PAUL HOFFMAN COUNTERING THE C RRUPT The what, who, where, why and how-to of countering corruption CORRUPT Countering the Corrupt The what, who, where, why and how-to of countering corruption Countering the Corrupt The what, who, where, why and how-to of countering corruption Paul Hoffman and Konrad Adenauer Stiftung 2021 First published 2021 by Siber Ink CC PO Box 30702 Tokai 7966 Cape Town SOUTH AFRICA www.siberink.co.za © Konrad Adenauer Stiftung ISBN 978-1-928309-36-9 (print format) ISBN 978-1-928309-37-6 (pdf format) Attribution-NonCOMMErciaL-SHAREALikE 4.0 IntErnationaL (CC BY-NC-SA 4.0) The terms of this licence can be found at https://creativecommons.org/licenses/by-nc-sa/4.0/ Typesetting by G J du Toit Cover artwork by Sean Daniel Printed and bound by Tandym Print, Cape Town Dedication For the Activists, the Whistle-blowers and all who suffer in places in which the rule of law is so fragile that human rights are violated by the corrupt. v Foreword BY MR JUSTICE I G FARLAM Corruption is one of the great scourges of our age. As this book makes clear, it is estimated that trillions of dollars are paid in bribes every year and that developing regions lose ten times more to corruption than they receive in foreign aid, with illicit outflows of the funds that they desperately need totalling more than 1 tril- lion US dollars per year. The reason for this is not a lack of laws prohibiting corrup- tion in its various forms (there is no shortage of them) but the impunity enjoyed by those guilty of contravening them, resulting from their control of the institutions which are supposed to see to it that the law is enforced. This book pulls together the themes discussed at four conferences on the topic which were held from 2014 to 2018 and which were organised by the Konrad Adenauer Stiftung and the Institute for Accountability in Southern Africa , which campaigns as Accountability Now and of which the author is a co-founder and a director. The book succeeds admirably in achieving its main aim, which is to provide, in what the author calls ‘a digestible and easily accessible format’, the gist of those discussions. All persons with an interest in the combatting of corruption in its various forms will find much to inform them as to the nature and seriousness of the problem and as to how it may best be countered. They will be encouraged by the details which are given of countries where the necessary public will to vote a corrupt regime out of office has been created and where satisfactory measures have been, or are being, taken to root out corruption, to recover some at least of the proceeds thereof and to punish the offenders. The book also contains an enlightening chapter on the protection of whistle blowers, by whose help many corrupt schemes can be frustrated and the miscre- ants responsible therefor punished. It is written by Cynthia Stimpel, herself a dis- tinguished whistle blower, who saved SAA, and ultimately the South African tax- payers R256 million by courageously and to her own personal detriment disclosing a proposed illegal procurement transaction. The book is being published at a very appropriate time because in June 2021 (unless the pandemic makes a postponement unavoidable) a special session of the United Nations General Assembly is to be held on corruption to deal with such issues as grand corruption, kleptocracy and state capture. Colombia has already given notice of its intention to propose the establishment of an International Anti- Corruption Court, modelled in some respects on the International Criminal Court, which was set up by the Statute of Rome. The book contains compelling arguments why this proposal should be accepted. A court based on the complementarity prin- ciple, as is the International Criminal Court, may prove, as the author says, to be vii viii COUNTERING THE CORRUPT ‘the most elegant solution to the problem’. This is because ‘(c)ountries not desirous of having their leaders internationally prosecuted would accordingly be incentiv- ised to impose the anti-corruption and integrity measures on the home front.’ All persons involved in any way with the special session will be well-advised to obtain copies of the book. It will enable them fully to understand the issues at stake and to participate meaningfully in the debate. A chapter which should prove of great assistance to those participating in the special session (whether or not they decide in favour of the establishment of an International Anti-Corruption Court) contains an account of a brilliant proposal by the Hon Kate O’Regan, a former justice of the South African Constitutional Court, that the sanctions scheme applied by the World Bank in respect of develop- ment projects funded by the bank should be followed and where necessary adapted by governments, lenders and procurers of goods and services when entering into procurement contracts. The essence of the scheme as applied by the bank is that those to whom money has been lent have to account for every item of expenditure connected to the loan. If a credible and complete paper trail of the expenditure is not provided on a monthly basis, the bank simply stops advancing money and in the absence of an accountable explanation for the failure so to provide the borrower is blacklisted. This system of sanctions effectively stamps out corrupt activities because the con- tractors, as it is put, ‘prefer the prospect of return business in future above the prejudice of being blacklisted’. While this book records the joint conferencing efforts of Accountability Now and the KAS Rule of Law in Sub-Saharan Africa Programme, which is based in Nairobi, its relevance is global. I G Farlam (Retired) Judge of Appeal South Africa Preface BY DR A. WULff It took 55 years of my life before I came into contact with corruption for the first time. It was in April 2014, and I had just spent a month in Kenya as the new head of the Rule of Law Program for Sub-Saharan Africa. The Project Advisor from our office had invited me to his home, and on a Friday evening my driver Jacob and I were on our way. It was already dark and raining in torrents. Shortly before we reached our destination, we were stopped along Ngong Road by a single policeman wrapped in a rain cape. He asked the driver for his driver’s license, warning triangles, emer- gency aid kit and whatever else was needed for safe driving. After the driver was able to show the policeman everything, he came to my passenger side and knocked on the window. I lowered the window and greeted him. With a friendly smile he asked me for ‘Soda’. Since I thought I knew what ‘soda’ meant, I reached out to the back seat and handed him a can of Red Bull. With shock written all over his face, he took the can, greeted me, wished me a good trip and disappeared. In the meantime, Jacob had put everything back in the trunk. He took a seat at the wheel and asked me what the policeman wanted. I told him the story about the ‘soda’ and my driver started to laugh heartily. Surprised, I asked him what was so funny about it. Jacob explained to me that in Kenya, ‘soda’ is euphemism for a bribe! They would also ask for ‘chai or tea’ or ‘lunch’. So, the policeman wanted money from me, yet I just gave him a can of Red Bull, real soda. He seemed contented anyway, and I had my first ‘corruption experience’. This rather small incident coupled with widespread reports of grand corruption cases in Kenya, prompted me to hold the first anti-corruption conference of the Rule of Law Program in July 2014 in Entebbe, Uganda. Participants from various Sub Saharan African States described the corruption situation in their countries of origin, and lawyer, Patrick Loch Otieno (PLO) Lumumba, who is known far beyond Kenya’s borders, gave a moving and memorable speech against corruption. From that moment on, it was clear to me how widespread the cancer of corruption in Sub-Saharan Africa had become and what a destructive effect corruption has on the rule of law. It not only hinders their development, but it destroys all trust in them. When people feel and realize that it is not the rule of law that shapes the framework of their daily lives, but greed, dishonesty, disloyalty and financial power, they turn away from this element that constitutes democracy and leave state power to those who can buy it. As a result, the fight against corruption became an integral part of our work for democracy and the rule of law. Paul Hoffman, the author of this book, will discuss this in more detail. He, a Director of ‘Accountability Now’ in South Africa, knows how to inspire people to fight corruption and gives them hope. He not only knows ix x COUNTERING THE CORRUPT how to uncover cases of corruption but also knows how to present their effects. A special attribute of his is to develop ideas, both alone and with others, on how cor- ruption can be curbed. This book describes and explains ways and means of doing so. The KAS’ Rule of Law Program, Anglophone Sub Saharan Africa is very grateful to Paul Hoffman for his tireless fight against corruption and the fruitful cooper- ation of recent years. It has raised our awareness of this cancer that is destroying democracy and society and helped us to find allies in the fight against it.