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

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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