By Alex T Magaisa
LAST week we emphasised the importance of investigating the beneficial ownership and control of corporate vehicles and individuals that may be used to disguise the identity of persons invol
ved in corrupt transactions.
However, it is very easy to draft beautiful laws and create an impression of serious intent to fight corruption. The implementation of those laws requires a lot more effort and political will. It is necessary to set up a suitable platform upon which the laws are executed.
The institutional capacity must be enhanced by improving the human and financial resources necessary for policing corruption while the application of the laws must conform to recognised standards of justice and fairness.
First, we have to recognise that we already have institutional structures that have historically been used in the fight against crime. The national police force, for example, has special departments such as the fraud squad that are expected to have certain expertise in the policing of economic crime.
The Prevention of Corruption Act has occasionally been used as the legislative basis for the prosecution of economic crimes related to corruption. It is against this background that we must question the introduction of the Anti-Corruption Commission (the commission).
What will the commission do that the police and related authorities responsible for policing corruption have failed to do? What is it that distinguishes the commission? These, I think, are some of the main challenges that the commission will face when it begins its operations – it must distinguish itself from the current and previous practice.
However, in order to do that it may be instructive to explore the reasons for the failure to successfully fight corruption under the current legislative and operational regime. Perhaps the cancer of corruption has spread so wide and deep that it has even affected the policing authorities themselves as currently constituted. In this case, one could say the policing authorities are institutionally corrupt – which probably explains the strategic move to place the primary duty to fight corruption in a separate body such as the commission.
In that case, the state must also be careful not to appoint persons whose background lies in institutionally corrupt organisations. What good is a body which is filled with persons who themselves are predisposed to engage in corrupt tendencies?
The problem in our nation is that certain conduct and activities have become part of the normal course of life. To borrow phraseology often used by the late Professor Masipula Sithole – the abnormal have become normalised.
The big challenge is to deconstruct the behaviour, conduct and practices that now seem normal whereas in fact they constitute the core of corrupt practice. This is a challenge for both the government and the public at large.
In my view, there are key shortcomings that have led to the presently poor state of affairs in the policing of corrupt conduct. The relevant policing and prosecuting authorities do not have the necessary human resources and technical expertise to deal with economic crime. This is probably no fault of their own – there is simply inadequate investment in the proper training of the relevant personnel in the police force.
Economic crime has become highly sophisticated particularly in light of the advances in information and telecommunication technologies. Even the most advanced policing and prosecuting authorities struggle with hard cases of economic crime.
Economic crime cases tend to consume more time and can go for years before reaching conclusion and even then the result is often an acquittal. That is why in advanced legal systems such as the UK there are current moves to change the approach to economic crime.
The public is often left in confusion when they hear of a high-profile arrest but the matter fizzles out in subsequent months. Few economic crime prosecutions yield results in most places, let alone in jurisdictions that have weak investigative systems.
Most cases fail to proceed because of lack of evidence. It is not that there is no evidence – it is simply that the investigating authorities do not have the resources and expertise to conduct a thorough investigation in order to unearth and decipher the necessary elements.
This demonstrates that it is important to empower the authorities responsible for policing and prosecuting economic crime with the necessary technical resources, expertise and financial backing. This calls for a widening of the pool from which personnel are recruited. The skilled require good remuneration.
Perhaps the creation of a specialised unit of the police force, with adequate resources and powers could be part of the solution – something akin to the Scorpions in South Africa, the USA’s FBI or the newly created SOCA in the UK to aid the commission in the investigation and prosecution of economic crime.
*Dr Alex T Magaisa specialises in corporate and financial services law. He can be contacted at firstname.lastname@example.org or email@example.com