New anti-corruption tools crucial
11 July 2017 | Crime
Alternatively, enforcing strict compliance with asset declarations and financial disclosure as well as conducting lifestyle audits of all public officials, including senior ones, could help stamp out corruption, a public policy watchdog recommends.
“Corruption is on the rise in Namibia, and authorities are not able to effectively halt the rising tide,” an Institute of Public Policy Research (IPPR) briefing paper, authored by Max Weylandt, states.
One of the issues at hand, and the basis for the need for an illicit enrichment law to help fight widespread and rising graft, is that prosecutors struggle to get convictions “for corrupt officials as criminals become increasingly sophisticated. Crimes of corruption are by their nature hard to prove in the first place, given their inherent secrecy.”
Corruption has been labelled as a “uniquely difficult crime to prove and prosecute” and these laws “make life easier for prosecutors targeting this visible manifestation in itself.”
For investigators and prosecutors, the laws allow them to “simply show that the official's wealth exceeds what they should reasonably have from their legitimate income,” rather than having to prove the underlying crime.
Illicit enrichment laws have been described as a “catch-all” for corrupt offences and if effective, “removing much of the incentive for corruption and punishing those who try their luck anyway.”
In response many countries, including Botswana and Zambia, have implemented versions of the illicit enrichment laws, a strategy that has been recommended by the United Nations Convention Against Corruption as well as the African Union Convention on Preventing and Combating Corruption.
But the paper warns that due to a number of factors, including operational, ethical and more, “illicit enrichment laws are not the easy solution they may at first appear to be”.
Debates around the compatibility of illicit enrichment tools with human rights laws have not stopped many regions in the world to enact illicit enrichment provisions, with the notable exceptions of North America and most of Western Europe.
“It may be tempting, given the frustrating difficulty of getting convictions in corruption cases, to do everything to strengthen the hand of the prosecution. But the concerns around presumption of innocence, the right to silence and other aspects of the law are not trivial, and would have to be carefully considered,” Weylandt writes.
The law could be hampered by many factors, including a lack of specialised skills, lack of global cooperation and cases could get bogged down in several years of court challenges.
The IPPR advises that the enacting of such a law should “proceed with caution” and draft legislation should emphasise basic rights.
Other options already out there
If the law is not enacted, the IPPR suggests Namibia should “seriously commit to fixing and expanding its financial disclosure systems” as an alternative method of detecting possible corruption.
Information on the interest of officials' could be used as a baseline for investigators and provide leads, the paper suggests.
Moreover, asset declarations need to “be expanded to uniformly cover all senior officials. Unlike now, their mandatory nature needs to be enforced across the board, and non-compliance punished.”
Asset declarations should be audited to ensure their truthfulness and to help provide potential leads.
And, in line with a proposal made by President Hage Geingob in 2016 during an interview, the IPPR says lifestyle audits should be common practice, for all officials, including high-ranking officials.
“Privacy concerns will have to be considered, but public officials implicitly agree to subject themselves to a certain level of scrutiny when entering public service.”
Lifestyle audits are a method of detecting illicit enrichment that “determines whether the standard of living of a public official is clearly not appropriate for their level of earnings.”
Lifestyle auditors examine not just assets and spending, but also activities of public officials.
“The concept of lifestyle audits would likely make sense to many Namibians. In many towns, rumours abound around certain officials and how they can possibly afford their fancy cards, big houses and extravagant holidays,” the IPPR paper notes.