Tuesday, June 14, 2011

Corruption and Constitutional Rights

While we are discussing corruption in India, it may be interesting to look at the recent decision of the Constitutional Court of South Africa in Glenister v President of the Republic of SA [2011] ZACC 6, drawing a duty to effectively tackle corruption from the duty to respect constitutional rights. Some excerpts follow:

[83] Corruption is a scourge that must be rooted out of our society. It has the potential to undermine the ability of the state to deliver on many of its obligations in the Bill of Rights, notably those relating to social and economic rights.

[84] As will be discussed later, this judgment recognises an obligation arising out of the Constitution for the government to establish effective mechanisms for battling corruption.
The establishment of an anti-corruption unit is one way of meeting the obligation to protect the rights in the Bill of Rights. The Constitution is not prescriptive, however, as to the specific mechanisms through which corruption must be rooted out, and does not explicitly require the establishment of an independent anti-corruption unit. The amicus and the applicant conceded this in the course of the hearing. Nevertheless, they contended that the obligation to establish an independent anti-corruption unit is implicit in the Constitution when viewed in the light of South Africa‘s international treaty obligations. Lest I be misunderstood, while I am prepared to hold that there is a constitutional obligation for the state to take effective measures to fight corruption, I am not prepared to narrowly construe the options available to the state in discharging that obligation.


After discussing South Africa's obligations to tackle corruption under international law, in particular the UN Convention Against Corruption, the Court goes on to say:

[105] As I understand it, the argument of the amicus that there is a constitutional obligation to establish an independent anti-corruption unit rooted in section 7(2) of the Constitution proceeded along the following lines. Section 7(2) of the Constitution creates an obligation on the state to ―respect, protect, promote and fulfil the rights in the Bill of Rights. This obligation goes beyond a mere negative obligation not to act in a manner that would infringe or restrict a right. Rather,it entails positive duties on the state to take deliberate, reasonable measures to give effect to all of the fundamental rights contained in the Bill of Rights. As corruption and organised crime have a deleterious impact on any number of these rights, the amicus contended that among the state‘s positive duties under section 7(2) is an obligation to prevent and combat these specific social ills. The obligations contained in the Convention, the amicus argued, give content to the state‘s duty to protect and fulfil its obligations in terms of section 7(2).

[106] I accept that corruption has a deleterious impact on a number of rights in the Bill of Rights and that the state has a positive duty under section 7(2) to prevent and combat corruption and organised crime. I also accept that, in giving content to the obligations of the state in section 7(2), a court must consider international law as an interpretive tool as required by section 39(1)(b).

[107] Under section 7(2), there are a number of ways in which the state can fulfil its obligations to protect the rights in the Bill of Rights. The Constitution leaves the choice of the means to the state. How this obligation is fulfilled and the rate at which it must be
fulfilled must necessarily depend upon the nature of the right involved, the availability of government resources and whether there are other provisions of the Constitution that spell out how the right in question must be protected or given effect.

[113] In the result, I conclude that there is no constitutional obligation to establish an independent anti-corruption unit as contended by the applicant and the amicus.

[116] Section 205(3) of the Constitution requires the establishment of a national police service in order to ―prevent, combat and investigate crime. Section 205(2) requires that the legislature ―establish the powers and functions of the police service in order to ―enable the police service to discharge its responsibilities effectively. I accept that for the police service to effectively discharge its responsibilities under the Constitution, it must not be subject to undue influence. That is the extent of the obligation imposed by the Constitution,and it is in this context that the obligation imposed by section 7(2) must be understood. The question for determination, therefore, is whether the impugned laws establish an anti-corruption unit that has the capacity to ―discharge its responsibilities effectively, as required by the Constitution.

[121] Ultimately therefore, the question is whether the anti-corruption agency enjoys sufficient structural and operational autonomy so as to shield it from undue political influence. I do not understand these instruments to require absolute or complete independence.

[177] The Constitution enshrines the rights of all people in South Africa. These rights are specifically enumerated in the Bill of Rights, subject to limitation. Section 7(2) casts an especial duty upon the state. It requires the state to respect, protect, promote and fulfil the rights in the Bill of Rights.It is incontestable that corruption undermines the rights in the Bill of Rights, and imperils democracy. To combat it requires an integrated and comprehensive response. The state‘s obligation to respect, protect, promote and fulfil the rights in the Bill of Rights thus inevitably,in the modern state,creates a duty to create efficient anti-corruption mechanisms.

1 comment:

jurist said...

Check out this commentary;

http://constitutionallyspeaking.co.za/glenister-a-monumental-judgment-in-defence-of-the-poor/