A South African “Abuse of Public Power” Offense? Some Suggestions for Drafting a Proposed Statutory Crime

South Africa has laws which criminalize various forms of corruption (bribery, embezzlement, and the like), yet officeholders have regularly exploited their positions of power for illicit gains (see here and here). Part of the reason for this is that it often can be very difficult to prove the elements of a specific corruption offense, even when it seems clear that the officeholder abused his or her authority. To address this problem, a prominent judicial commission in South Africa (known as the Zondo Commission) recently recommended that South Africa adopt a statutory criminal offense for the “abuse of public power.” The proposed offense would cover “any person who exercises or purports to exercise any public power vested in such person…otherwise than in good faith and for the purpose for which such power was conferred,” and if the prosecution can prove such abuse of public power, then the defendant can be subject to up to 20 years imprisonment and/or a maximum fine of approximately US$12 million.

If the offense sounds very broad, that’s because it is. The Zondo Commission’s proposal contemplates a low threshold for what would constitute an abuse of public power, with no restriction to officials of senior rank. To illustrate, the Zondo Commission offered a wide range of potential examples of “abuse of public power,” including not only conduct such as the president granting an unauthorized person access to the “national wealth,” but also conduct like a junior official who suspends a colleague due to “envy or revenge.”

Such a broad framing, however, could be problematic. For one thing, it risks inundating already overburdened law enforcement agencies and courts. This, in turn, can cause backlogs and delays, which may further undermine public confidence in the justice system, especially if it seems taxpayer funds and other public resources are being wasted on criminal prosecutions of inconsequential abuses that could be dealt with administratively. Furthermore, threatening public servants with harsh criminal penalties if they make any misstep that is judged after the fact to be an “abuse” risks unduly constraining officeholders in the proper performance of their duties and dissuading individuals from seeking careers in public service. Additionally, the ease of bringing, and winning, convictions for such a broadly and vaguely defined offense risks biased or politicized charges and prosecutions.

This is not to say that South Africa should reject the idea of creating a criminal offense of “abuse of public power.” But the Zondo Commission’s proposal can and should be modified to make it more appropriately targeted.

A useful model for South Africa might be a similar statutory offense that the Law Commission of England and Wales (an independent statutory body on law reform) proposed to the U.K. Parliament and the Ministry of Justice. The Law Commission recommended the creation of a statutory criminal offense of “misconduct in public office,” which would replace the U.K.’s existing common law misconduct in public office offense. The proposed statutory offense would be more precise and targeted, and would more narrowly define “misconduct in public office” as entailing both “corruption in public office” and “breach of duty in public office.” Corruption in public office, in turn, would require that the public officeholder to knowingly use his or her public position or power for the purpose of achieving a benefit or detriment, and that a reasonable person would find the behavior seriously improper. The Law Commission also recommended that the statute or the explanatory notes to the offense, as applicable, should: identify who would be regarded as a public officeholder under the statutory offense, define what ought to be considered a benefit or detriment, and describe the factors that a jury should be directed to consider in determining whether the officeholder’s conduct was “seriously improper.”

South Africa may well adopt some form of abuse of public power offense. President Cyril Ramaphosa declared that he would respond to the Zondo Commission’s recommendation by mid-December 2023, after careful study of the matter—including research into the approach taken by other jurisdictions. That comparative analysis is most welcome, because the Law Commission’s proposal would likely serve as a better model for South Africa to follow. The Law Commission has the right idea in crafting a statutory offense that is targeted at serious and blameworthy abuses of public office, and South Africa should consider following this approach as well, appropriately adapting models developed in the U.K. or elsewhere to the particularities of the South African context. A statutory criminal offense for the “abuse of public power” would be a potential game changer in South Africa’s legal framework and its anticorruption efforts, but it is important to get it right.

1 thought on “A South African “Abuse of Public Power” Offense? Some Suggestions for Drafting a Proposed Statutory Crime

  1. Natalie–Thanks for the update and the sensible suggestion. Do you think such an offense would be open to private prosecutions? If so, does that change your analysis at all (e.g., heighten the need to narrow the statute, or diminish the concern regarding overburdening prosecutors)?

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