Principal and Vice Chancellor of University of South Africa (UNISA), Professor Barney Pityana
Executive Dean of the UNISA College of Law, Professor Nqosa Mahao
Former Chief Justice of South Africa, Justice Arthur Chaskalson
The Public Protector of South Africa, Advocate Thuli Madonsela
The acting national Director of Public Prosecutions, Advocate Mokotedi Mpshe, SC, and other members of the National Prosecuting Authority here present
Former national Director of Public Prosecutions, Advocate Vusi Pikoli,
Mr Johnathan Lucas, United Nations Office on Drugs and Crime (UNODC) regional office for Southern Africa
Professors and lecturers
Distinguished guests
Ladies and gentlemen
Thank you very much for affording me the opportunity to deliver the opening address at this important symposium. It is a great pleasure and privilege to be with you today. In greeting you I also wish to convey the greetings and support of the Minister of Justice and Constitutional Development, Mr Jeff Radebe. I wish to extend a special welcome word of welcome to those who have travelled from afar to be with us today, in particular, to our panellists: Mr James Kellock, former Deputy Director of the serious fraud office in the United Kingdom, Prof Robin Palmer of the law faculty of the University of KwaZulu-Natal, Mr Charles Yeats of the Four Pillars Network.
It is a particular pleasure to share a platform with Mr Charles Yeats, a conscientious objector who went to prison for refusing to serve in the South African National Defence Force (SADNF) under apartheid. The End Conscription Campaign (ECC) recently celebrated its formation 25 years ago. Some of us objected to serving in the SANDF under apartheid. Fortunately democracy arrived before prison for us and we did not have to endure what Charles Yeats and many other brave conscientious objectors had to endure in prison.
I wish to thank the University of South Africa College of Law and Four Pillars Network for hosting and organising this one day symposium for Judges on Judicial Power and Grand Corruption. I also wish to thank the Four Pillars Network for their consistent support for efforts to address the challenges of asset recovery from an African perspective.
We look forward to the international conference planned by the Four Pillars Network to provide judges, international law experts and senior members of law enforcement agencies with the opportunity to discuss the proper criminalisation of grand corruption, to identify the origins of the proceeds of grand corruption and to provide for the effective repatriation of stolen assets. Present here today are, among others, members of the judiciary, the prosecuting authority, criminal law experts, and members of the legal fraternity. It is important to share thoughts and viewpoints on the proposed conference and to assist in identifying appropriate topics.
In his message to the ninth International Anti-Corruption conference in Durban during 1999, the General-Secretary of the United Nations, Dr Kofi Annan, made the following statement, and I quote: “Issues such as environment, crime, terrorism, and corruption carry no passports. They are beyond the power of any single nation to address on its own. Progress in the years ahead will require unprecedented levels of cooperation and collaboration among peoples of different cultures”.
Furthermore, when addressing business executives on the Global Compact in Paris on 27 January 2004, Dr Kofi Annan emphasised that to be successful in the fight against corruption, “we must find ways to scale up good practices” and “we need to include explicit actions towards that end”. Closer to home, in his state of the nation address 3 June 2009 President Jacob Zuma emphasised that South Africa is committed to fighting corruption. He stated that: “Working together with all South Africans, we will intensify the fight against crime and corruption. We will build cohesive, caring and sustainable communities.”
Furthermore, our Minister of Finance, Mr Pravin Gordhan, said during his speech in the budget vote for the National Treasury on 1 July 2009, “Finding savings is not only about reducing budgets, it is also about combating corruption, wastage and leakage in government. In particular, corruption in our procurement system is of grave concern to us. Work is currently underway to establish a Supply Chain Management Compliance Monitoring unit in the National Treasury. We call on all honest public servants and the South African public to join us in identifying and rooting out corruption.”
He returned to this theme more recently during the mid-term budget policy statement for 2009 delivered on 27 October 2009, when he said, “We are fighting a new struggle now, as Comrade Chris Hani once said, there is “another struggle to make freedom and democracy worthwhile to ordinary South Africans We must build a different culture in this country and that culture should be one of service to people”.
“We are particularly concerned about the number of government tenders, in all three spheres of government that are tainted by corruption. Corrupt officials stand on one side, while on the other stand corrupt business people. A culture of gifts, wining and dining, and all manner of enticement has become pervasive. We must act decisively against such a tendency, and we must do so together.”
The above statements capture the purpose of this symposium. These symposia and meetings are of paramount importance in order to find common ground amongst countries to best deal with the fight against organised crime and, in particular, corruption.
Recent surveys have highlighted, among others, the following effects of corruption:
* Corruption undermines economic growth and makes it difficult to attain satisfactory levels of sustainable development. Accordingly, corruption hurts the poor disproportionately by diverting funds intended for development
* Corruption jeopardises the rule of law
* Corruption threatens democracy, because it erodes the capacity of the state to ensure sustainable development, thus denying people the enjoyment of their full citizenship rights and, consequently, exacerbating violent conflicts
* Corruption has a debilitating impact on institutions as well as ethical values and on criminal justice systems.
A further devastating effect of corruption is the loss of assets and the impact thereof on economic growth and sustainable development. According to the World Bank, the cross-border flow of proceeds from criminal activity like grand corruption and tax evasion is estimated between United States $11,6 trillion per year. Half of this amount is stolen from developing and transitional economies. The Commission for Africa cites a European Commission report estimating that “stolen African assets equivalent to more than half of the continent's external debt are held in foreign banks accounts”.
In terms of article 51 of the United Nations Convention Against Corruption the return of assets is a fundamental principle of the convention and state parties are required to afford one another the widest measure of cooperation and assistance in this regard. Therefore, asset recovery has been firmly established and the return of stolen funds to their country of origin is emphasised as an international priority.
On 17 September 2007, the World Bank and the United Nations Office on Drugs and Crime (UNODC) launched an initiative called the Stolen Asset Recovery (STAR) initiative. Through technical and legal assistance, high level political advocacy and the development of tools for public officials, the STAR initiative aims to return stolen assets so as to release funds for social programmes and infrastructure. The focus is on recovering assets that are owed to developing countries. One of the primary aims of STAR is to send a strong signal that money obtained through corruption will not be safe anywhere.
However, one cannot expect from the World Bank or the UNODC to get directly involved in the investigation process, the tracing of assets, the prosecution of grand corruption or the repatriation of stolen assets. These activities, which present the greatest challenges in recovering these stolen assets, are to be dealt with by the countries concerned. It is for this reason that the efforts of the Four Pillars Network are commendable and need our full support.
According to George Moody-Stuart any discussion of corruption must start with a definition. He refers to the general definition of corruption, but emphasises that it is necessary to distinguish between “grand corruption”, which involves senior officials, ministers, and heads of state, and “petty corruption”, which entails immigration officials, customs clerks, policemen, and the like. Moody-Stuart continues by making the following very important observation:
“This is not simply a difference of scale. Petty corruption is usually about getting routine procedures followed more quickly or not followed at all. Grand corruption involves influencing decision makers. To focus on grand corruption is not in any way to condone petty corruption, which can seriously damage the quality of life of the ordinary citizen, particularly that of the most vulnerable members of society. But grand corruption can destroy nations: where it is rampant, there is no hope of controlling petty corruption.”
Therefore, although it is important to tackle the challenges of grand corruption and asset recovery as a Continent, it is also important that each African country should reaffirm its commitment to fight corruption on a national as well as international level, notwithstanding whether it is petty corruption or grand corruption. In this regard it is important for each African country to ratify the legal instruments relating to the fight against corruption, such as the United Nations Convention against Corruption and the African Union convention on Preventing and Combating Corruption. Although most of the African Countries have ratified the United Nations convention, according to the latest list, only 31 countries out of 53 have ratified the African Union convention. This represents about 59 percent of the African countries.
We need to keep encouraging our fellow member countries to show full commitment and to tackle this phenomenon of corruption on the African continent as a whole and not in a piecemeal fashion. In exploring the various topics, and in particular the proper criminalisation of grand corruption, one needs to seriously consider criminalising cross-border corruption as contained in the OECD convention on Combating Bribery of Foreign Public Officials in International Business Transactions. The OECD working group on bribery monitors and evaluates countries’ efforts to implement the convention through a rigorous peer review mechanism.
Although the United Nations convention contains a similar prohibition, the opinion is held that the implementation of these provisions lacks real progress and the symposium should consider ways to effect such criminalisation in a progressive manner.
Lastly, I have a special request of make of this knowledgeable gathering.
Those of you visiting South Africa might not be aware of the tradition of “padkos”. Literally translated “padkos” means “road-food”, the food that travellers take along on a journey. Very often this food is given to travellers by hosts with whom they have stayed as guests. I might add that it is, in fact, considered very rude, almost unthinkably so, to allow a guest to take to the road without “padkos”.
I am very confident that we will be giving each other generous baskets of intellectual “padkos” for our respective journeys in the fight against crime and corruption. I hope that you will pardon me if break with the politeness expected of a guest and be so bold as to specify some of the items that I would appreciate seeing in my basket of intellectual “padkos”:
I would appreciate your views on the best way to go about ensuring harmonisation of the legislative framework for asset forfeiture in Southern Africa and, in fact the continent as a whole. I would also appreciate your views on complex issue of the best institutional arrangement for combating corruption, in particular the merits and demerits of a specialised anti-corruption agency. Another item that one might want to see in the basket is the establishment of an Anti-Corruption Good Practice guide. I am confident that this symposium will give each one us individually and collectively something to take along and that none of us will be found sitting hungry by the roadside.
In conclusion I wish again to thank the College of Law University of South Africa and the Four Pillars Network who have assisted in organising and hosting this symposium.
I thank you.
Issued by: Department of Justice and Constitutional Development
18 November 2009
Source: Department of Justice and Constitutional Development (http://www.justice.gov.za/)
