Preventing corruption and the misuse of funds: How can law teachers prevent assist in fighting the scourge of corruption in Commonwealth countries and other common law countries

Paper presented at the 2013 CLEA Conference in Durban

George Devenish
Senior Research Associate
University of KwaZulu Natal, South Africa

Introduction

I teach public law subjects, such as Constitutional law, Human Rights, Administrative law and Interpretation of Statutes. I use these subjects as a vehicle for the dissemination of values. These are the values found in the South African Constitution, such as human dignity, freedom, equality, non-sexism, non-racism and the rule of law. These are also the values common to the great philosophies and religions of the world, including Ubuntu, the philosophy of African people. A summary of which is set out below. Any discourse on corruption must attempt to assess the situation from an African perspective.

Modus operandi

On the issue of corruption, good governance and related issues. I write letters and op-eds for the press. Most of these are published. These I then furnish to students as part of their resource material for the subjects I teach referred to above. These letters and op-eds allow me to participate in a public discourse on corruption and related issues.

Substance of this paper

My paper will deal with the issues that form the substance of my discourse in the media, such as:

(A) Moral Regeneration;

(B) Cadre deployment;

( C) Corruption and mal-administration in the civil service.

(D) The Independence of the judiciary.

(E) The merit of a basic income grant.
(F) Accountability in the Electoral System.

(G) Political violence.

(H) Funding of political parties.

(I) Freedom of expression.

(G) Separation of Church and State. Some of my articles, letters and op-ed published in the press are attached to this paper.

All of these are relevant in relation to corruption.

Conclusion

Although I am critical of the government of the day, ie the ANC, I encourage loyalty to the SA state and the Constitution. South Africa is a great country and it has infinite potential. Many good things are happening in South Africa. It is necessary that these should be acknowledged and the ANC government given credit where credit is due. This attitude informs my discourse an values and corruption as well the concept of loyal opposition. Criticism must therefore be constructive.

Some of my letters, op-eds and articles are listed below:

(1) Cadres are Zuma’s main challenge- The Witness 28 December 2012.

(2) More leaders need to speak out against graft- Daily News- 3 January 2013.

(3) Civil Society Must Act Daily News- 14 December 2012.

(4) Moral regeneration is the only way to go. The Star- 14 December 2012.

(5) Gauteng premier shines light on stronger federal system- Sunday Independent 25 November 2012.

(6) Sisulu’s decision in conflict with constitution- Daily News 20 November 2012.

(7) Durban must fight against this gag- The Mercury 16 November 2012.

(8) Legal Bill opens way to abuse of power- Tribune 18 November 2012.

UBUNTU

Ubuntu actually means humanness, (see S v Makwanyana 1995 (6) BCLR 665 (CC) par 308). and it was acutely reflected in the preservation and stability of the whole community. Its operation within their codes of tradition and law was evident in times of war, when women and children were never killed (see Mostert Frontiers 197). Ubuntu therefore underlined the entire basis of their intricate code of social laws. The African scholar Sogo explained that ‘the primary object of Xhosa law …is to preserve tribal equilibrium. The law therefore guides the individual towards keeping the tribe from disintegration,…’(see Amakosa Customs). Constitutional Court judge, Yvonne Mokgoro, explains that ubuntu serves ‘as the basis for a morality of co-operation, compassion, community-spiritness and concern for the interests of the collective, for others and respect for the dignity of personhood; all the time emphasising the virtues of that dignity in social relationships and practices.’(S v Makwanyana par 308}.
In the social and political culture of the Xhosa people, the chief played a pivotal role. In principle everything, and everyone belonged to the chief (see Mostert Frontiers 199). On the face of it he possessed unlimited power, and was able to impose any tyranny he wished (see Mostert Frontiers 199) . However, in reality the situation was vastly different. The relationship, as explains Mostert, between the Xhosa chief and his subjects was finely balanced. So for instance the loyalty a Xhosa chief commanded depended upon the way in which he used his privileges and prerogatives. This meant in practice there was no unconditional acceptance of a tyrant (see Mostert Frontiers 199). In practice the chief was accountable, and subjected to checks and balances upon his power. This arose from the fact that the lack of any central apparatus through which absolute control could be exercised. An important safeguard against the abuse of power by the chief was effected by the influence of his group of councillors, known as the amapakati or the middle ones (see Mostert Frontiers 199). In effect they constituted his Parliament and Supreme Court (see Mostert Frontiers 199). He governed on their advice and was indeed not expected to go against it. Although the chief was the head of the council, whether this applied to a chiefdom or a nation, he dare not veto a decision of his court except at the peril of his reputation and authority see (Mostert Frontiers 199).
The Xhosa people had laws and courts of law. Furthermore, there was a powerful tradition for democratic debate and a gift of logic that impressed outsiders. Nevertheless, the Xhosa world was most certainly not perfect, like other societies, including European ones, was as susceptible to greed, malice, envy conspiracy and darkness as any.
African people had their own religion, their own ethical views, and their political systems and philosophy before the advent of European colonisation. There was a distinctive collective consciousness that manifested itself in certain behavioural patterns, and spiritual self-fulfilment. This as indicated above, is described as Ubuntu, and is an African view of life and world view. It can be described as African Humanism, involving, alms-giving, sympathy, care and sensitivity for the needs of others, respect, patience and kindness.
Ubuntu takes seriously the view that man is essentially a social being. African ubuntu thinkers formulate their views in terms of ‘a person is a person through other persons’. Ubuntu style management involves a departure from hierarchically structured management, as well as the introduction of cooperative and supportive form of management in which the collective solidarity of various groups employed is respected and enhanced’. Ubuntu is a social survival technique that developed from socio-economic and demographic circumstances in which African people had to cooperate to survive. In certain respects Ubuntu corresponds to social democracy, to which it has a ‘certain affinity in terms of industrious individual efforts which are lauded and rewarded as long as they are altruistic’. Ubuntu requires the right balance between individualism and collectivism and it is made possible by taking ‘people’s need for dignity, self-respect, and regard for others seriously’. It requires consensus management, in that its emphasis is not on differences, but on accommodating differences. It should be noted that the interim Constitution stated the need for ubuntu, but unfortunately this authentic African concept does not feature in the current Constitution. We have sacrificed the textual foundation and encouragement for the furtherance of a truly African jurisprudence. Nevertheless the idea has a universal significance lives on and has most certainly not been extinguished.

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