Band 4, Heft 3 - Legal Measures Against Corruption in Africa: Principles, Politics, Prospects

This article analyzes the record of the Economic and Financial Crimes Commission of Nigeria with respect to the prosecution of the corrupt practices in Nigeria of foreign actors (individuals and corporations). The article seeks to extract from the analyses possibilities and implications for effective anti-corruption efforts in other parts of Africa.

The ethical precision prescribed and codified by legal formulations on corruption conflicts with the on-ground difficulty of naming corruption in Africa. African state formations have been grappling with this tension since precolonial times, producing a crisis of naming and description that has mutated along with the nature and dynamics of the African state and its constitutive interests. This paper explores this tension from a transhistorical perspective. Using case studies from Nigeria and examples from Kenya and elsewhere, it examines the historical engagements of Africans, their institutions, and colonial power formations with ethics, morality, and corruption. The paper proceeds from this exploration to polemically intervene in some contemporary discourses and debates on corruption and the state in Africa. It uses the transhistorical analysis of the continuities and ruptures in corruption discourse and praxis to argue that the politics of naming is central to a comprehensive understanding of malfeasance and graft on the continent.

Judicialization of politics, the practice whereby judicial power is expanded well beyond adjudication in purely orthodox terms to embrace the core of politics and governmental policy is becoming a global phenomenon. In this paper, I argue that despite its growing popularity and acceptability, the process of political judicialization should be contextually detailed. Using Nigeria as an example, I assert that, although there might be justification for judicial intervention in the countries of Africa, the prevalence of corruption in the judiciaries makes such intervention a double-edged sword, deserving adroit handling. I also argue that the judicialization of politics on the continent is fuel for corruption. As such, removing political questions from the courts, difficult as this might be, could be an important anti-corruption strategy.

In some recent investment arbitration cases, tribunals have been presented with facts that suggest that foreign investors and public officials in the host state have engaged in corrupt practices. In its analysis of the extension of the anti-corruption campaign to investment arbitration, this article examines the legal measures adopted to combat corruption before investor-state arbitral tribunals in light of a study of World Duty Free Co. Ltd. v. The Republic of Kenya. An examination of the background to the World Duty Free v. Kenya dispute, the broader circumstances that surrounded the dispute, and Kenya’s political climate that was not within the tribunal’s purview, demonstrate that investment arbitration tribunals are not sufficiently equipped to exhaustively tackle corruption. Given the intricate political and public nature of corruption, responses to foreign investment-related corruption also have to be multi-faceted.

This article discusses Canada's unique approach to corruption in international business. Although Canada subscribes to the revulsion against corruption felt by its global partners, its anti-bribery laws aim to maintain a balance between the two extremes of putting Canadian businesses at a global disadvantage through impractical regulation and unrestricted freedom of these businesses to ignore Canada's constitutional values. The article concludes that, in spite of the uniqueness of this approach, there is need to recalibrate certain aspects of the regime in order to make it even more efficient.

This article examines Kenya's anti-corruption agenda over the past six decades, ending with Kenya's new Constitution of 2010. It concludes that the prospects of an effective anti-corruption regime cannot be predicted, in spite of recent obvious institutional improvements. Almost every turn made to combat corruption in Kenya has suffered setbacks because the judiciary was unsympathetic to the broader anti-corruption agenda or because Parliament or the executive branch found ways to cover up corrupt behavior. Further, many of the old corrupt guard remains in the government. These challenges remain even under the new constitution.

The resort to legal measures to combat corruption in Africa is almost universal. But the effectiveness of law in controlling criminal or anti-social behavior is not a given; rather it is contingent. This article argues that, given the peculiarities of the African society, legal measures that aim to control corruption, to become effective, must first become self-enforcing, based on democratic incentives for attitudinal change among the populace.

This article examines the potential impact of the UK Bribery Act 2010, with special reference to Africa. The central focus is on the bribery of foreign public officials and bribery within the corporate sector.

As a statute designed to deter improper inducements to foreign officials in connection with business activities, the enforcement of the Foreign Corrupt Practices Act (FCPA) has over time dramatically increased in its reach. This article examines the reach of the FCPA into Africa with special reference to corrupt practices in the oil industry. Owing to the combined enforcement activities of the US Department of Justice and the Securities and Exchange Commission, it concludes by arguing that the FCPA's impact and potency in the developing world will continue to grow.