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.” Continue reading