OPINION | Anti-corruption law and a human rights framework: Our Constitution provides a value system

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Corruption should not be seen as only being acts of abuse of power wherein people in authority exploit others argues the author. (Getty Images)
Corruption should not be seen as only being acts of abuse of power wherein people in authority exploit others argues the author. (Getty Images)

Cameron Lee Jacobs writes a response to an article by Corruption Watch's Sabeehah Motala and Melusi Ncala, in which they examined anti-corruption law and said it did not take into account the factor of imbalanced power dynamics.


The op-ed by Sabeehah Motala and Melusi Ncala on behalf of Corruption Watch (South Africa needs a human rights framework based on social values) captivated my attention because of its title, and I was looking forward to a thought-provoking analysis.

To my disappointment, the authors failed to grasp that the social relations of power will only be altered once the public administration largely internalises and lives the human rights culture espoused by the Constitution.

The authors believe that because persons in power cajole and coerce ordinary people into committing corrupt acts, the law should be mindful of such unequal relations, and therefore it should be more forgiving. As such, the authors conclude that anti-corruption law requires a rethinking of legislation through a human rights lens.

Unfortunately, the authors appear to be confused about the essence of human rights and that equality before the law, and the protection of all persons from discrimination, are fundamental elements of international human rights law and our own Constitution.

Solution subverts

Therefore, the authors' proposed solution subverts more than it embraces human rights and, in a peculiar fashion, supports a violation of a human right as a panacea to building a human rights framework.

On its logic, and as was the defence by some during the Life Esidimeni arbitration, the law should accept a junior official's reasoning that because of the unequal relations of power within the public service, such official should be treated more leniently. This is undoubtedly not the aspirational intent of the Constitution.

Section 1 of the Constitution outlines the foundational values on which South Africa should be built, and these values include human dignity, the achievement of equality and the advancement of human rights and freedoms, non-racialism and non-sexism, supremacy of the Constitution and the rule of law.

Relating these foundational values to the public administration means that every public official must be cognisant of its morality and humanity towards the citizens it serves. This must happen against the background of respecting, protecting, promoting and fulfilling the rights in the Bill of Rights as enshrined in section 7(2) of the Constitution.

READ | Modidima Mannya: The abusers of our constitutional framework are dragging us back to apartheid days

These values provide a foundation on which to build a values-driven public service within the South African society.

Section 195 of the Constitution provides for the values and principles governing public administration and represents a constitutional directive regarding good governance and public leadership in the public sector. When interpreting section 195, many public officials make the mistake of reading it in isolation from other provisions of the Constitution.

However, when section 195 is read purposefully and contextually, it becomes clear that these principles' genes are the fundamental values in the Constitution.

Obligation 

The synergy and nexus between the principles in section 195 and the Constitution's fundamental values are often overlooked. Still, crucially, they represent the building blocks of a capable developmental state. However, this will struggle to flourish if the foundational values underpinning it have not taken root.

The rights, values and principles expressly articulated in the Constitution reflect those of a contemporary constitutional state, and as the Constitutional Court held in the Carmichele judgment"Our Constitution is not merely a formal document regulating public power. It also embodies, like the German Constitution, an objective, normative value system."

As such, there is an obligation and a responsibility that senior administrators, in particular, adhere to a form of public leadership in which they are stewards of the constitutional rights, values and principles.

READ | Now is the time to celebrate our Constitutional democracy

It is agreed that legislation, such as the Protected Disclosures Act, needs an overhaul.

It is clear that there is an imbalance between an ethical and legal obligation to report acts of corruption and the lack of legal measures to ensure the safety of whistleblowers.

Corruption should not be seen as only acts of abuse of power wherein people in authority exploit others, as in the article's examples.

The public service recruits thousands of employees annually, where qualifications and driver's licenses are listed as compulsory requirements for advertised posts. However, criminal and disciplinary cases in the public service bear testimony to individuals having fraudulent documents, applying for, and being appointed in these posts.

Financial misconduct

Departments in the public service suffer losses of millions of rands annually due to cases of financial misconduct, where state vehicles are involved in accidents, medical negligence claims, where there has been a lack of a duty of care, and civil action for unlawful arrests, etc. This being stated, it begs the question as to whether the imbalance of power only lies within persons in authority or superior positions.

Legislation, such as the Prevention and Combating of Corrupt Activities Act (Precca), provides a multi-disciplinary approach ensuring that all persons, irrespective of rank, are equal before the law. The problem does not lie with Precca, but rather the absence of a shared vision and a value system that is premised on the Constitution.

When these do not take root, the results are weak governance and poor public leadership, resulting in the withering of moral and ethical standards in which accountability is compromised, and transparency is more of an afterthought than a principle to be pursued.

- Cameron Lee Jacobs is a director at the Public Service Commission and is a human rights activist. The article was written in his personal capacity.


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