FIGHTING CORRUPTION : NATIONAL INTEGRITY SYSTEMS, GOOD PRACTICE EXAMPLES

Transcription

1 FIGHTING CORRUPTION : NATIONAL INTEGRITY SYSTEMS, GOOD PRACTICE EXAMPLES Chairpersn: Themba Gdi, MP Standing Cmmittee n Public Accunts Tel: ; njacksn@parliament.gv.za Intrductin Cmbating crruptin is a tpical scietal and plitical discurse. Crruptin has serius negative cnsequences fr the Cuntry, gvernment and peple. Vigilance and preventive measures necessary t cunter its advance. Management and supervising persnnel bear special respnsibility in this respect. This paper intends t give insight int preventative measures and cuntry examples n basic structures and mechanisms t cmbat crruptin. Fundamental Principles There is a clear nexus between addressing crruptin, gd gvernance, transparency and the rule f law. The structural Cmpnent shuld be based n a set f institutins that prvide checks and balances; law enfrcement bdies etc. A strng and independent judiciary is the fundatin t fair and impartial justice. Anti-crruptin agenda shuld be grunded in the rule f law culture. Impartiality within the system shuld be a nrm. The abve need t be cnslidated r blstered by plitical will and brad public supprt Plitical will exists when the fllwing pre cnditins are met: Cmprehensive anti-crruptin strategy Independent agencies that are well resurced and plitically supprted Anti-crruptin laws that are enfrced. Legal and plitical structures have t be built n a number f mutually supprting strategic pillars and values. A free media which crrectly infrms and engender public debate; is crucial and ne f the essential cmpnents f a demcratic sciety. The rle f ther imprtant actrs, life civil sciety; parliaments, Auditr-General s ffice etc. Integrity : Gd practice examples: Different Cuntries have different mechanisms t prevent crruptin thereby restring the integrity f public sectr. Any system has t be infrmed by a dcumented and well cmmunicated cde f ethical behaviur. Fighting crruptin and achieving gd gvernance are imprtant challenges in Suth Africa. Since 1994, there have been a number f anti-crruptin initiatives, which culminated in the adptin f the Public Service Anti-Crruptin Strategy (PSAS). PSAS has a number f inter-related and mutually supprtive cnsideratins: Glbal Frum V Fighting Crruptin and Safeguarding Integrity Sandtn, Suth Africa 2 5 April 2007

2 Review and cnslidatin f the legislative framewrk Increased institutinal capacity Prtectin f whistle blwers and witnesses Imprved management and practices Management f prfessinal ethics Partnerships with stakehlders. Suth Africa has strng plitical will t fight crruptin: Legislatins: Criminalises crruptin Prtects whistle blwers and witnesses Prvides access t infrmatin Fr Special Cmmissins and Tribunals T recver prceeds f crime Internatinal c-peratin in criminal matters. Suth Africa als has independent institutins that fight crruptin: Auditr-General Public Prtectr Public Service Cmmissin As well as a well functining criminal justice system. It als has cdes fr cnduct f Public Officials: Management Accuntability Internal Cntrl arrangements. And cdes that deal with breaches f cnduct. Suth Africa has a relatively cmprehensive and practical legislative framewrk which gives a gd basis fr cmbating crruptin in the public sectr, including gd financial management and administratin (Public Finance Management Act). The legislative and institutinal frame is in place, the challenge is implementatin. Cnclusin Integrity systems supprted by gd legislatin and plicy is imprtant, but effective implementatin and enfrcement f such legislatin is a critical step in effrts t prevent and fight crruptin. Bigraphy f Presenter Nt Received. Glbal Frum V Fighting Crruptin and Safeguarding Integrity Sandtn, Suth Africa 2 5 April 2007

3 FIGHTING CORRUPTION : NATIONAL INTEGRITY SYSTEMS, GOOD PRACTICE EXAMPLES 1. Intrductin. Preventing crruptin is an imprtant issue in scietal and plitical discurse, as evidenced nt nly by recent cases f crruptin, but als by increased awareness f the prblem. Crruptin causes serius ecnmic damage, interferes with fair cmpetitin and destrys cnfidence in the integrity and functining f public administratin. In rder t fight crruptin effectively at all levels f administratin, it is imprtant t strengthen vigilance twards crruptin-related activity, cncentrating n preventing such activity. Preventive measures, including effective cntrl mechanisms, are necessary t cunteract in advance as many factrs cntributing t crruptin as pssible. Management and supervisry persnnel in public administratin, plitics and the private sectr bear a special respnsibility in this respect. The paper intends t prvide insight int preventative measures t discurage and deal with crruptin. It des s by prviding examples f cuntries that have institutinal mechanisms either in the frm f legislatin r ther measures t discurage and detect crruptin. A brief sessin hwever, will prvide an verview f basic structures and mechanisms that need t be in place in rder t effectively deal with crruptin. Amngst ther things, the sectin will highlight the rle f Judiciary, plitical will and the rle f civil sciety in fighting crruptin. 2. Fundamental principles 2.1 Plitical will versus Independent Judiciary Internatinal practitiners, plicymakers and refrmers have learned ften the hard way, that there is a clear nexus between addressing crruptin, gd gvernance, transparency and the rule f law. Addressing crruptin issues within the judiciary and law enfrcement cmmunity shuld be a matter f highest pririty fr all gvernments and civil sciety. Universal right t fair and impartial justice and the administratin f justice with integrity becmes crucial in dealing with crruptin. If these key institutins are t weak, unprfessinal r crrupt, then the rights f citizens and impartial justice are illusinary. In tday s glbalising wrld and age f terrrism, internatinal, plitical and ecnmic cmpetitin it is crucial fr every cuntry t adpt and implement an anti-crruptin agenda grunded in the rule f law culture. One f the essential institutins necessary t accmplish this scietal gal is a strng, independent and predictable judiciary. Judicial independence requires judges t be relatively free frm undue interference in the decisin-making prcess and that justice is the nrm, nt the exceptin. Impartially within the system therefre is the end gal. Hwever, sme schlars have argued that what is mst needed in mst cuntries are nt new cnstitutins, laws r treaties but the plitical will and strng, independent institutins t implement them as well as brad plitical supprt. While cuntries are struggling t find ways t create and nurture an independent judiciary within different sci-ecnmic cntexts, the reality is that mst have nt succeeded because f a lack f bth plitical leadership and brad based public supprt. Plitical will requires cmmitment f plitical leaders t eradicate crruptin and exists when the fllwing pre-cnditins are met: Existence f a cmprehensive anticrruptin strategy. Independent anti-crruptin agency is prvided with sufficient persnnel, resurces and plitical supprt. Anti-crruptin laws are fairly enfrced by the independent anti-crruptin agency. Glbal Frum V Fighting Crruptin and Safeguarding Integrity Sandtn, Suth Africa 2 5 April 2007

4 Plitical will therefre is the mst imprtant pre-requisite fr the success f a cmprehensive anti-crruptin strategy. Other issues are secndary. Fr example, checking whether r nt the plicy cntext within the cuntry hinders r favur crruptin r institutinalising a cde f gd cnduct and ethical standards within the public service. Legal and plitical structures have t be built upn five mutually supprting strategic pillars and values, which are: 1. Impartiality and bjectivity. 2. Integrity. 3. Transparency. 4. Accuntability. 5. Public trust. A penlgy f gvernance issues such as transparent appintments, prmtin and disciplinary prcess, financial and administrative independence, persnal security f judges, security f tenure, the fair and effective enfrcement f curt rders, access t judicial rules and decisins, addressing judicial interference and crruptin are all high pririty in discuraging crrupt behaviur. Supprt fr engaged media, the public and civil sciety als prvide the necessary platfrm fr debate. 2.2 The rle f media and civil sciety A free media ranks alngside an independent judiciary, as ne f the tw pwers that shuld nt be held accuntable t pliticians. Bth serve as ptent cunter-frces t crruptin and must receive sufficient prtectin. Unlike judges, public prsecutrs and attrneys-general, the privately wned media is nt appinted r cnfirmed in the ffice by pliticians. Withut free media, civil sciety is crippled, bth by a lack f infrmatin and inability t engender public debate. Censrship f media, direct r indirect, is unacceptable, thus laws restricting the right f news media t freely gather and distribute infrmatin must be ablished and gvernment authrities must nt interfere with the cntent f print r bradcast news r restrict access t a news surce. Freedm f expressin and freedm f media are amngst the mst basic human rights and an essential cmpnent f any demcratic sciety. A free, independent and pluralistic media is essential t a free and pen sciety and t accuntable systems f gvernment. Free media als needs t be supprted by a vibrant and independent civil sciety. Civil sciety a needs minimum guarantees f freedm f assciatin and freedm f speech. In recent times plicy-makers have cme t realise that demcratic institutins are fragile and that market frces alne are inadequate t ensure scial and ecnmic equity withut the cuntervailing participatin f civil sciety in decisin-making prcesses. Respnsible nngvernmental rganisatins (NGOs) ensure that these prcesses are run demcratically and accuntably but it is als true that many NGOs are run in neither fashin. Civil sciety encmpasses the expertise and netwrks needed t address issues f cmmn cncern, including crruptin. Crruptin in a sciety invlves tw principal actrs namely, the gvernment and the private sectr. Civil sciety is typically the majr victim. As pwer shifts frm the centre t lcal authrities, pprtunities fr crruptin shift dwnward t peple wh are in direct cntact with civil sciety. This means that the ability f the civil sciety t detect and reverse the activities f the public fficials is enhanced by the prximity and familiarity with lcal issues. In discharging its rles, the civil sciety has the duty t mnitr the actins f thse in pwer and ensure an accuntable, transparent and efficient use f public resurces. The civil sciety als needs t mnitr the media and the cntent f its reprts. While there may be ther imprtant rle actrs, like Parliaments, the Executive, Anticrruptin agents, the Independent Audit Office, that are nt mentined in the reprt, their rle in fighting crruptin cannt be veremphasised. Glbal Frum V Fighting Crruptin and Safeguarding Integrity Sandtn, Suth Africa 2 5 April 2007

5 3. Integrity: Gd practice examples Different cuntries have different mechanisms t prevent crruptin thereby restring the integrity f public sectr. It is imprtant t highlight that any system has t be infrmed by a dcumented and well-cmmunicated cde f ethical behaviur within the public service that seeks t discurage crrupt behaviur. Belw is the list f gd practice examples. Suth Africa Achieving gd gvernance and fighting crruptin are amng the mst imprtant challenges facing Suth Africa and its Gvernment. Indeed, a number f anti-crruptin initiatives were undertaken pst-1994, culminating in the adptin f the Public Service Anti-Crruptin Strategy. The Public Service Anti-crruptin Strategy cntains a number f cnsideratins, which are inter-related and mutually supprtive. These are: Firstly, review and cnslidatin f the legislative framewrk: this requires the existing Crruptin Act t be replaced with an effective and mdern anti-crruptin law, and ther related legislatin t be refined. The legal framewrk must prvide fr: Secndly, increased institutinal capacity: this requires an increase in anti-crruptin capacity fr curts, existing natinal institutins that have anti-crruptin mandates and departmental anti-crruptin capabilities. In particular, it prpses that: Thirdly, imprved access t reprt wrngding and prtectin f whistle blwers and witnesses: this fcuses n imprving applicatin f the prtected disclsures legislatin, witness prtectin and htlines. Furthly, prhibitin f crrupt individuals and businesses: this prpses that mechanisms be established t prhibit crrupt emplyees frm emplyment in the public sectr and crrupt businesses frm ding business with the Public Service. Fifthly, imprved management plicies and practices: this requires specific imprvements t prcurement systems, emplyment arrangements, the management f discipline, risk management, infrmatin management and financial management. These prpsals include the extensin f the system f disclsure f financial interests, screening f persnnel, establishing mechanisms t regulate pst-public Service emplyment and strengthening the capacity t manage discipline. The sixth cnsideratin is abut management f prfessinal ethics: this requires a renewed emphasis including the establishment f a generic ethics statement fr the Public Service that is supprted by extensive and practical explanatry manuals, training and educatin. Suth Africa has strng plitical cmmitment t fight crruptin, bth in ur plitical leadership and thrugh cllective civil mbilisatin. There is range f legislatin, including legislatin that criminalizes crruptin, prtects whistleblwers and witnesses, prvides access t infrmatin t rdinary citizens, legislatin fr special cmmissins and tribunals, legislatin t recver the prceeds f crimes, including crruptin, a well as legislatin dealing with internatinal cperatin in criminal matters. Suth Africa has independent institutins that fight crruptin, namely the Auditr-General, Public Prtectr and the Public Service Cmmissin, and the cuntry has a well-functining criminal justice system. The cuntry is cnstantly develping management, accuntability and internal cntrl arrangements, including perfrmance, emplyment and prcurement plicies. There are cdes fr cnduct f Public Officials and cdes that deal with breaches f cnduct. Suth Africa has a relatively sphisticated and cmprehensive framewrk, which deals with transparency in prcurement and financial management. The new Preventin f Crruptin Act rectifies the shrtcmings f the Crruptin Act f The Act is clear and explicit in its definitins and prvides tls fr investigatin and prsecutin as well as mre severe penalties. It als prvides fr extra-territrial jurisdictin ver ffences, which is essential fr cmpliance with internatinal best practice and the practical issues f enterprises, which d business utside Suth Africa. Glbal Frum V Fighting Crruptin and Safeguarding Integrity Sandtn, Suth Africa 2 5 April 2007

6 There is pwerful legislatin t seize and frfeit assets by civil law prcedures where the assets are the prceeds f crime r were used t cmmit a crime. There is als a well-develped legislatin, which regulates the financial management f the public sectr (The Public Finance Management Act, 1999), in line with internatinal best practice. Suth Africa has unique legislatin, which empwers the general public t require infrmatin frm the public sectr (and t a lesser extent frm the private sectr) and t challenge administrative decisins under the Prmtin f Administrative Justice Act and the Prmtin f Access t Infrmatin Act. These laws greatly enhance transparency and cntribute t clean gvernment. The Prtected Disclsures Act prvides state-f-the-art prtectin t whistle blwers in a wrkplace, but it requires guidelines n plicy and prcedure fr implementatin t be effective. The crprate sphere is less regulated, but there are effrts underway t prvide adequate regulatin, which will strike a balance between prtecting the public interest and prviding an envirnment in which business can flurish. Suth Africa has a relatively cmprehensive and practical legislative framewrk, which prvides a very gd basis n which t cmbat and prevent crruptin in all aspects f the public sectr, including gd financial management and administratin. Suth Africa's transparency legislatin, with its well-defined legal review prgram, is amng the best in the wrld. This legislative framewrk will be greatly enhanced with the prmulgatin f the Preventin f Crruptin Bill, which will result in effectiveness in investigating and prsecuting crruptin. A range f agencies have been created t investigate and prsecute crruptin and prvide recurse fr the public t reprt crruptin. Whistle blwers and witnesses are prtected by law. The public sectr has uneven capacity t enfrce and cmply with the legislatin. The curts are verladed and struggle t retain experienced prsecutrs. The legislative mandates f sme law enfrcement and ther agencies verlap. Hwever, this shuld be reslved by rganisatinal and structural means, clarificatin f rles, and imprved c-peratin and c-rdinatin. Cnclusin The need t fster and sustain high levels f ethics in the public service has cme int the sptlight with a glbal shift f fcus. Increased cncern abut crruptin and the decline f cnfidence in bth the integrity and capacity f public administratin has prmpted many gvernments t review their appraches t ethical cnduct. Integrity f public fficials can cme under pressure in a variety f ways, and it is thus essential that ethical cdes are tailred t a sciety's cnditins. Integrity testing can have a rle t play, and the assets and liabilities f fficers at particular risk may need t be mnitred. While it is imprtant t have integrity systems in place supprted by gd legislatin and plicy, effective implementatin and enfrcement f such legislatin is a critical step in effrts t prevent and fight crruptin. Glbal Frum V Fighting Crruptin and Safeguarding Integrity Sandtn, Suth Africa 2 5 April 2007