Toward a normative consensus against corruption: legal effects of the principles to combat corruption in Africa.

• Author: Marong, Alhaji B.M.

INTRODUCTION

In February 1999, eleven African countries adopted a set of twenty-five principles as a framework for combating corruption in Africa, and in the continent's dealings with the outside world. (1) The negotiations were held under the auspices of the Global Coalition for Africa (GCA), a Washington-based intergovernmental policy forum dedicated to building consensus on development policy and priorities among African governments and their partners in development. The principles, referred to here as the "Anti-corruption Principles," address corruption in international business transactions, and in development assistance to Africa.

The "Anti-corruption Principles" followed on the heels of anti-corruption efforts in other regions of the world, particularly as they relate to the international business transactions. Notable efforts in this regard include the Inter-American Convention Against Corruption, concluded by Member States of the Organization of American States in 1996, and the Organization for Economic Cooperation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions that was adopted in 1997. (2) Earlier, the United Nations General Assembly adopted a Declaration against Corruption and Bribery in International Commercial Transactions. (3)

In this paper, I argue that since the 1970s, the international community has engaged in a discourse over corruption and its effects on the international economy and national societies. In some regions of the world, this discourse generated sufficient common understandings of the relationship between economies and corruption, and gave rise to legal norms to combat corruption. Both the OECD and Inter-American Conventions are outcomes of this set of discursive processes. On the other hand, except for their involvement with the processes within the United Nations General Assembly and the Centre for Transnational Corporations, African countries failed to take a regional initiative to combat corruption before 1997. That year, the issue was addressed as the main theme of the GCA Policy Forum in Maputo, Mozambique. (4) Since then, a specific African discourse on corruption is identifiable, taking place under the auspices of the GCA, and culminating in the adoption of the Anti-corruption Principles. More recently, efforts to fight corruption in Africa commenced at the sub-regional level. In May 2001, West African Ministers of Justice issued a Declaration in Accra, Ghana, calling upon the Secretariat of the Economic Community of West African States (ECOWAS) to elaborate a comprehensive Protocol on Corruption. (5) The Ministerial Declaration recognized the significance of the issue when it stated "corruption is not only a criminal issue but also impacts on the dynamics of national and international development that deserve collective solution...." (6)

It is my argument that the discourse on corruption within the United Nations, and the various regional organizations, has generated shared understandings of the negative impacts of corruption on the economic and development objectives of nations and people. It also illustrates the emergence of an international normative consensus against corruption. This consensus represents the emerging opinio juris sive necessitatis of the international community, thus, the beginning of the process of formation of a customary international law on corruption. Remarkably, the processes associated with the development of the African Anti-corruption Principles involved participation by an array of actors including states, international organizations, non-governmental organizations, and individuals. Arguably, this inclusive process engendered a perception of legitimacy, which, in turn, explains the increasing influence of the Anti-corruption Principles. (7)

Thus, by adopting the Anti-corruption Principles, African countries have joined the process of formation of an emergent customary norm. The implication of this situation is that if African countries fail to conclude a Convention Against Corruption as envisaged by Principle 25 of the Anti-corruption Principles, the current emerging opinio juris, together with supporting State practice, could form the basis of a regional customary law on corruption. (8) As such, governments would be under an obligation to take domestic measures to prevent their nationals (including legal persons), from engaging in corrupt activities in their dealings with officials of other countries.

Despite this argument, it is suggested that a regional convention on corruption would be the preferable regulatory option for Africa. Yet, even a convention would have little practical effect if African nations do not put in place adequate institutional and legal mechanisms at the domestic level to fight corruption. The lesson to be learned is that an effective strategy against corruption would require linkages between mutual operation of institutional and legal mechanisms at both the regional and national levels. There is no doubt that much depends on the effectiveness of domestic implementation measures such as: (1) the reform of many criminal laws or the enactment of new legislation that could be effectively enforced; (2) reform of public institutions to introduce greater accountability in the public sector; (3) political leadership that is more than rhetorically committed to fight corruption; (4) a general public that is intolerant of fleece, an engaging civil society to probe and reveal cases of corrupt practices; (5) an enabling environment for the free expression of public opinion; and (6) an independent judiciary. In effect, in many ways adherence to the rule of law is crucial to effectively fight corruption. (9)

DEFINITION AND HYPOTHESIS

There is broad agreement that corruption is the "abuse of public office for private gain." (10) This definition focuses on the public or governmental sphere, particularly, on the extent to which government involvement in the national economy provides opportunities for public officials to engage in rent-seeking behavior, often at the expense of government policy and public welfare. However, the definition does convey the misleading impression that corruption is unidirectional, rather than a two-way phenomenon. Every act of corruption involves at least two parties. Public officials are in many cases on the demand side, but their crime is no less than those, who pay bribes, or offer and induce the acceptance of other special treatment. (11)

The focus on the public sector corruption is nonetheless justified by statistical evidence, which, inter alia, demonstrates a correlation between the extent of the government involvement in the economy, and the amount of corruption. For example, the results of a 1996 survey of two thousand enterprises across forty-nine countries showed a higher incidence of corrupt practices in countries with more regulatory and bureaucratic requirements for business. (12) In addition, there is evidence that the more administrative discretion officials enjoy in approving regulatory requirements such as the issue of permits, licenses, or grants of the fiscal exemptions to business, the more the likelihood of corruption. (13) According to Wei:

The more discretion government officials have over the operation of business or lives of citizenry, the more likely corruption would occur and flourish ... labyrinthine government regulations create fertile grounds for government officials to extract rents, whereas an economy where government's role is minimal is less likely to breed corruption. (14) It is true that the exercise of official discretion could in many respects be abused leading to corruption. Common sense, therefore, dictates that public policy must seek to limit the extent of administrative discretion officials enjoy, so as to reduce opportunities for abuse. However, while this may provide a strong case for streamlining the role of the state in the economy in certain cases, and for the privatization of inefficient and monopolistic state enterprises, the state continues to have important socio-economic roles to play in poor developing countries, especially those in Africa. (15) In the area of corruption, the state, represented by political leadership and public sector elite, continues to have a crucial leadership role to play. Thus, instead of disengagement of the state from the economy, what Africa needs are more responsible and accountable governments, and a public sector committed to advancing the national socio-economic agenda. Greater public-sector responsibility and accountability will contribute not only to economic development, but also to the fight against corruption.

Having said that, it must be noted that improper exercise of public authority is not the only explanation for corruption in Africa. Other factors include the structure of public services, particularly the systems of recruitment, promotion, and compensation. In many African countries, recruitment and promotion processes are distorted in favor of friends, family, and political allies. There is little doubt that this has had a negative effect on the quality and capacity of manpower that end up in official positions. Moreover, the levels of remuneration are so poor compared to the private sector, that many officials are tempted to make up for the shortfall by demanding bribes before discharge of their official functions, for the issue of regulatory permits, or for the offer of government construction and procurement contracts. Inadequate or inefficient legal structures for the investigation, detection and prosecution of corrupt practices also contribute to the upsurge of this menace.

Consequently, a meaningful anti-corruption strategy in Africa will require a mix of administrative restructuring and legal reform measures. These reforms could be complemented by honest political leadership dedicated to the fight against...