Dear Corruption Watch,
What is the difference between criminal and non-criminal corruption? Isn’t all corrupt behaviour a criminal offence? Where are the lines drawn?
This question gets to the heart of what we mean when we talk about fighting corruption. The answer depends on how you define “corruption”.
First, corruption can be understood quite narrowly to refer to acts that are prohibited by the Prevention and Combating of Corrupt Activities Act 12 of 2004 (“the Corruption Act”). If we take that route, all corruption is by definition criminal. Still, the Corruption Act covers a wide range of activities. It criminalises a general offence of “corruption” which covers almost any corrupt relationship, including corruption between private parties. The Corruption Act also establishes specific crimes to prohibit corruption involving local and foreign public officials, legislative officials, judicial officers, prosecutors, employers, contracts, tenders, auctions, sporting events and gambling. Although it is not limitless, the Corruption Act prohibits most acts that we would ordinarily describe as “corrupt”.
Second, it is possible to talk about corruption in a general, non-legal sense. In ordinary usage, corruption does not rely on the technical definitions used in the Corruption Act; it covers the abuse of public resources and public power to enrich or give unfair advantage to individuals, their family or their friends. On this understanding, it doesn’t matter whether somebody is prosecuted for corruption. All that matters is whether the abused their position for private gain. This is how the term is often popularly used.
A third way of thinking about corruption is to look at the wide range of non-criminal penalties that can be imposed for corrupt behaviour. Legally, corruption could be punished by, for example: internal disciplinary proceedings; administrative fines on companies for corrupt or illegal behaviour; civil damages claims against corrupt officials; or a court order invalidating and administrative decision because it was taken corruptly. Politically, a person could suffer as a result of corrupt behaviour as a result of negative reports from the Public Protector or the Auditor General; or be disciplined by his or her political party; or by being publicly named. These sanctions can have real teeth.
Although it is important to vigorously prosecute those who act corruptly, we should not overlook the advantages of these non-criminal remedies. It will not always be possible to prove corruption in a criminal trial. As anyone who has watched a courtroom drama knows, in a criminal case the prosecution must prove the accused committed the crime “beyond a reasonable doubt”. That’s a very high standard and corrupt officials may escape punishment even though there is evidence that they are guilty.
The standard in civil and disciplinary cases is much lower – what lawyers call a “balance of probabilities” – it need only be proved that it is more likely than not that the person is corrupt. It is, in short, easier to fire someone for corruption than to prosecute them.
It’s important to understand that not every adverse report regarding the management of public resources is evidence of corruption. Public resources may be abused through negligence; regulations may be ignored as a result of negligence or even ignorance. That does not necessarily constitute corruption. However, the unfortunate truth is that when key public services are due and not delivered, or when an important tender regulation is ignored, this is often the red flag that signals underlying corruption. We rely on the general formulation of corruption as ‘abuse of public power for private gain’ when deciding whether to probe a report of corruption. Following a successful investigation, we use all sanctions at our disposal – criminal and non-criminal – to ensure accountability.