by Janette Minnaar
Corruption takes place when someone illegally abuses power for personal profit. Corruption is a crime and literally means “to destroy”. It involves bribery, nepotism, abuse or misuse of power and favouritism.
2. PREVENTION AND COMBATING OF CORRUPT ACTIVITIES ACT NO. 12 OF 2004
The new South African Prevention and Combating of Corrupt Activities Act No. 12 of 2004 (the Act) is much wider in its ambit than the previous Corruption Act of 1992. The broad definition of corruption is: Any person who directly or indirectly accepts, agrees to or offers any unlawful gratification from or to any other person to benefit himself/herself or a third party is guilty of corruption (the author’s own formulation). Gratification is a broad concept and refers to any donations, gifts, contract of employment, or services, and the avoidance of punishment or loss.
A person who offers to perform a corrupt service will be guilty of corruption even if he/she is not in a position to deliver the service. The Act reinstates the common-law offence of bribery and makes it easier to prosecute different forms of corruption by prohibiting six forms (called parts in the Act) of corruption.
The Act criminalises corruption in the public and the private sectors and corrupt practices by a South African on foreign soil. A South African citizen who corrupts a foreign public official may be prosecuted in South Africa.
There is a duty on persons who hold a position of authority or who knew or ought reasonably to have known or suspected that any person has committed an offence in terms of the Act or theft, fraud, extortion, forgery or uttering involving more than R100 000 to report such offence to a police official. Failure to report is an offence (section 34).
3. RATING OF CORRUPTION AND INTEGRITY
There are different methods of trying to measure the level of integrity or the corruption rates in a country. Suffice it to say that it is difficult to measure the levels of crime in a country, since crimes such as corruption are hidden in nature. How does one measure something if one does not know whether it exists?
In this article, I shall refer to three different studies done over a number years. The first is a corruption perception index done by Transparency International; the second is a study done by the United States Centre for Public Integrity; and the last is a Bribe Payers Index (also done by Transparency International).
3.1 CORRUPTION PERCEPTION INDEX – TRANSPARENCY INTERNATIONAL
In 2002, Transparency International did an index of how corrupt a country is perceived to be by others. The Corruption Perception Index stated that countries on the African continent were amongst the most corrupt countries in the world (see www.transparency.org). Transparency International also recognised that corruption had a damaging impact on human and economic development, especially in low-income countries.
The limitation of this study is that it refers only to perception. The actual level of corruption was not measured. Perception is a subjective viewpoint and, in my view, is therefore not a reliable source of information.
3.2 STUDY BY THE UNITED STATES CENTRE FOR PUBLIC INTEGRITY
The Centre for Public Integrity is a non-profit, non-partisan, tax-exempt organisation, which conducts investigative research and reporting on public-policy issues in the United States of America and around the world. In April 2004, the Centre published an extensive report, called the Global Integrity Report (www.publicintegrity.org). This report provides in-depth reports on the state of public integrity and corruption in 25 countries. These reports, written and reviewed primarily by in-country experts, provide a probing look at national anti-corruption efforts.
Each report on a country includes the following topics:
• Key data on that country.
• Media coverage of recent corruption-related events in the form of a corruption timeline.
• A ground-level view of corruption by a leading investigative journalist.
• An analysis of the state of public integrity by a leading social scientist.
• An “integrity scorecard”, which includes peer-reviewed scores, commentary and references on 80 integrity indicators.
The “Public Integrity Index” is the centrepiece of the Global Integrity Report and provides a quantitative scorecard of governance practices in each country. The Public Integrity Index assesses the institutions and practices that citizens can use to hold their governments accountable to the public interest. The Public Integrity Index does not measure corruption itself, but rather the opposite of corruption - the extent of citizens' ability to ensure that their government is open and accountable.
Each country was assessed in terms of six categories, namely:
• Civil society, public information and media.
• Electoral and political processes.
• Branches of government.
• Administration and civil service.
• Oversight and regulatory mechanisms.
• Anti-corruption mechanisms and rule of law.
3.3 TRANSPARENCY INTERNATIONAL’S BRIBE PAYERS INDEX
In 2006, Transparency International published a Bribe Payers Index (BPI). This index was based on extensive research.
On page 3 of the report itself, the following is stated:
“The BPI is a ranking of 30 of the leading exporting countries according to the propensity of firms with headquarters within their borders to bribe when operating abroad. It is based on the responses of 11,232 business executives from companies in 125 countries to two questions about the business practices of foreign firms operating in their country, as part of the World Economic Forum’s Executive Opinion Survey 2006.
To assess the international supply-side of bribery, executives are asked about the propensity of foreign firms that do the most business in their country to pay bribes or to make undocumented extra payments. The survey is anonymous. The questions on which the BPI is based first ask respondents to identify the country of origin of foreign owned companies doing the most business in their country. Respondents are then asked:
‘In your experience, to what extent do firms from the countries you have selected make undocumented extra payments or bribes?
Respondents are asked to answer on a scale of 1 (bribes are common) to 7 (bribes never occur). In calculating the BPI, the answers are converted to a score between 0 and 10, and the ranking reflects the average score.
The study showed that companies that operate in a developed world are less likely to offer bribes in that country, whereas the opposite is true for low-income countries (LICs – defined by the World Bank at www.worldbank.org).
On page 10 of the report, it is stated that:
“… in LICs, many of which are characterised by poor governance and ineffective legal systems for dealing with corruption, it appears that many companies resort to corrupt practices. The result is that the countries least equipped to deal with corruption are hardest hit, with their anti-corruption initiatives undermined. This helps trap many of the world’s most disadvantaged people in chronic poverty.”
In my view, the above powerful statement emphasises the importance of proper law-enforcement to deter big corporates from taking advantage of LICs.
South Africa was unfortunately ranked twenty-fourth. A poor corruption index inevitably has an unfavourable influence on the investment climate of a country. Although this study was done on a wide sample of participants, I believe that there are also limits to the application of this study, because participants were requested to give their view based on their “experience”. This is a subjective measure and not necessarily based on fact.
Irrespective of how corruption is measured, it remains an enemy of the people and a destabiliser of the principles of a democracy. I am ending with a quotation from the Public Integrity Index published by the Centre for Public Integrity, in April 2004:
“Corruption erodes public trust in government, undermines the rule of law, weakens the state, and hinders economic growth by discouraging investment. Corruption has an extremely negative impact on social and civil society maturation and the establishment of effective and responsive democratic government.”
Dr J H Minnaar-van Veijeren
Associate of the Ethics Institute of South Africa
Tel: 012 342-2799
The Namibia Institute for Democracy
Transparency International, Bribe Payers Index (BPI) 2006, Analysis Report
Public Integrity Index - www.publicintegrity.org