convention. For the status of signatories and ratifications, visit http://www.unodc.org/unodc/en/treaties/CAC/signatories.html, accessed 12th June 2010.

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officials, restrictions on immunity for public officials (Art 7), and freedom of access to information (Art 12). Other measures provided for include establishment of codes of conduct for public officers, whistleblower (informants and witnesses) protection, procurement standards, accounting standards, media and civil society involvement, creation and strengthening of independent anti-graft bodies, waiver of bank secrecy rules, extradition and mutual legal assistance, confiscation and seizure of assets and proceeds of corruption. More than the UNCAC, the AU Convention has more stringent provisions and follow-up implementation mechanisms that demonstrate a willingness to act. Apart from its wide scope of application and mandatory provisions on such issues as funding of political parties, additional guarantees for mutual legal assistance and cooperation in tracing, confiscating and seizing instruments and proceeds of corruption, including funds in foreign accounts. Each country is required to designate and communicate to the AU Commission a national authority/agency with responsibility for making and receiving requests for assistance and cooperation. An Advisory Board on Corruption comprising “experts of the highest integrity, impartiality, and recognised competence” on corruption and related matters is also created to monitor and report implementation progress. National anti-corruption bodies are mandated to make annual reports to the Board. In addition to this continental framework of the AU, some of the regional economic communities (RECs) have also put in additional efforts at the regional level. Noteworthy in this regard is the South African Development Community Protocol Against Corruption (SADC Protocol), which was adopted in 2001 and entered into force in July 2005. It has provisions for preventive and enforcement mechanisms (Zvekic (ed), 2002). Also, there is the Economic Community of West African States Protocol on the Fight Against Corruption (ECOWAS Protocol), which was signed on 21 December 2001 (http://www.transparency.org/global_priorities/internationa l_conventions/conventions_instruments/ecowas_protocol). It is not yet ratified by the required number of states for its entry into force. Apart from these two protocols, there are no

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yet any other regional attempts, and only the UN and the AU Conventions cover the greater part of Africa. One unique feature of the AU Convention is the emphasis placed on promotion of public service ethics, through mutual assistance and cooperation in promoting enabling environment for respect of ethics. 1 It is in this respect that the Charter for the Public Service in Africa becomes relevant. It is, however, limited in scope to the extent that it addresses only problem of maladministration (including corruption) within the core of the public service. Also, it has not yet elevated to the status of a legally binding instrument. It is nevertheless very germane to the discussions in this paper for two interrelated reasons. In the first instance, corruption tends to undermine the credibility of public services and institutions (OECD, 1999: 11). Indeed, and the current challenges of public service management in African countries are related one way or the other to the scourge of official corruption. Secondly, an examination of the scope of the Charter reveals that it covers some of the provisions of the anti-corruption conventions and protocols, and therefore useful as a complimentary instrument of prevention, monitoring and control. The Charter for the Public Service in Africa is a product of the pan-African conference of ministers of public services in Africa, sponsored by the African Training and Research centre in Administration for Development (CAFRAD) and other collaborating partner institutions. It has since become a baby of the African Union, and was formally adopted at the 3rd biennial Pan-African Conference of Ministers of Civil Service at Windhoek, Namibia, in February 2001. It was a set of guiding principles and standards, based on international best practices relating to public service reforms, designed to enhance performance, service delivery and results. Its purpose is to: (a) define the principles and general rules governing African public services with respect to transparency, professionalism and ethical standards; (b) give concrete expression to the commitment of African States to promote such values in the public service; and (c) serve as a policy framework and a source of inspiration for the

1

Articles 5(8), 7(2), and 18(4)

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development, strengthening or updating of national codes of conduct. The Charter for the Public Service in Africa has provisions relating to (a) the duties and role of the public service “designed to restore and/or enhance its image, credibility and legitimacy”; (b) the conduct of public service employees in the exercise of their duties; and (c) legislations, organs and implementation mechanisms as well as monitoring and follow-up. It particularly enjoins the signatory states to put in place mechanisms to ensure proximity and accessibility of public services, including application of ICT (e-governance); stakeholders involvement, including civil-society participation; optimal use of resources to ensure quality, effectiveness and efficiency; periodic evaluation of services provided; transparency and information access; speed and responsiveness in provision of services; and reliability and confidentiality of information concerning citizens. It also incorporates a code of conduct for public service employees with emphasis on professionalism, ethics, political neutrality and duty of confidentiality, declaration of assets, and avoidance of conflict of interests and illicit enrichment. Although a set of mere guiding principles, it was intended to serve as benchmarks for assessment of the progress of public service reforms all over the continent, and many countries have developed local rules and guides along the line articulated in the charter. 1 However, efforts are currently ongoing to transform the document from a mere policy guide into a binding treaty. A draft text of the new treaty, the African Charter on the Values and Principles of Public Service and the Administration, has been prepared for debate and finalisation by country experts in Addis Ababa in August 2010 before being submitted to the summit meeting of the AU for adoption. The core principles of the Charter to which all signatories are committed to implement are: Equality of all users before the public service; prohibition of all forms of discrimination; neutrality in the provision of public service; continuity of the public service in all circumstances; and adaptability of public service to changing 1

E.g., the Nigerian civil service has committed itself to four principles of stewardship, trust, engagement and professionalism, code-named “STEP”. See: Federal Civil Service Statement of Our Commitment, Purpose and Principles (STEP).

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needs of the community and users. The member states are obliged under the Charter to make provisions for: Respect for human rights and principles of legality; adequate and accessible public service to all users, including civil society involvement and consultation; professionalism and diligence in the discharge of public service; integrity, and adherence to ethical rules and values; avoidance of conflicts of interests; fight against corruption; enabling working environment to enhance performance of public employees, including social benefits; inter-state collaboration and continental support assistance to build capacity of states for implementation of the Charter; etc. Enforcement and monitoring mechanisms put in place include biennial submission of country reports on legal and policy measures taken to the AU Commission as well as setting up of national monitoring bodies. It is important to stress that these principles embodied in these instruments are further strengthened by the UN Resolution on “Action Against Corruption” and the “International Code of Conduct for Public Officials”, which emphasises the principles of trust, efficiency, effectiveness, integrity, fairness and impartiality in the performance of public duties, avoidance conflict of interest, disclosure of assets, nonacceptance of gifts, confidentiality of information, and avoidance of political activities that may impair public confidence in the service.1 The essence of this is to give the issue of service ethics, including anti-corruption ethics, greater degree of commitments among the member states of the AU.

5. Implementation Challenges and Prospects The conventions and protocols have no doubt engendered renewed interests in anti-corruption and public service reform programmes in Africa. Since the adoption of these instruments, the national frameworks are being reviewed, updated and upgraded in line with the international best practices and global standards embedded in the treaties, conventions, protocols, charters, etc. Nonetheless, significant implementation challenges have remained clogs in the way of full realisation of the international obligations to which the signatory states have committed themselves. The various 1

UN General Assembly, Resolution 51/59, 28 January 1997.

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constraints and challenges exist in different shapes and dimensions in different countries, making a typology that could be equally applicable in all the countries of the vast continent of Africa difficult to develop. There are, however, some trends and patterns. The appears to be a lack of genuine political will for public sector reforms agenda currently in place in many countries. Often, the reforms are externally driven, as reactions to pressures from donor agencies and nongovernmental organisations, some of which do tie development aids to transparency and anti-corruption (http://234next.com/csp/cms/sites/Next/Home/5557754146/jonathan_appeals_to_lawmakers_to_pass.csp).1 Also, for reasons not unconnected with its more stringent provisions, the AU Convention has not enjoyed as much ratifications among African countries as the UNCAC (http://www.unodc.org/unodc/en/treaties/CAC/signatories .html). (http://www.africaunion.org/root/au/Documents/Treaties/List/Convention%2 0on%20the%20Elimination%20of%20Terrorism.pdf) In many countries, the processes of creating the needed legal and institutional frameworks are unexpectedly slow (http://234next.com/csp/cms/sites/Next/Home/5557754146/jonathan_appeals_to_lawmakers_to_pass.csp) 2 One consequence of this is the absence of comprehensive national anti-corruption strategies in many countries, particularly those countries emerging from conflicts where the public institutions in particular and the governments in general are weak. Even some countries that are signatories to the various regional, continental and global instruments are yet to put in place the needed legal and/or institutional mechanisms of enforcement. Accordingly, a country such as Nigeria, reputed 1

Eg, Denmark was reported to have cut aid worth $3.16 million to Tanzania in 2006, prompting the country to hasten the passage of its new anti-corruption law in 2007. Recently, the President of Nigeria, Dr Goodluck Jonathan, urged the National Assembly to hasten the passage of two anti-graft bills before the legislature in order to avoid “blacklisting by the Financial Action Task Force (FATF)”.

2

Recently, President Goodluck Jonathan had to formally urged Nigeria’s National Assembly to hasten the passage of two anti-graft bills before the legislature in order to avoid “blacklisting by the Financial Action Task Force (FATF)”.

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for its war against corruption, particularly during the first eight years of return to civil rule (1999-2007), is still grappling with a reform of its statute books in line with its international commitments and obligations. Other countries, including the Republic of South Africa until recently, don’t even have centralised institutional mechanisms for monitoring and enforcing anti-graft laws. For many others, the needed human, financial and material resources for establishing appropriate legal and institutional mechanisms have been major challenges. Yet, without effective integration of international commitments into the domestic legal systems, the war against corruption and unethical practices in the public services and state institutions of African states would remain at best patchy. The required political will must also ensure that the enforcement agencies are fully protected with adequate powers, independence from undue political interference, and headed by and staffed by deeply committed individuals. Also, the process of purging corruption from public procurement – blacklists, debarments, etc should be strengthened. In some other countries where the needed legal, institutional and administrative frameworks are already in place, overlapping jurisdictions and multiplicity of enforcement mechanisms have often created confusion and at times conflicts. In Nigeria, the existence of the Code of Conduct Bureau, the Public Complaints Commission, the Independent Corrupt Practices and Related Offences Commission (ICPC) and the Economic and Financial Crimes Commission (EFCC) has meant that prospective complainants and their lawyers have to take extra care to study the laws in order not to run into jurisdictional cul de sac. Also, the absence of a single anti-corruption body has tended to create avoidable conflict among the various institutions and agencies having responsibilities for matters relating to corruption and other administrative abnormalities such as the National Prosecuting Authority, the police, the Directorate of Special Operations, the Special Investigations Unit, and the Financial Intelligence Centre http://www.transparency.org/news_room/in_focus/2007/u ncac_africa) Moreover, in some countries with multiplicity of institutions with overlapping jurisdictions that are not

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clearly defined, inter-agency conflicts have tended to slow down the progress of anti-corruption efforts. Traditional means of control of administrative discretion– administrative review, parliamentary oversight, judicial review, etc should be overhauled and strengthened, no doubt. Also, continuous supervision of public administration through such systems as the ombudsman, inspectorate, special commissions, prosecuting departments and authorities, parliamentary committees, etc should continue. Nevertheless, they should be streamlined in such a way that they compliment rather than antagonise the work of specialised anti-corruption institutions and agencies. In such circumstances, additional frameworks, such as the Inter-Agency Forum (Uganda), are needed for harmonisation and coordination of anticorruption activities of government. The idea of having a Department or Ministry to serve as the coordinating agency for setting agenda, formulating policies and coordinating national efforts, as is presently the case in some countries (Uganda) may worth being given a trial in other countries.1 Some anti-corruption legislations do not go deep enough to tackle the roots of corrupt and unethical practices in government and private businesses. Political corruption, in the sense of using public resources to fund election expenses of candidates and political parties, has long been recognised. For example, regulation of spending on elections and political party activities has remained a challenging task for anti-corruption efforts in Africa. Often, such regulation required intervention by way of amendments to the laws governing establishment, operation of political parties as well as the conduct of elections, matters that are often surrounded by intense controversies along partisan lines. Closely related to this is the perceived lack of independence of anti-graft agencies from governmental pressures. Indeed, political interference in the work of anti-corruption bodies are visible in Sierra Leone and Nigeria, where the powers to prosecute are vested in the Attorney General, a politician. In the Nigerian case, there was a running battle early in the life of the administration of President Yar’Adua between the EFCC and the Office of the Attorney-General of the Federation as to the exact locus of the power to prosecute for 1

However, the location of the agency in the Office of the President of Uganda is viewed with serious suspicion by civil society stakeholders

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corruption. The politics that surrounded the redeployment and later removal of Chairman of the anti-graft body seriously compromised the commitment of the Yar’Adua administration to the declared war against corruption doggedly prosecuted by Ribadu under the previous regime of Obasanjo.1 Perhaps more germane to the discussion are the general problems of the administration of justice systems in many countries that have slowed down the progress of anticorruption war. Delay in the administration of justice is particularly threatening to the interest of both the state and the accused persons. In fact, anti-graft bodies in Kenya and Nigeria have found slow judicial process as not helping in the anti-corruption efforts, necessitating a call for creation of specialised courts to try cases of corruption and economic crimes.2 Also, the perceived slow pace of progress in the trial of those charged for corrupt practices prompted the penchant for the EFCC to side-track the judiciary during the later part of the regime of President Obasanjo, a step that proved counter-productive and seriously dented the democratic credentials of the government. The use of the EFCC to hunt perceived opponents of the government, including state Governors, did mask the anti-corruption efforts of the government despite some remarkable achievements. Unfortunately, the subsequent resort to the process of plea bargain was also severely criticised; so was the granting of bail to and unduly long process of trying exGovernors accused of corrupt practices. Reform of the judiciary, including the rules of practice and procedure (both civil and criminal) as well as evidence that are designed to facilitate speedy and impartial administration of justice, is therefore an important component of the reform of the public service. This is to ensure that unethical and corrupt practices are appropriately sanctioned while those accused of such practices are guaranteed fair trial, including access to appropriate legal representation. This is important in order 1

However, the EFCC under Ribadu was criticised for being used as a weapon of political victimization of opponents; see The Guardian (Nigeria), Tuesday, March 27, 2007: 96

2

See “Nigeria: Rule of Law Frustrates Anti-Corruption War – Farida”, Daily Trust (Nigeria), Wednesday 3 June 2009

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to make sure that the fight does not become an instrument of political victimisation and/or intra-organisation conflicts, which may defeat the ultimate goal of a just society to which the war is directed. However, the judiciary itself, as well as the law enforcement agencies, must internally rid themselves of corrupt practices before they can effectively perform their duties in this regard. An overhaul of the criminal law and criminal procedure system would further require that witnesses and whistle blowers are protected by the state against reprisal attacks by organised criminal gangs and powerful corrupt elements in the society. Also, appropriate legislative frameworks for enforcement of judgments need to be put in place, including provisions for inter-state exchange of information and intelligence, apprehension and extradition of offenders, repatriation of laundered money, recovery of assets, etc. Effective legal and institutional mechanisms to tackle the scourge of corruption in such hitherto neglected areas as election expenses of candidates for public offices, funding of political parties, ill-gotten wealth, illicit wealth, unaccountable assets, etc. New efforts are also targeted at creating freedom of access to information that could be useful in tracking proceeds of corruption and securing conviction upon prosecution. Freedom of information is an important mechanism for tackling the menace of corruption. Coupled with legal protection for whistle blowing and rights to civil litigation by those who suffer damages that arise from corrupt practices, it is capable of creating a greater framework for effective prosecution of the fight against corruption. Unfortunately, freedom of access to information has not enjoyed much support in official circles because of the tendency to abuse the right which may threaten state security as well as unduly expose innocent public officials to premeditated ridicule. These are the kind of sentiments that were dominant in political circles in Nigeria that prevented former President Olusegun Obasanjo from signing the Freedom of Information bill, reluctantly passed by the National Assembly after sustained pressures mounted by the press, other civil society organisations and the opposition political parties in Nigeria (Abati, 2007). Subsequent efforts to represent the bill have not been successful to date.

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The opposition to freedom of access to information and whistle blower policy raises critical issues bordering on the system of access to justice in any country. It is not, however, a new concern and not a peculiarity of Africa. The contention between advocates of press freedom and press responsibility is part of the long-standing discourse bordering on state security and civil liberties (Farber (ed), 2008). Whatever be the case, President Obama’s inauguration advice on avoidance of making a “false choice” (http://www.washingtonpost.com/wpdyn/content/article/2009/01/20/AR2009012001146.html) between ideals and security should guide us to design a mutually acceptable policy that ensure that the maximum interest of the state is protected without jeopardising the goals of public service delivery and good governance which are the end results. In this case, a guarantee of fair and speedy trial within a reasonable time and effective judicial administration should moderate whatever inherent danger is in unrestricted access to information in the service good governance and anti-corruption ethics. The prevalence of anti-corruption laws and institutions simpliciter does not necessarily place a country high on the anti-corruption index. Even where laws and institutions exist, additional administrative and policy measures may still be required to translate ideals into realities. Moreover, anti-corruption laws, guidelines and practices have to take cognisance of prevailing ecological factors which define the limits of possibilities and constrain the capacity of the states, institutions and individuals to accommodate and adapt to changes. Thus, unless proposed laws and changes to laws are reconciled with cultural practices and traditions, there may be resistance to their provisions and difficulties in implementing them. The issue of gifts and other benefits is particularly relevant in this regard. For example, one of the identified obstacles to implementation of the United Nations Convention on Anti-Corruption (UNCAC) in Burundi are cultural traditions that prevent refusal of gifts (http://www.transparency.org/news_room/in_focus/2007/u ncac_africa). The ecological problems of the environment, including mass poverty and unemployment that makes enforcement of ethical codes and anti-corruption laws difficult to enforce,

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need to be taken into consideration. In the face of wide perception of government’s anti-corruption efforts as ineffective, there is the need for mass education and public awareness of governmental policies and programmes in order to carry the general populace along. Governments also need to be able to link such efforts to developmental achievements, and commit the citizens to view the efforts as contributions towards uplifting their living standards. A negative perception of government efforts in the midst of poverty and mass unemployment may threaten governmental efforts. For example, combined forces of the Nigerian security forces made several unsuccessful attempts to arrest a state Governor indicted for money laundering in the UK and facing corruption charges locally because of resistance from the accused person’s local community who ‘benefitted’ from his generosity amidst mass poverty and decayed infrastructures occasioned by eight years of misrule (http://www.newstimeafrica.com/archives/11862). Still on ecological factors, current approaches to the anti-corruption and integrity agenda may need reconsideration by the use of positive-reinforcing mechanisms. While the current emphasis on criminalising of corrupt practices may not necessarily be counter-productive, it has to be complemented by sustained programme of mass education and mobilisation that lay emphasis on the virtues of ethics, integrity and anti-corruption. The use of positive incentives to discourage corrupt practices and encourage compliance with the new anti-corruption laws may require forgiving past offences and enforcing the laws against new ones. Also, the use of non-criminal law to fight cases of corruption have proved useful in both the US and South Africa. The fact that a reward (a percentage of any successful claims) is attached to private litigation against corrupt practices under the False Claims Act is a good strategy already yielding positive results in the US.( http://www.speaker.gov/newsroom/legislation?id=0306) Also, in South Africa, the Protected Disclosure Act (No 26 of 2000) is designed to encourage honest disclosure of unethical practices (Camerer, 2001). Also, the recently passed WhistleBlower Protection Bill 2009 rewards informers with 5% of recovered sum. Governmental efforts must also address the fear of change that has constituted a major impediment to

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reform efforts in the public service. This requires a programme of change management that could strengthen the confidence of the core civil service for faithful and effective implementation of programmes and policies that might wrongly be perceived as threats to their individual or collective interests.

6. Conclusion Any consideration of the state of public administration in contemporary Africa necessarily has to take cognisance of the wide gaps that exist between the provisions of the laws and the practical realities on ground. Sure, the problem of enforcing anti-corruption and public ethics laws is a global phenomenon, and fighting corrupt practices is like “waging war against the inevitable” (Acemoglu and James, 1996: 153). As a study in the Philippines shows, the difficulty of determining when the life style of a public servant is inconsistent with his/her disclosure statement/lawful income is compounded by the lack of resources and timeconsuming nature of such investigations (The World Bank, 2009: 79). Countries therefore need to develop effective anticorruption tools. Constant collaboration between enforcement institutions/structures at national levels and monitoring and oversight institutions at extra-territorial levels is needed for regular review of the level of compliance and progress made on a country-by-country basis. Also, constant meetings and collaboration could allow for assistance in drafting/amending laws, enforcement mechanisms, and sharing of experiences. Moreover, such capacity building and professional approach to the discharge of the work of anti-corruption institutions would enhance their status and assist greatly in building public confidence in the reform agenda. Such collaborative approach could assist in ensuring effective mainstreaming of ethics, integrity and anti-corruption issues in the African public services and state institutions.

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Acknowledgement The paper is a revised and updated version of a presentation at the Conference on Promoting Good Governance for Ombudsman and Anti-Corruption Offices in Public Institutions in Africa, Tangier, Morocco, 10-12 May 2010. The author particularly thanks those high-level participants who completed the ‘Country Facts Sheets’ that provided additional information on the state of anti-corruption and integrity efforts in their respective countries.

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