Legislation offers an opportunity for a clampdown on graft in all sectors of society

With the Prevention of Corruption Bill, a powerful instrument could be added to our democracy's anti-corruption arsenal.

Corruption has many faces in SA. Perhaps this is why the public seldom bears witness to a united political voice willing to challenge it there is instead a preference to allow such initiatives to falter on party lines.

What we don't have are statistics of the extent of corruption in SA the practice of abusing entrusted power for private benefit does not look too kindly on notions of transparency. Even if we had statistics, it would be difficult to spot real trends as we emerge from the corrupt system of apartheid era "governance".

Slightly removed from the everyday political rough and tumble of the parliamentary system however, the nature of corrupt activity has revealed itself most recently in incidents ranging from the shocking sale of "minors" (children) for sex by corrupt officials in at least one prison, the cricketer who didn't go a full innings in exchange for a leather patchwork jacket, and political parties sharing in the ill-gotten gains of a German fugitive.

Depressing reading indeed, but particularly for those who wish to emulate this herd of miscreants, either as bribe-payers or as takers.

Positive pointers are emerging of a political elite no longer willing to temper "business at usual". Members of Parliament's multiparty justice portfolio committee met earlier this month to hear civil society submissions on the Prevention of Corruption Bill.

This piece of draft legislation which has thus far slid smoothly along its legislative path, assisted by the executive which has given it the necessary priority status could have far-reaching positive spin-offs for SA if rigorously implemented together with a few vital additions.

As a first step it goes beyond the 1992 Corruption Act in that it tabulates a wide-ranging set of corrupt offences and criminalises engagement with these. Furthermore, it also reinstates the common law crime of bribery, recognising that if one is serious about tackling corruption, it has both a supply and demand side that must be challenged. The penalties for both parties also fit the crime: a maximum sentence of 15 years in jail, or a fine, or both.

The bill, if enacted, will also make it an offence to bribe witnesses or obstruct investigation of an offence, including tampering with evidence, and places a duty on the public to report an offence. The latter is an important democratic obligation, provided that whistle blowers get protection, as envisaged in the Protected Disclosures Act.

The bill will also make it an offence to sell an item to the highest briber, as against the highest bidder, at an auction. It deals specifically with corruption in sport and will hopefully help boot out corrupt officials and players, a necessary step for a young public that could benefit from role models showing integrity.

Other key provisions of which reckless corporate profiteers should be wary are offences related to tenders and the bribery of foreign public officials abroad. Graft payment to officials is often considered "normal practice" particularly where this involves public sector officials in developing countries other than ours.

Similar legislation passed by the wealthy Organisation for Economic Co-operation and Development nations may see European Aeronautic and Space Company chief Michael Woerfel face prosecution in Germany, for the alleged payment which lured African National Congress chief whip Toni Yengeni to back procurement of aircraft as part of the arms deal.

The same will apply to business in SA, which is increasingly taking on an international character.

Exporting corrupt practice contradicts any notion of competitive behaviour and creates a climate where the stakes are in favour of the biggest bribe payers, a territory in which few South African businesses can "effectively compete".

However, the justice portfolio committee needs to consider some areas legislation has yet to address:

Accounting requirements are an imperative to stem corporate greed as exemplified in Enron, Worldcom and other scandals. To avoid replication in SA we need a review of external auditing procedures. Companies are to be prohibited from making off-the-book transactions or keeping off-the-books accounts and should disclose all material contingent liabilities. Accounting omissions, falsifications and fraud are to be adequately sanctioned.

Blacklisting firms guilty of corruption in public tender processes

Civil remedies for corruption allowing either the state or a member of the public to seek remedy through a civil court often a less complicated process which also enables the victims to seek compensation for damage where there is a causal link between an act of corruption and the damage it caused.

Immunity to be granted to a person otherwise implicated in corrupt activity when full disclosure accompanied by full disclosure prior to the commencement of investigations.

Private funding of political parties, estimated at least R250m in the 1999 election, is an area where the influence of wealthy private funders on democratically elected representatives is potentially huge. We are presented with an opportunity to regulate the sort of payments that result in influence being traded for filling party coffers.

A review mechanism accountable to Parliament is a final requirement to ensure that the Prevention of Corruption Bill is an instrument which is effectively enforced a necessary requirement to both combat and prevent corruption.

The National Anticorruption Forum, set up last year, with representation from civil society, business and the private sector, could be the vehicle to give feedback to Parliament annually on shortcomings in the implementation of the bill.

Van Vuuren is a Senior Researcher in anticorruption strategies at the Institute for Security Studies.

With acknowledgements to Hennie van Vuuren and Business Day.