The role of law teachers in combatting corruption and the misuse of public office: A commonwealth perspective
Keynote paper presented at the 2013 CLEA Conference in Durban
Director of the Legislative Drafting Centre, Institute for Advanced Legal Studies, London
There can be no doubt that corruption, in its many manifestations, is now universally acknowledged to be a virus that afflicts the global society. If there was any doubt about this, it is unlikely that the subject would attract as much attention as it does in the international community. Among many countries, whether rich or poor, developed or developing, it has become the practice for the executive authorities of the state to proclaim their dedication to fighting corruption as an article of faith. This is especially so among countries that claim to possess or aspire to be recognised as possessing good governance credentials. Are such proclamations alone enough or are they merely self-serving proclamations? Are individual countries and the international community doing enough to address the virus of corruption effectively? More specifically, does the academic lawyer owe a special duty to his or her charges and to society generally to lead the campaign against what is acknowledged essentially as a ‘social virus’?
In this lecture, I put forward the view that the law teacher does indeed have, and can play, a serious role in this regard. What is more, it is an especially important role. I argue that the position of a law teacher is essentially a public office and I therefore do not treat the two as separate and distinct one from the other. As a professional group, law teachers have benefited from the shared Commonwealth legal traditions that we all hold dearly and they owe a special duty to society to contribute both individually and collectively to the maintenance of those traditions.
The role of law teachers in combatting corruption and the misuse of public office: A commonwealth perspective.
[A minute’s silence was observed in memory of Mr Jeremy Pope OM (NZ), former Director of the Legal and Constitutional Affairs Division of the Commonwealth Secretariat, who passed away in August 2012. Mr Pope was a prime mover in the establishment of the CLEA].
In the communique issued at the end of their meeting held in Abuja, Nigeria in 2003 the Commonwealth Heads of Government included a statement in which they said:
“We recognise that corruption erodes economic development and corporate governance, welcome the successful conclusion of the United Nations Convention Against Corruption and urge the early signature, ratification and implementation of the Convention by member states. We pledge maximum co-operation and assistance amongst our governments to recover assets of illicit origin and repatriate them to their countries of origin. This will make sure resources are available for development purposes. To this end, we request the Secretary General to establish a Commonwealth working group to help advance effective action in this area.”
This statement, generally referred to in the annals of Commonwealth declarations as “The Aso Rock Commonwealth Declaration on Development and Democracy”, appeared appropriately under the general heading “Action against corruption and recovery of assets.”
It would be wrong, however, to conclude that 2003 was the first time that Commonwealth governments, either individually or collectively as an organisation, have taken notice of corruption as an issue of concern to them.
The enduring legal heritage and traditions which all Commonwealth countries share are generally acknowledged to have served the countries well over the years. These traditions owe their origins largely to the common law and operation of the equally enduring principle of the rule of law. On the other hand much, but by no means all, of the criminal law of most Commonwealth countries derive from statute which is territorial as distinct from the common law which is not. Nevertheless, it is no surprise that, given their close historical association, many Commonwealth countries have borrowed from each other in framing their criminal law. Their criminal laws each contain provisions that criminalise patterns of behaviour which may loosely be described as “fraudulent” behaviour but which share characteristics that do not much differ from corrupt behaviour.
Corruption is not a recent phenomenon. To illustrate this, during the height of British colonial power, a penal code containing provisions to address the problems of nepotism and the use of political office for personal enrichment and which was based on UK law, principally the Prevention of Corruption Acts 1889-1916, was introduced in each colonial territory. In Nigeria, for example, a Criminal Code was introduced in the then Protectorate of Northern Nigeria in 1904 by proclamation. That Code which contained provisions criminalising bribery was later extended in 1916 to the whole of Nigeria after the unification of the Northern and Southern Protectorates in 1914. Other anti-bribery/corruption Acts, more recently the Corrupt Practice and Other Related Offences Act 2000 (ICPC Act) have been enacted in Nigeria to address the scourge of bribery and corruption. In the UK, the Law Commission in its 1998 Consultation Report No. 248 entitled “Legislating the Criminal Code: Corruption”, the Law Commission set out its proposals for reforming the law relating to bribery and it is on this Report that the UK Bribery Act 2010 is based. In that report the Commission had proposed a definition of corruption in terms which did not distinguish it from bribery.
Fast forward to the late 20th century and to the present. It is not without significance in our recent political experience for a new government, as soon as it takes office to declare that it will fight corruption vigorously. For example, in March 2013, on being installed as President of China, Xi Jinping solemnly declared that he would “resolutely reject formalism, bureaucraticism, hedonism and extravagance, and resolutely fight against corruption.” For good measure his comrade Li Kequiang, the Premier, added reassuringly that “budgets for overseas trips, hotel stays, office buildings and official cars will be cut. The cuts will allow schemes aimed at helping the poor to continue despite (China’s) low growth.” These pledges are reported to have come apparently amid rising public anger over corruption and China’s yawning wealth gap.
It should not come as a surprise that corruption can be found even in the most unlikely and hallowed of places. As if not to miss out on the act, Pope Francis 1, soon after his inauguration, found it necessary to hint at the existence of corruption at the Vatican, the holiest of places. He is reported to have said that he will keep faith with the poor by adopting a straightforward and spontaneous style during his papacy and to forsake formalism.
Evidence has come to light, some of it probably anecdotal, to suggest that corruption is also alive and well in academia. There have been allegations of corruption in the hiring of staff and in the operation of the admissions policy, as well as nepotism and favouritism in other areas, including in the award of degrees.
The nature of corruption
One thing that it would probably be true to say is that there is no universally accepted definition of corruption. There are as many definitions of corruption as there are attempts to define it. However, all of the definitions seem to agree on a number of general statements that it would be difficult to contradict. They all agree that corruption has many manifestations. In each of these manifestations, it is always a two-way transaction with a supply and demand side. It is not peculiar to one particular type of government nor does it discriminate with regard to the level of economic or social development of the country concerned. Worryingly, globalisation seems to have made the menace more intractable.
A particular characteristic of corruption is that it has the ability to mutate. This makes it necessary to enlarge and revise previous definitions in order to keep pace with new situations that arise as the scope and range of its operation widens. Viewed in that light, at least for present purposes, I have chosen to define corruption simply as “the abuse of office for private gain”. For reasons that hopefully will become clear, this definition does not distinguish between public and private office, nor does it distinguish between corruption motivated by personal gain and corruption motivated by political gain. Similarly, it does not distinguish between individual corruption and institutional corruption. This is not to suggest that it serves no purpose to distinguish between the various manifestations of corruption. On the contrary it is necessary to distinguish and isolate them in order to begin to be able to deal with them effectively.
The laws of practically every country that prides itself in being civilised frowns on and, in many cases, criminalises much of what is recognised as corrupt. Yet there is undeniable evidence of perverse behaviour everywhere one cares to look. This is the case with arbitrary decision-making, a form of corruption usually involving the improper exercise of power for private gain. The question therefore is, why, even in our globalised and technologically advanced new world, are we still confronted by this legal conundrum that seems to defy every attempt to conquer it? Baroness Wooton of Abinger in “Crime and the Criminal Law”, the title of her Hamlyn Lecture in 1963, offered a view of the nature of crime in general by likening it to the disease of cancer the nature of which, she said, is not understood and the treatment of which can therefore only be palliative rather than curative. It would not be hyperbolic to describe corruption as a particularly virulent and aggressive form of cancer.
The good news, however, is that because corruption has now been acknowledged to be global in its scope and in its impact, correspondingly it is also now acknowledged that there cannot be any effective action against it without a clear sense of both national and international ownership of anti-corruption strategies. Therefore, a new culture which is intolerant of corruption must evolve both nationally and internationally. It is appropriately called “zero tolerance”
The manifestations of corruption
The true significance of corruption and its impact can, perhaps, best be understood when seen against the background of its commonest forms. These common forms manifest themselves, among others but principally, in any of the following forms:
(i) bribery – receiving value in exchange for exercising official discretion in favour of the payer of the value
(ii) embezzlement – pure and simple stealing, often of funds entrusted to the embezzler
(iii) speculation – using entrusted property, again often money to purchase goods or services for resale at a profit with a view to keeping the profit and returning the entrusted property or its value
(iv) nepotism and improper use of patronage – using official position or power to favour family and friends
Against this background, an approach that emphasises the dichotomy between the public and private aspects of corruption becomes difficult to justify or sustain. Most manifestations of corruption tend to target certain areas of business opportunity in search of a fertile ground in which to grow and flourish. Commonest among these areas are:
- procurement and tendering services
- revenue (and customs) collection
- government enterprise
- positions of conflict of interest
It should not require a highly speculative mind to conjecture that a private sector office holder is probably as likely to succumb to the temptation to embezzle or to accept a bribe as a public sector office holder.
The causes of and explanations for corruption
There is often a systemic pattern that underpins corrupt behaviour. While corruption clearly has many causes, it is strongly inter-related to poor governance. Poor governance is a direct result of the failure to observe the basic principles of the rule of law. Put simply the rule of law is government in accordance with the law. Where the law rules, decisions are made with due regard to the precepts of the law rather than arbitrarily, in accordance with the whims and caprices of the decision maker who is not accountable to anyone. Arbitrary decision making without accountability or transparency leads to poor governance. Poorly executed economic policy as a result of complete disregard of established procedures creates opportunities for corruption in public administration. This inevitably results in a decline in the probity of public servants, often made worse by inadequate legislative oversight by government. All of these factors contribute to an environment favourable to the growth of corruption. In extreme cases it could result in the worst case scenario of an entrenched culture of corruption. A culture of corruption fosters an attitude of mind that says “if everyone is doing it, why not me”? This leads almost invariably to the belief that nothing can be done about it and so a common reaction is, why try to stop it?
A systemic pattern of corruption erodes the authority and effectiveness of public institutions. It is a prime cause of weakness in governance and sustains rent-seeking vested interests, in the sense of promoting unethical and unfair practices which, in turn, act as a barrier to reform. These are sworn enemies of accountability and transparency.
The diversity in the nature of corruption, especially in societies where it is pervasive has enabled it to seriously distort government development programmes and undermine the effectiveness of public institutions and any attempts to address it. Because it can occur at all levels, from pay-offs at the highest levels, to petty corruption in the form of bribes to local official for the delivery of services, it is often able to evade regulatory procedures. The perpetrator can operate with impunity and is able to siphon off the dividend from corruption to foreign bank accounts although occasionally some of the the proceeds are recycled in the local economy. Viewed against this broad canvas, it is no surprise that corruption always involves social and economic costs. The most damaging consequence is that it not only erodes the credibility of public institutions and engenders public cynicism. Just as damaging, or even more so, is the destructive effect that it has on economic development.
Objective and subjective explanations for corruption
There are both subjective and objective explanations for corruption. As regards the subjective explanations, it could not be said that self- interest is the single most important cause of corruption. If that were the case, it is likely that the law which criminalises corruption would, alone, provide an effective remedy. Sadly, the law by itself alone has proved inadequate to deal effectively with it.
The unfortunate reality is that corruption nearly always operates in the dark, not unlike certain other kinds of crime such as drug trafficking. Such crimes are often regarded as victimless. The parties to such kinds of crime benefit from them but there are no perceived or specific victims willing to report the crime to the police. The Police therefore have to rely on informers to report the corrupt practice to them, sometimes in return for perverse incentives such as immunity from prosecution and large financial rewards as well as protection from retaliation by their partners in crime. The environment of corruption will often operate to frustrate effective implementation of anti-corruption laws, even sometimes where conviction for corruption attracts the death penalty.
As for the objective explanations, there is ample evidence to support the view that the ineffectiveness of the criminal justice system sometimes arises from the institutional limits of the system itself. As good as any example of such limits is the fact that, except in civil law jurisdictions, courts cannot initiate investigations themselves. The police are similarly handicapped as, often, they have limited skills and resources. It would therefore not be overstating the case to suggest that sometimes corruption stems not only from individuals but also from weak institutions. Sometimes, the law itself can be a cause. A law, rule or code, whether in the public or private sector, which gives exclusive or wide discretionary powers is an open invitation to act without fear of being called to account. The opportunity for corruption is increased when an official has unaccountable power. Unaccountable broad discretion undoubtedly creates the basis for arbitrary decision-making and action.
Civil society and the private sector
The idea of good governance does not, and should not, stop at the threshold of the public sector. It extends beyond government. Although an anti-corruption strategy usually focuses primarily on preventing the use of public office for private gain, the support of civil society more popularly known as non-governmental organisations (ngos) is vital for a meaningful pursuit of an anti-corruption agenda and for effectively addressing the dangers posed by unethical, even if not strictly illegal, practices. Corrupt behaviour (for example by a corporate buying agent) can be as destructive of the performance of businesses, or for that matter of ngos as it is of the performance of government per se. Civil Society forms part of the general society and contributes to the gross national product. In the context of the war against corruption, it sends the wrong message to society at large and it therefore makes little sense to continue to treat corrupt behaviour in the public and private sectors differently, even if one were to accept that the consequences of corruption are greater in the public sector than they are in the private sector.
The costs of corruption and poor governance
There can be little doubt that corruption and poor governance are major constraints on economic development. Among the most ruinous of their effects on society are:
- bribery increases the costs of government development programmes and generates projects of little or doubtful economic merit;
- resources are diverted from their intended purposes which distorts the formulation of public policy;
- using bribery to obtain public services undermines established allocation of priorities often benefiting the few at the expense of the many;
- perceptions of high levels of corruption and rent-seeking act as strong disincentive to genuine foreign investors, while attracting dubious enterprises;
- corruption undermines revenue collection capacity, contributing to fiscal weaknesses;
- bribery can subvert essential public regulatory systems;
- widespread corruption brings government into disrepute and encourages cynicism about politics and public policy.
I believe it would be true to say that all of these costs and their effects apply to the University and the Law School. The University, or the Law School, is the law teacher’s constituency, regardless of whether that constituency is classified as falling within the public sector or the private sector.
The Battle lines and responses
The significance of corruption and the realisation of its impact on the global society, albeit at a comparatively late stage, have coincided with globalisation driven mostly by the growth in the power of multi-nationals. Lately, the emergence and campaign activities of the global community, notably the UN; other international organisations – national and regional; not-for-profit national and international organisations, have contributed hugely in highlighting the dangers posed to good governance by corruption. Because corruption has become global in its scope and impact, it has come to be seen as posing an increasing threat not just to individual states but to the global society.
Enter the Commonwealth Secretariat established in 1964 by Commonwealth governments as the visible symbol of the Commonwealth of Nations to co-ordinate their agreed common interests.
In keeping with its mandate under the Agreed Memorandum on the Commonwealth Secretariat, the Commonwealth Secretariat has developed a catalytic method of work in addressing the needs of Commonwealth governments in many areas of activity. This has often meant working in areas where it feels that it has a comparative advantage compared to other organisations rather than spreading its limited resources too thinly by pursuing too ambitious programmes. Through mainly the Commonwealth Fund for Technical Co-operation (CFTC), its technical assistance arm and particularly the Legal, the Economic Affairs and the Governance and Institutional Development Divisions, the Commonwealth Secretariat has taken initiatives to assist Commonwealth governments in their efforts to fight corruption.
However, while acknowledging that corruption is a global problem, the Commonwealth Secretari9at has also recognised that action to combat it has to be taken at the national level.
During the early 1980’s the Legal Division of the Commonwealth Secretariat initiated schemes to assist Commonwealth governments in addressing specifically the growing twin menaces of drug trafficking and money laundering, two criminal activities known to be closely related to corruption in their destructive impact on society and arguably the two major concerns of the international community during most of the closing quarter of the 20th century. Specifically, the Legal Division pioneered the adoption by Commonwealth Law Ministers of a Commonwealth Scheme for mutual legal co-operation in Criminal Matters. On the basis of this Scheme, Commonwealth governments agreed to introduce national legislation to combat commercial crime and where appropriate to confiscate and repatriate to the countries of origin any assets in their jurisdiction found to have been derived from such crime.
For his part, pursuant to his general mandate under the Agreed Memorandum on the Commonwealth Secretariat the Commonwealth Secretary General, in 1998, established an Expert Group on good governance. The Working Group’s terms of reference included, among other things, making recommendations for the elimination of corruption in economic management. In carrying out their work, the Expert group reviewed the various existing and proposed conventions on corruption to which Commonwealth countries may become party and discussed the possible ways in which the Commonwealth could adopt its own instrument on the subject. The existing conventions that they reviewed were:
(i) the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions;
(ii) the Council of Europe Criminal Law Convention on Corruption; and
(iii) the Inter-American Convention against Corruption.
The Group presented its Report to the Commonwealth Finance Ministers Meeting held in the Cayman Islands in September 1999. In the Report they considered, among other things, the nature, causes, the cost of corruption and the possible responses that could be adopted to address it. Their recommendations included an enhanced role for the Commonwealth Secretariat in combating corruption and a proposal that it could promote, in consultation with other interested parties, an initiative to launch under the auspices of the United Nations a “global compact” against corruption.
It was to provide additional impetus to the “work in progress” already being done by the Commonwealth Secretariat that Commonwealth Heads of Government adopted the “Aso Rock Commonwealth Declaration on Development and Democracy which I have already referred to.
Following the mandate of the Aso Rock Declaration, the Commonwealth Secretary General has convened a series of Expert Group meetings between 2004 and 2005. The outcome of the meetings was a draft Commonwealth Legislative and Technical Guide which now forms part of the Commonwealth’s strategies against corruption.
The objective of the Commonwealth Guide is to assist Commonwealth states to ratify and implement the United Nations Convention Against Corruption (UNCAC) as urged by Commonwealth Heads of government in the Aso Rock Declaration of 2003.
The Commonwealth Guide provides a comprehensive commentary on the requirements of the UNCAC Articles including, among others, requirements concerning:
(i) (Establishment of) Preventive Anti-Corruption body/bodies
(ii) Public Office Requirements
(iii) Codes of conduct for Party Officials
(iv) Public Procurement and the Management of Public Finances
(v) Measures Relating to the Judiciary and Prosecution Service
(vi) Private Sector
(vii) Measures to Prevent Money Laundering
(viii) Bribery of National Public Officials
(ix) Freezing, Seizure and Confiscation
(x) Co-operation Between National Authorities and the Private Sector, and importantly
(xii) Trading in influence (which is a more subtle form of bribery involving the misuse of the influence of office)
(xiii) Illicit enrichment
(xiv) Bribery in the Private Sector
(xv) Embezzlement in the Private in the Private Sector
(xvi) Laundering of proceeds of crime
(xvii) Liability of legal persons (i.e. corporations)
Although there are a number of anti-corruption international Conventions now in force, including the African Union Convention in Preventing and Combating Corruption 2003/2006, and some of which predate the UN Convention, naturally because of its global application and its comprehensiveness, the UN Convention takes precedence over all the other conventions.
It could thus, perhaps justifiably be said that these developments constitute a major contribution by the Commonwealth towards the realisation of the global compact against corruption recommended as far back as 1999 by the Commonwealth Expert Group on good governance.
Last, but not least, no chronicling of the campaign against corruption would be complete without a mention of the contribution of civil society. It would be appropriate to make special mention of the work done and is still being done by Transparency International (TI). TI is justifiably widely credited with raising the profile of the war against corruption and placing it firmly on the international agenda as a global concern before the campaign against corruption became a business. Before TI, corruption was a taboo topic. There was no global convention aimed at curbing corruption. Many corporations regularly wrote off bribes paid by them as business expenses. TI is, of course, well known as the author and publisher of the “Corruption Perception Index” (CPI) first published in 1995.Since then, each year the CPI scores each country on how corrupt its public sector is perceived in terms of the cost of doing business in that country. That way the Index sends a powerful message on the level of corruption in each country. As a result, governments are being forced to take notice and to act. In 1999, TI started publishing the companion “Bribe Payers’ Index” – the supply side, which names and shames countries in the order in which they are shown to encourage corruption by paying bribes in order to win business. TI has more than 100 chapters spread around the globe. It also publishes a quarterly Newsletter. The Newsletter regularly publishes articles which illustrate the validity of the proposition that corruption knows no boundaries as to where or how it operates. One such article contained an extract from the Financial Times of London and provides some evidence of the fertility of the procurement business as a favourite hunting ground of corruption. It spoke about large-scale bribery in defence deals in the United States. The article was quoting from a report presented in evidence before a House Committee and which said:
“About half of the corruption complaints the US Commerce Department receives concern international defence procurement …..Though specific examples contained in the confidential annex have not been published, many cases are likely to concern signatories of last year’s anti-bribery convention of the OECD, given the dominance of industrialised countries in the international defence industry. The report said in the year to April, there were allegations of foreign bribery in 55 countries valued at US$37bn. These allegations were described by David Aaron, Under-Secretary of Commerce of the United States, as being just the tip of the iceberg.”
The role of the law teacher
One may ask, perhaps legitimately, what has all this got to do with the humble law teacher?
The answer is not difficult to discern. It is that if the “rule of law” means anything, it is that a democratic society must be subject to and be governed by a structure of law, with proper procedures and independent judges before who even a government must be answerable. The rule of law is the only restraint upon the tendency of power, especially absolute power, to corrupt and debase its holder. In other words, the rule of law is the anchor on which society is based and it is part of the responsibility of the law teacher to teach it and to uphold it.
The history of society is littered with proof that whenever individuals, political parties or countries become powerful there is a temptation to refuse to subordinate that power to wider and higher law. The concept of the rule of law started its life in England with chief Justice Lord Coke insisting that even the King, the sovereign lord, is subject to the law. Other countries which have adopted a common law system absorbed this concept. By the 20th century the concept that those who govern should not be outside the law’s disciplines had become accepted as the central pillar of a democracy.
It is clear, however, that the law cannot remain the same in a world that is in continuous flux. More than ever before, the law has become an instrument of change. It has to evolve to meet the challenges of new times. The question we must therefore ask is what are the underlying principles, the non-negotiables, that we, as law teachers, must always bear in mind in all that we do with the office that we hold.
The law is the business of the law teacher. Academic lawyers and professional lawyers in full or part-time law practice who teach undergraduate law students and graduates preparing for professional law practice have a special responsibility. Some graduates of universities and law schools eventually become judges. Some become captains of industry. In some countries, some universities and law schools that produce the lawyers and leaders in every field are funded almost entirely by the state. It would therefore not be too tenuous to suggest that a law teacher of such an institution would fall cleanly within the public sector. It is therefore my view that such an employee holds a public office. Be that as it may, I make the case that nothing should turn on whether the university is publicly or privately owned or funded. Nor, in my view, should anything turn on how the position of a law teacher is classified. More importantly, I make the case that a particularly heavy burden falls on the law teacher because of the law’s special nature as the glue that binds together the fabric of society. On that basis, a law teacher responsible for admissions who, for private gain, sells a place in the institution to a prospective student, often to the detriment of a better qualified applicant, or awards an undeserved class of degree betrays the trust to uphold the integrity and supremacy of the rule of law.
Times there may have been when it was considered unethical or even dangerous to be an informer but times have changed. A desperate situation has arisen that requires a desperate solution. Mere protestations to fight corruption or even conventions and national legislation may no longer be sufficient. They should not be allowed to become mere rhetoric. The law teacher who is aware of corruption in his or her department should not stand idly by and do nothing. Nor should he or she be heard to say “if everyone is doing it, why not me? There is nothing that can be done about it.” If a culture of corruption has taken root, it will not go away by ignoring it. For a law teacher to be heard to say that corruption is an acceptable way of doing business and a way of life that cannot be changed would be a betrayal of the ethics that underpins the rule of law. It would be a profoundly destructive and false acknowledgment of the lack of human capacity for change.
Activism and whistle-blowing have become not only acceptable but respectable as well. Judicial activism, by individual example, sometimes disapproved of by some as ill-judged has in some jurisdictions brought relief in circumstances where relief seemed impossible. So has whistle-blowing. Activism and whistle-blowing can both be deployed effectively to advance good governance which should never be negotiable or negotiated away. Just like the familiar battle slogan “say no to drugs”, the law teacher should be courageous and activist enough to “say no to corruption” and show leadership to his/her students – the law teachers, judges and business barons of the future, by not participating in activities that corrupt the law. That way the law teacher will be seen to be standing together with the judiciary as the true guardians of the law that holds together the fabric of society.