Author Archives: Katie King

Anticorruption Co-opted: Problems with the Purported Polygamy-Corruption Connection

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Whether or not a country’s culture can be blamed for causing corruption has come up on the blog before.  This question comes up in a great variety of contexts, but one that may be less familiar to many readers is the purported causal link between polygamy and corruption. Polygamy has been called a “breeding ground” for corruption, and blamed for the spread of corruption in, for example, South Africa, Ghana, Nigeria, and South Sudan. But the empirical evidence to support this claim is very weak. Given that weakness, it’s somewhat puzzling why the claim has gotten so much traction in some quarters. This may be one of those cases where the alleged link between a cultural practice (here, polygamy) and corruption is motivated less by a concern about corruption, and more by objections to–and deep social clashes over–the cultural practice. Corruption, in other words, may be a stalking horse for other concerns. Continue reading →

Scorpions with Wax Wings: How Anticorruption Agencies Can Avoid Flying Too Close to the Sun

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Public rhetoric about the battle against corruption often centers on the need for “zero tolerance”–the need for institutions, including perhaps most importantly law enforcement agencies–to aggressively root out graft through vigorous prosecution, no matter the circumstances.  What more often goes unsaid, though, is that actually following such strategies may end up being counterproductive.  The aggressive pursuit of corruption-busting litigation can lead to political elites pulling the rug out from underneath the anticorruption agency (ACA).  In South Africa, for example, the National Assembly dissolved the Scorpions, a special investigative unit, once it began going after high-ranking government officials.

As a result of the danger of being undercut, ACAs face an inherent tension in their work: they want to fight corruption to the greatest extent possible, but fighting it too aggressively can lead to the agency’s ability to perform its duties being completely undercut.  How far, then, can an ACA push? Though the unique context of any given ACA means no universal lessons exist, there are some general guidelines ACAs should consider when shaping their anticorruption efforts, if they want to avoid a backlash that ultimately consolidates the power of the corrupt:

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Uses and Abuses of Anticorruption Tactics in the Gambia

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The tiny African country of the Gambia rarely receives international media attention.  Perhaps once a year, shocking statements from its president, Yahya Jammeh, might win it a small news blurb, but even then, these stories tend to be treated in a perfunctory, “look at this wacko human rights abuser” manner: reporting something awful or absurd—like his declaration that LGBT people are “vermin”, or that he has developed a cure for AIDS—but doing so in a derisive or condescending tone. A headline like “Five Crazy Things About Gambia’s Jammeh” is fairly typical.  (The latest zaniness-oriented reporting has been centered on an incredibly poorly planned attempted coup by two Gambian-Americans against whom the U.S. Department of Justice just filed charges.)

However, such gawking, hit-and-run style reportage overlooks the very real, very sinister way that Jammeh has solidified his hold on power by co-opting the language of anticorruption as a rhetorical tool to justify his tenure, and by using purported anticorruption crackdowns as a weapon to eliminate his opponents.  By utilizing the language of anticorruption advocates, and selectively throwing certain members of the government to the wolves while perpetually tossing the (anticorruption) book at his political opponents, Jammeh has managed to create the myth that his administration is at least relatively committed to fighting corruption, and is the best hope for the Gambia to pursue economic development.

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Combating Corruption via Constitutional Courts: South Africa as a Model?

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Can a constitutional court function as an effective anticorruption advocate? South Africa’s Constitutional Court (the “ConCourt”) has taken on exactly such a role. Perhaps the high water mark of the ConCourt’s efforts to combat corruption came in Glenister v. President of South Africa, a 2011 case in which the court found the Constitution contained an implied governmental obligation to establish an effective anticorruption unit. The ConCourt’s track record on anticorruption is admittedly not perfect. The legislature has yet to fully give effect to Glenister, and the declining power of parliamentary moderates may impede full implementation of the decision. Perhaps more troubling, in 2013, two ConCourt justices refused to testify before a tribunal investigating claims that, on behalf of President Jacob Zuma, a lower court judge allegedly requested that the two justices issue Zuma-friendly rulings. Nonetheless, in addition to its watershed decision in Glenister, the ConCourt has found against Zuma in several cases, despite six of its eleven justices being appointed by him. When combined with its continued insistence that the anticorruption unit must be truly indenpedent, the ConCourt’s past successes in changing government behavior suggest that it may yet succeed in forcing parliament to act on Glenister.

Overall, then, the story of the South African ConCourt’s role in fighting corruption appears to be an optimistic one. The ConCourt’s example seems to demonstrate that not only can a constitutional court be an anticorruption tool, it can be such a tool even in an incredibly unfriendly political environment. Indeed, the South African ConCourt’s success may suggest that in systemically corrupt environments, the courts–and the Constitutional (or Supreme) Court in particular–may be the best hope for reformers seeking bulwark against corruption and an instrument of change.

On closer examination, however, it appears that the South African ConCourt’s success may not be easy to replicate elsewhere. The South African ConCourt has managed to attack corruption, despite the political and institutional odds stacked against it, due to a set of unusual, perhaps unique, circumstances.

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Spy Tapes, Scorpions, and Bribe Solicitation: Prosecutorial Decisions in South Africa

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South African President Jacob Zuma is currently embroiled in a corruption investigation associated with the so-called Nkandla scandal. This is hardly the first time President Zuma has had to contend with corruption accusations, but he as so far managed to escape unscathed. One of those earlier incidents involved allegations that President Zuma received bribes from a defense contractor, but the National Prosecuting Authority (NPA) dropped its investigation of those allegations in 2009. In explaining his decision to drop the investigation, Mokotedi Mpshe, the acting head of the NPA, cited “collusion between the former heads of the Directorate of Special Operations (DSO) and NPA to manipulate the prosecutorial process.” The evidence of this ostensible collusion? Wiretapped recordings of conversations between a former NPA head and then-DSO head Leonard McCarthy, who was responsible for directing some of the investigation into President Zuma. Mpshe claimed that the recordings, which have since become known as the “spy tapes,” showed an “abuse of process” via interference in the timing of the prosecution, forcing him to end the investigation.

This 2009 case has been in the news again, both because of the current corruption allegations against President Zuma, and also because the South African Supreme Court of Appeals recently ordered the NPA to hand over the spy tapes and associated documents to the opposition Democratic Alliance. Although the audio recordings themselves have not been made public, excerpts from their transcripts can be read online. From these excerpts (which are more extensive than those previously released in 2009), it appears the NPA’s decision to drop the case against Zuma was wrong-headed.

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Bringing Down the House?: Legislative and Political Limits on Anticorruption Efforts in South Africa

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A swimming pool. A cattle corral. An amphitheater. These are the sorts of ostensible “security upgrades” at Nkandla, the home of South African president Jacob Zuma, which filled the Public Protector’s report on the misuse of state funds.  As Eden pointed out in a previous post, these salacious details spread through the South African media like a firestorm, leading to calls for President Zuma to resign—or at least pay back the money—and adding to the growing reputation of Thuli Madonsela, South Africa’s “Public Protector“, an ombudsman-like position constitutionally charged with investigating improper government conduct.

Madonsela, who helped draft South Africa’s current constitution, was unanimously nominated by a National Assembly committee and appointed by President Zuma in 2009.  Though as Public Protector she is unaffiliated with any political party, she was previously a member of the African National Congress, the party that has dominated South African politics since the end of apartheid.  Her persistence in fighting corruption, though, seems to have come as a surprise to her former compatriots, who have resorted to personal attacks; the deputy defense minister, for example, recently accused her of being a CIA spy.  In a country which has been repeatedly criticized for inadequately addressing corruption, Madonsela’s investigations into cabinet officials and the police commissioner have provided one of the few signs of accountability.  Her report on the expenditures at Nkandla, which calls for President Zuma to make a partial repayment, is her highest-profile work thus far.

However, despite all the praise directed towards Madonsela—like inclusion in Time’s “100 Most Influential People” of 2014—the furor around “Nkandlagate” has revealed several severe limitations on the office of the Public Protector. Continue reading →