Sunday, October 23, 2022

Elections in Zambia: A Question of People, Law and Governance

From the Archives.

This article was the first paper in the Afronet Position Paper Series commencing in the year 2002. The article addresses itself to electoral issues preceding the 2001 Elections in Zambia, with particular emphasis on people's right to make political choices, law and governance.

Also cited as Mbinji, M & Kanyengo. C, (2002), Elections in Zambia: A question of people, law and governance, in Southern Africa Human Rights Observer Vol 1

1.0   Introduction

The tenet of democratic governance is that people make political choices, embodied in constitutions and laws, based on their experiences and aspirations. These choices mould the rules of governance and empower chosen individual political leaders to manage the common affairs through instruments and institutions of government.

The right to make political choices is facilitated through a continual electoral process that after a legally defined period temporarily culminates in an election. The underlying assumption is that by the temporal culmination of the electoral process, people and their earlier political choices will have resolved likely conflicts or issues arising so as to allow acceptable continuity of governance.  It should also, thence follow that if at election conflicts arise, then institution of individuals from the exercise of making political choices should be stayed until such conflicts have been resolved.  The inalienable premise of this viewpoint being that questions of political choices are issues of legitimacy and not necessary the law. In any case laws derive their legitimacy from people and not the reverse.

Further, the sustenance of democratic governance is founded on the right to make political choices and implement such choices without interference (direct or perceived) from individuals tasked with the management of government. In most of Africa, however, since the right to make political choices is "a spaced periodic" exercise, there is always the likelihood of the rules of governance and instruments of government being arbitrary changed in favour of powerful and protected interests of a few or the political party in power. This is easily attained because most of Africa's new democracies are characterised by highly centralised systems of governance; excessive state control coupled with limited capacity to govern; erosion of the boundaries between the state and civil society; weak institutions of both state and civil society; limited participation in governance by the general citizenry[1], and; preferential access to power and resources often determined by partisan interests.

Zambia towards December 2001 elections had reached the point where the interests of the powerful and protection of interests of the political party in power was overtly the sole business of government.  The rules of governance and instruments of government had slowly being changed to the detriment of the majority of the people. 

Governance and instruments of government were monopolised by the state, especially the executive. A people that once had used the 1991 elections as an opportunity for change now found themselves on the other side of governance. They became spectators and beggars.  The exercise of their right to make and implement political choices waned into an abyss of despair.

2.0   Socio-Political Context

Zambia's 1991 elections have been argued to be an opportunity for change. Zambians now constrained by social and economic hardships resolved to institute mechanisms of change leading to a more competitive and equitable form of governance.  The governing instrument – constitution – was amended to allow for political competition. The re-introduction of multi-party political participation was adopted as a means of broadening political choices that individuals had to make.  Critical to this process is the fact that re-introduction of plural politics was not in its totality a dictate of the people of Zambia. Donor and international influence also played a significant role, as by then, international aid was being tied to internationally acceptable modes of governance.  It must be acknowledged that people in 1991 exercised their right to political choices more as an avenue of actualising a desire for change in their social and economic livelihoods, than change in the mode of governance. Adoption of a plural political mode of governance was merely instituted as a means that allowed for broader political choices with respect to intending leadership participants and intended programs that would meet the people's aspirations.

In the period 1991 to 2001, Zambia's emergent democracy began to ail, as the individuals tasked with the management of government, began to exercise their duties in a manner at variance with the people's expectations. This is a period in which the Law, a codification of acceptable human conduct, slowly became an instrument of oppression.  Governmental power and Law was used to enhance partisan interests.

Salient governance behaviours that negate democratic practices in this period are an aggressive exercise of power; disregard of the legal controls on the exercise of power, and; lack of redress of legitimate political concerns by the citizenry and political players. In addition, public information media and public institutions became the sole preserve of the political party in government.

A fundamental negation of popular participation in democratic governance was the ruling political party’s response to the 1993 Mwanakatwe Constitutional review process.[2]

The dialectics for constitutional review was the recognition that the Constitution of Zambia Act 1973 amendment leading to the Act of 1991, although paving the way for plural politics, did not adequately address issues of good governance. The Constitution of Zambia Act, 1991 was, in effect, a reconciliatory instrument of governance consented to after Inter-political party dialogue between the UNIP[3] government and opposition parties in July 1991.

To enhance and entrench democratic governance practices it was felt there was a need to review this reconciliatory instrument. Practices intended for consideration included devolution of power, extension of the Bill of Rights (both in scope and form) and limiting the powers of the office of the President.

To this effect the Mwanakatwe Constitution Review Commission was tasked with recommending a Constitution founded on entrenchment of human rights; democratic principles; of free and fair elections; transparency; accountability; the rule of law, and; effective public participation in government and politics. The underlying principle of this process was also to provide safeguards against the re-emergence of a command centred form of government.

The Commission diligently carried out its task, but contrary to the expected adherence to the justification for constitutional review, the political party[4] in government's reaction to the recommendations can at best be described as classical but expected.

Government consulted ex post facto, and instead invoked Article 79 of the Constitution of Zambia Act, which empowered Parliament (where the ruling political party had an overwhelming majority) to amend the Constitution.

Examples of recommendations that where intended to enhance and entrench democratic practice in Zambia, that the political party in government rejected are[5]:

§  On separation of the State and Religion, the Commission recommended that Zambia should not adopt a state religion. Now the preamble in the Constitution of Zambia states that "Zambia is a Christian state tolerant of other religions"

§  The extension of Human Rights to include women and children's rights; the right to peaceful assembly without prior authority; the right to petition government and get a response thereto; the right to freedom of information; right of journalist not to be compelled to disclose their sources; suspects must be brought before a court of law within 48 hours of arrest; all media financed by or under the control of government would be organised and regulated in a manner which would ensure impartiality and the expression of diversity of opinions; and every person should have the right to access all information held by the State or any of its organs at any level of government in so far as such information is required for the exercise or protection of any of his or her constitutional rights.  Article 79 of the Constitution of Zambia Act 1991 was invoked in defence of government's ill-informed and deliberate strategy to entrench the political party's intent on power and protection of self-interests.

§  That Parliament be empowered to scrutinise Executive action and the work of quasi-government agencies so as to ensure accountability, transparency and due process of law.

§  That the Constitution be adopted by Constituent Assembly and Referendum.

Further, in its rushed negation of fundamental tenets that foster democratic governance, the political party in government decided to constrain individual's right to participate in the political landscape, to the extent of contesting the presidency. The citizenry of once parents was now a contention. Both parents had to be born in Zambia. And undoubtedly, the former president, Kenneth Kaunda (who was due to contest the 1996 Elections) found himself on the other end of the supreme Law of his own country.

Consequently, civil and political dissent to the Government's intentions emerged. There was a general call for the political party in power to uphold the underlying democratic principles of constitution review through institution of consensus building mechanisms, as opposed to attempts to rationalise ex post facto consultation.

In the context, of the right to make political choices, there was a well-founded fear that accepting the Constitution as reviewed and adopted will seriously undermine the integrity of the electoral process.  It was generally felt that for Zambia to enhance its democratic practices through individual's exercise of the right to make political choices there was need for citizenry empowerment in constitution making and adoption, and need for election ethics and electoral practice consensus.

It was also argued that parliamentary superiority should not be the basis for governance. In any case in emergent democracies like Zambia where such majority was not necessarily obtained because individuals had a choice, but because of the dictates of socio-economic "amnesia", the legitimacy of parliamentary superiority is an affront to democratic governance.

With the 1996 Elections nearing, it was inevitable that the political and electoral behaviours were one of a socio-political environment of discontent and apathy as the political party in government asserted political hegemony and ingenuity.

Civil and political concerns were spurned, and the Constitution of Zambia (Amendment) Bill was passed by Parliament and assented by the State President. Members of parliament unilaterally disenfranchised the people from participating in formulating the country's supreme law.

The demands left in a political abyss were that:

§  the Constitution of Zambia (Amendment) Bill 1996 be withdrawn from Parliamentary consideration to allow for meaningful dialogue;

§  the 1996 Presidential and Parliamentary elections be held under the Constitution of Zambia Act 1991; the Public Order (Amendment) Act, 1996 be repelled to allow for an environment of free and fair election;

§  the electoral exercise of voter registration administered by a foreign agency[6] subordinates the independence of the country's Elections Commission and undermines elections integrity;

§  voter registration exercise undertaken by the foreign agency is unacceptable and unconstitutional and that the 1996 elections should not take place on the basis of the exercise, and;

§  there be re-registration of voters and establishment of an environment that can facilitate free and fair elections under an independent electoral commission,

A discerning feature to note in this period in Zambia's conflicting democratic governance practices, is that despite the rationalised call that continuation of Donor aid to dictatorial regimes is a violation of international and universally reorganised human rights. Donors still continued to support the political party in government.  There were exceptions, but not strong enough. An example is the June 1, 1996, statement by the USA government which noted that it was reviewing bilateral and multilateral relationship and assistant programs to the country in view of recent governance trends. The government was urged to reverse its decision on the Constitutional amendments. The Government did not rescind its decision. Was the USA government playing to the political gallery?

A question to be asked is at what point of the state to a process of undermining democratic governance do donors get concerned? And are donors really concerned about democratic governance or merely economic governance that enhances their country's business corporate interests? How then can sustained development be attained in emergent democracies if Donors seem not to have uniform policies towards countries deemed to be undermining democratic governance? Donors should be resolute and be seen to adhere to uniform and acceptable responses to issues of democratic governance.

3.0 The Behaviour of the Political Party in Government

In defence of its undemocratic practices, the political party in government resorted to misinformation campaigns through the public media and indeed recourse to the law to detain and imprison dissenting individuals.

Popular dissent by individuals and eminent persons like the former president (Dr. Kaunda) were curtailed when the state instituted unfounded cases of treason.  In addition, UNIP vice President Senior Chief Inyambo Yeta, and seven other members of UNIP were remanded in custody, in connection with a spate of mysterious bombings by a group calling itself the Black Mamba. The group was later charged with treason. Committal to trial was legally delayed.

The Law was further changed, despite dissent in parliament, to facilitate legal frameworks within which dissent can be further impeded. An example is the Public Order Act Cap 104, amendment which was ultra vires the Supreme Court ruling of January 10, 1996. Another attempt to stifle the right of individuals to freely express themselves was through the Media Bill, however this failed.

These acts by the state can be argued to have been ill informed as the Law derives itself from legitimacy that a people give. The political party in government, having failed to resolve constitutional concerns that a people deemed legitimate, merely subverted its own governance legitimacy.

With governance legitimacy waning into oblivion, in the 1996 election period acts by the executive can at best be said to have been acts of desperation. In view of the fact that the contentions in the constitution may not allow for more democratic participation in the elections as some citizen's right to participate were curtailed[7], the political party in power was at the crossroads.

To redress the volatile political situation it now found itself in, the executive, with recourse to the powers bestowed by the Law and those not, absolved government institutions of their responsibilities through provision of minimal financing.  The executive (that is the president in particular) became the major institute through which public funding could be executed. This was facilitated by a partisan parliament's high appropriations to the office of the president, under the guise of a presidential discretionary fund.

The presidential discretionary fund was used to "bait" people into mass support of the political party in government through donation to churches, sports clubs and whatever else the executive believed could increase his party's popularity. Even government institutions like schools and health facilities were now being funded through the presidential discretionary fund! The implication that such behaviours by the executive seriously undermined long-term planning was inconsequential, as the ultimate goal was increased and sustained political hegemony and protection of self-interests.

Noteworthy, is the fact that the presidency became synonymous with the executive. Establishing the existence of a Cabinet became an exercise in futility, except when the Auditor General ‘s office released its report, which was always ignored with impunity. Individuals cited for abuse of public funds continued to occupy public office.

A beggar syndrome was inevitable. A situation worsened by the executive's decision to sale public housing to sitting tenants and indeed the decision by the executive to provide housing, in order to increase its hold on patronage. While, the initiative may have had positive attributes, the problem is that individuals tasked with its execution tended to abuse their power. There have been cases where government ministers unscrupulously evicted tenants so that they acquire the property.

4.0   The Governance Consequences

Governance consequences are twofold: breakdown of acceptable democratic governance, and increased civil and political dissent.  The latter, is inarguably a legitimate cause, even though in emergent democracies it is often constrained by legal instruments.

The country's continued breakdown of acceptable modes of governance was the perfect recipe for increased government corruption, as evidenced by the discredited and illegal Presidential Housing initiative. An entity through which millions of public funds were funnelled into without any controls whatsoever.

Corruption is a testimony of failure of governance. When corruption is endemic as witnessed in the last decade, institutions of governance are abused by illicit and self-serving behaviours of political leaders.  The socio-economic and political consequences of corruption (which include inability to deliver services and increased inequalities) lead to declining legitimacy of government, and seriously undermined democratic values and political equality.

Further, when corruption is endemic, a government behaves in an indeterminate manner. Issues of governance and self and political interests become at odds, and to the detriment of a country's citizenry.  The failure of government is more elaborate, when individuals cited for corruption aspire and continue to hold power as it is evident that the political party in government has no will to stop the scourge.

Citable examples of the executive's acts in this regard include the usurping of executive powers from senior civil servants by government ministers, and the emergence of "undefined" district senior civil servants, District Administrators (DAs). The DAs sole purpose was to advance the interests of the political party in power, not different from the pursuits of the Nazi's in Hitler's Germany. DAs were ill-informed and malignant arms of the executive and not necessarily government agents at District level. 

Government ministers became their own ministries accountants and, disbursements and procurements intended for government projects were now being either borrowed for their own political party activities or procured from themselves.  A classical example is one known minister whose first task in government was to sell a fax machine to his ministry!

Perceptions of the people that the political party in government was no longer meeting their governance goals and aspirations towards 2001 elections gave rise to increased civil society activity and the emergence of more political parties – mostly a consequence of manipulation in the political party in government.

An attempt by the political party in power in 2001 to extend the term of office of the president from the constitutional provision of two five year terms, was met with a resolved civil society determined to uphold democratic governance and respect for the supreme law of the country. This period evidenced concerted government machinations and misinformation in defence of extending the term of office, through the public media and other institutions like the church and NGOs.

An offshoot of this constitutional development was the emergence of inner dissent within the political party in government. This dissent was met with expulsions from the party in power. The dissenting individuals (most of them cabinet ministers) consequently formed their own political parties. This group it must be mentioned not only derided civil society opposition to an extension of the term of office, but also " piggy backed" on popular dissent.  That the executive usurped executive powers of instruments and institutions of government and indeed people participation in governance can be partially blamed on this group of people. 

Acts aimed at criminalising the legitimacy of the right of people to freely assemble or dissent were introduced, supported or defended by most members of this group. Most members of this group celebrated the passing of the Constitutional Amendment Bill in parliament and congratulated each other for among others barring former President Kaunda from contesting the 1996 General Elections[8].  The prime motive at the time was the continued protection of self-interests and unabated corrupt practices.

5.0   Fencing the 2001 Elections

After a decade in which people's aspirations and expectations in their political choices of the 1991 and 1996 elections reached an all time low, the 2001 December elections were seen as another opportunity for change. Based on an over 70 percent voter turnout, it can be said that the argument that people are not aware of not only their right to make political choices, but also the power of this right, is unfounded.  The desire to actively participate in the governance of their own country can not be understated.  This awareness and desire was however constrained.

First, by the fact that the Constitution under which the elections were being held still had serious unresolved issues. However, it was apparent that yet again a people exhibited political "amnesia". Constitutional contentions  of 1996, were forgotten. This omission implied that any electoral process under the Constitution of 1996 is acceptable!

Second, by the behaviour of the executive and the party in power, and its associated corrosion of public accountability and transparency. In addition, the transgression on procedures and roles of government institutions (as cited in the case of DAs).

Third, and most significant by the deliberate laxity, unpreparedness and impunity with which the statutory body charged with managing the electoral process behaved.  Conflicts and concerns arising before the election were trivialised as the electoral body in Zambia assumed a "know it all attitude".  Calls for political party regulatory mechanisms, like an electoral code of conduct and unbiased access to the public media, were relegated to the backyard of political rhetoric.[9]

The elections of December 2001 can at most be described as "a planned disaster" to the detriment of people's expectations, but to the interests of a continuum of governance decay instituted by the political party in government.

The timing, logistics (adequacy in preparations) and transparency (in particular release of the results) were abysmal.

Challenges of the process and result of the "planned electoral disaster" were consequently pursued through legal channels but to no avail. The Law at this junction was used to negate the legitimate concerns of people.  This being, the acceptance of a political leadership likely chosen through an electoral process fraught with irregularities. The contention being accepting such a leadership negates the right to make political choices.

The judicial adjudicators based their decisions on the supremacy of the constitution in resolving political and electoral concerns. That is, Constitutional and electoral provisions that allow for elected individuals to take office before resolution of concerns and conflicts were used.

It must be noted that, this argument is founded on the historical constitutional thinking[10] in which a closed system of legality is the standard by which the degree of legitimacy of people’s political concerns are measured and resolved.  The underlying assumption of this assertion is that legitimacy is a mere expression or offshoot of legality. 

The problem with this assertion is that the elevation of legality over legitimacy is not in pact with what the people intended as the sovereign subjects of the constitution itself.  It inarguably, relegates the people to subjects of the law with its continuum of contentions, and in third world countries like Zambia puts the people at the mercy of the political party in power.

It is further argued that for judicial adjudicators to rule at a preliminary level that electoral political contentions should be addressed within the constitutional provisions, when in fact people in far flung and inaccessible areas were still exercising their right to make political choices days after the president was announced is out rightly a mockery.

How were they supposed to vote for a president of their own choice when a president was already sworn in? It does not really matter that the majority had already made their choice. The right to make influential political choices is an inalienable right.

6.0   The Position and Conclusion

Legality (lawfulness) and legitimacy should be clearly distinguished and understood in a broader context.  Legitimacy does not deal with whether actions of governance institutions are exercised according to the Law[11]. Legitimacy is a question of whether these acts meet with what is publicly perceived to be fundamental and acceptable. This includes issues of fair and equitable practices, and recognition of the right to dissent.  The law can not be reduced to an opportunistic and convenient conduit of control and domination by the political party in government.

It is clearly evident that the Zambian judicial branch of government was adhering to the rule of law in its narrowest sense. A government that adheres to the rule of law in its narrow sense (anything according to the law) inevitably gives rise to questions about its legitimacy. The critical question is, on which side of the pendulum of democratic governance does the judiciary stand in the legality versus legitimacy issue?

In Zambia, there is a precedent where the law transcends a people's legitimacy to issues of democratic governance. The legal arguments of the year 2001 were not the first.

For example in 1996, the Zambia Democratic Congress (ZDC) judicial challenge of the constitutionality of the Constitution of Zambia (Amendment) Bill 1996 and attempt to block the State President's assent, was dismissed by the Supreme Court. The Court, in partial ruling, ruled that it was not impossible to amend the Constitution in the manner Parliament did using Article 79 of the Constitution of Zambia Act, 1991.  This ruling did not attempt to realise the underlying argument that for a partisan Parliament to amend the Constitution in the manner it did, was seriously a negation of the people's right to make decisions on their own democratic governance instrument.

It must be borne in mind that judges and lawyers in advancing and using legal provisions to regulate and or to legitimise governmental power is a function of their relationship to the dominant state. However, the sustenance and protection of the rule of law is not the sole preserve of the judiciary.

The challenge for the people's right to make political choices and the electoral process in Zambia can be summed in terms of Muna Ndulo's[12] argument for institution of constitutional democracy in Africa. That is, "ensuring that the legitimacy of the government is regularly established by requiring that governmental powers are not assumed or exercised except with the mandate of the people given at periodic intervals through free and fair elections or referenda that are executed and administered according to the constitution and well defined electoral laws, and; resolving disputes, including disputes relating to the constitutional proprietary of legislation and other government acts, impartially and in accordance with the constitution and by regular, ordinary courts which are independent of the disputants." 

The challenge for Zambia however goes further than these summations.

The Zambian constitution is not yet an acceptable instrument of governance and political conflict resolution. Concerns raised over the years have to be addressed in the interest of democratic governance and to allow the people ownership of the fundamental law.

The consequent judicial recourse and judgements (stayed or not) thereof premised on the constitution raise questions as to what the Zambian constitution is. Is the constitution merely a legal instrument of legitimising the status quo in terms of social and political order? Or is it a prescriptive instrument that defines rules and procedures, institutions and procedures that shape the political basis for change and actualisation of people's aspirations? At what stage should it engage the question of the legitimacy of people's electoral concerns, in a political environment of mistrust and where the political party in power has overwhelming influence on the judiciary?

In closing our discourse, our position is, it must be acknowledged and accepted that the measure of the advance of democratic governance is the degree to which public opinion/expression can control political behaviours of individuals tasked with government.  The failure by the Law to protect people's right to control political behaviours by individuals in government that undermine the legitimacy of governance and the expected functions of government are an unacceptable negation of the Law itself, and an impediment of the advance of democratic governance.

[1] Muna Ndulo, Democracy, Institution Building and Poverty in Africa, Villa Borsig Workshop Series 1999

[2] The Mwanakatwe Constitutional Review Commission of Statutory Instrument number 151 of November 22, 1993 (under the Inquiries Act cap 181)

[3] United Nation Independence Party

[4] MMD (Movement for Multi Party Democracy)

[5] Inter-Party Dialogue in Zambia, May to June 1996, Afronet Report ( Reports

[6] Note, an Israel agency NIKUV was contracted to undertake voter registration and voter card printing

[7] The major opposition party UNIP boycotted the 1996 elections. In the same year the National Democratic Institute (NDI) withdrew from Zambia citing the likelihood of government actions curtailing electoral competition and participation, political discourse and freedom of expression.

[8] Some of these individuals were reported as singing and dancing at the passing of the controversial bill.

[9] It must be noted here the electoral process was a critical concern preceding the 1996 elections and was never resolved.

[10] Gunther Teubner and Zenon Bankowski, Law as an Autopoietic System (Oxford: Blackwell, 1993)

[11] The constricted interpretation of the rule of law.

[12] c.f. citation 3.

Wednesday, August 3, 2022

Inkblots from the road - of Acacia shadows in the night

 As the dark shadows of the Acacia trees fly by, I look deep beyond the trees. I know they are there. I can not see them. But I can smell that, they are there.

Wood fires flickering in the shadows of the trees, clouds of smoke hanging over the trees. 

It is them. The ones, we leave behind. The ones, that fall before us. The ones, that fail to walk with us. 

I wonder how, they feel. Living with us, yet apart from us. 

More than half a century of our independent Nation-States existence, beyond the dark shadows of the Acacia trees, they still dwell no different from Shaka Zulu times. The despair, the feelings of being forgotten, must be unbearable. 

For they see us. In the night, they do not have to search the shadows of the trees to see us. We live apart from them, in a world where stars dance in our ceilings.

Pity. And we call ourselves human. 

Just reflections of the dichotomy of our existence. Melancholia, bleeds the soul. For, I never know how to say sorry. Neither can I imagine, dwelling beyond the dark shadows of the Acacia trees.

Ora pro nobis.


Mentations of a night travel to Siavonga - July 28, 2022

Wednesday, July 27, 2022

A dialectic understanding of the effective ways into the fight against can "enemy that fights back"


Discussion Paper presented at the National Consultative Workshop on the Formulation of the R-NACP July 27, 2012 Lusaka

1.0  Introduction

Our blueprint for the fight against corruption has so far been a promulgation of a plethora of anti-corruption legislation; establishment of various public bodies whose mandate is prevention, investigation and prosecution of corruption; reforms in how government does business and provides services to the public[1]; and, reform the judiciary so that serious economic crime and complicated corruption cases are expediently dealt with. Notwithstanding that establishment of anti-corruption bodies, legislation review and reforms are critical, year in year out corruption measurement indices are evidencing the contrary.

Could it be that, we are always missing something? Or, that corruption is a virus that mutates immediately we develop a new vaccine? Or perhaps, our blueprint might be lacking factual basis or historical validity!

This discussion Paper argues that whereas we could be missing something, the efforts made so far are commendable. The evidenced shortcomings simply necessitate that there should be a comprehensive review of our long - established assumptions and practices - with such review necessitating more efforts towards a collective will to achieve collective behavioural change, because corruption is an “enemy that fights back”[2].

This Paper in addressing itself to the topic “International Experiences and Best Practices in National Anti-Corruption Policies (NACP): A dialectic understanding of the effective ways into the fight against can ‘enemy that fights back’”, seeks to provide a contradiction of ideas that serves as the determining factor in their interaction and navigating the way forward.

2.0  International Experiences

International experiences in anti-corruption are replete with insights of the flaws in the choice of terms or concepts used in anti corruption strategies or policies. This Paper highlights a few.

Holistic, broad-based approach, and coordinated approach

The quest for a holistic, broad-based approach and coordinated approach to anti-corruption has been a lullaby of past anti-corruption strategies. Experiences so far have evidenced that the approach has difficulties in setting priorities, sequencing and ownership. Turner and Hulm (1997) argue that “national ownership can be “kidnapped” by national elites, who may steer anti-corruption approaches towards areas that are not too damaging or sensitive for the powers in place; and that national initiatives may also just be the result of international pressure behind the scenes, while real ownership is lacking”[3]. Turner and Hulm (1997), however, observe that “the politics of anti-corruption policy making have been largely neglected, although an understanding of the political context and policy dynamics is crucial for quality policies”[4].

In addition, Hussmann (2007) observes that “institutional arrangements to coordinate and oversee implementation of the initiatives are often ill-conceived from the start, as anti-corruption agencies usually do not have the authority, leadership and political backing to compel powerful line ministries to comply with anti-corruption measures[5].

Further, Hussmann (2007) argues that “putting anti-corruption strategies into practice is challenging for the simple reason that they cut across numerous public agencies, interact with other public management reforms and, most importantly, encounter high levels of resistance; and that “in most developing countries policy implementation phases are the ones where political and economic actors most vividly play their cards in an attempt to capture, torpedo, distort or sidetrack reforms in line with their interests”.

Severe mismatch between political problems and technocratic solutions[5]

There is often a severe mismatch between political problems and technocratic solutions. Thence, Hussmann (2007) argues that, despite the recognition that corruption is to a large extent a political problem, anti-corruption strategies or policies unfortunately deal with the phenomenon largely as a technocratic and procedural issue[6].

Enhance transparency

In hindsight, it is now argued that transparency may actually simply strengthen already-influential interests well-placed to capitalise upon access and openness, and can even facilitate corruption[7]. This is, wherein, transparency is not enhanced in a manner that does not provide citizens the incentive or reason to “look in” and feel safe to do so; and, to have the political resources and opportunities to act on what they see[8].

This Paper also establishes that, although there is “openness” in anti-corruption strategy or policy formulation in developing countries it is often more a product of the State elite than non-State actors, and that most stakeholders are generally ill informed about policy development issues, thus leaving the elite to fashion mass options in policy development and implementation. Further, during implementation the open and transparent spaces (the “look in”) for information exchange or the monitoring of progress are often closed, because, governments have had the tendency to close their doors; or only open selectively to identified non-State actors[9].

Laws, laws and laws; and, anti-corruption agencies

Many countries have anti-corruption laws on the books (even if penalties need updating) and an anti-corruption agency of some sort ((with numerous Donor funded intervention – the question of sustainability). However, societal behaviours are such that only a few individuals in our societies have a compelling stake in their success. In addition, support from the Courts and prosecutors is often weak or absent, and enforcement is often ineffective.

Civil Society impact

That civil society has a central role to play in corruption control is inarguable. However, the view of civil society participation in anti-corruption is often narrow and merely serves to have minimal impact. The problem is. Many civil-society actors exist in formal organisations that advocate reform as a public good; and, in developing countries such organisations are donor-funded, operate mostly in and around national capitals, and are guided by donors’ agendas[10].

The thought now is that, the strength of civil society actually lies in informal social groupings and activities that have little to do with public purposes yet still build social capital in the form of networks, skills, and trust that can be mobilised in the fight against corruption. Johnston and Johnsøn (2014) argue that, “collective action cannot rely solely on formal purpose-oriented organisations, but must engage a wider range of social ties and incentives”.

3.0  Best Practices in National Anti-Corruption Policies

This Paper, first, acknowledges that the author is averse to the term, “best practices”. For best practices are contextual, and the concept can sometimes be conceived to mean “one shoe size fits all”.

Michael Johnston’s introduction in “Reforming Reform: Revising the Anticorruption Playbook” aptly puts it. Johnston argues.

“Best practices” are elusive and do not always transfer well from one setting to the next. However, “better practices” are possible if we understand how corruption arises as a political and social issue, and how well governed societies got that way. We often turn history upside down, overemphasizing reform from above while neglecting contention from below; and get history backward by mistaking outcomes of contention for the causes of better government. “Deep democratisation”–enabling citizens to demand justice and better government–tailored to contrasting situations and syndromes may yield better long-term result” [11].

Notwithstanding the foregoing, the “best practices” in national anti-corruption polices, literature shows, among others, are those that focus on:

(a)   Blending localised knowledge, intent and purpose as critical elements of anti-corruption.

(b)   Legislative and other measures necessary to establish as criminal offences active and passive bribery when committed intentionally, and when committed intentionally in the course of economic, financial or commercial activities, i.e. including the private sector.

(c)    Measures and systems to facilitate reporting by public officials of acts of corruption to appropriate authorities, when such acts come to their notice in the performance of their duties, and provide protection for doing so; and, with such measures being inclusive of members of the public - whistle-blower protection legislation.

(d)   Measures requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials.

(e)   Rules of conduct for all public officials in order to strengthen integrity and prevent opportunities for corruption among its members.

(f)    Need for to encourage honest employees to raise their concerns and report wrongdoing within the workplace without fear, a crucial corporate governance tool to promote safe, accountable and responsive work environments

(g)   Need for multi-disciplinary approach as evidenced by having one agency specialised in investigating and prosecuting such cases.

(h)   A streamlined fast tracked procedure from charge to finalisation.

(i)     Target society based intervention seeking to influence change in behaviours and norms.

4.0  Retrospect - The effective way to fight an “enemy that fights back

First, we must accept that the failures of policies is because policies are created by a multiplicity of actors with a plethora of, often conflicting and at times changing political and financial interests.

One of the most salient features of public policy making is that, it is not a highly rational process with static goals. Thence, it is observed that, policy making is often a “fuzzy betting attempt to influence the probability to future situations”[12]. For, the major threat to anti-corruption policies is that they restrict power, as they affect the distribution of or access to political power and reduce opportunities to accumulate (illicit) economic wealth.

Second, corruption not only adapts to particular circumstances, but the circumstances may also adapt to established corruption dynamics; and measures that exclusively target corruption do not always make a difference[13]. Hussmann (2007) buttresses this argument by observing that – “Corruption is often compared to a disease or a cancer and just as in the medical field a reasonable diagnosis is needed to decide how to cure the disease by addressing its causes, not simply the symptoms”.

Third, corrupt individuals do not necessarily set out to win against those opposed to them, but instead to perpetuate or to create a status quo to increase their privileges or financial gain; thus, corruption could be considered an infinite game[14].

Fourth, corruption always has evasive action. It always gets us looking in the wrong direction, and draws us into a delusion of anti-corruption activity. Because, corruption always finds its way by changing the rules, overstepping them or taking new forms as the world evolves.

Lastly, corruption is cannibalistic.

In retrospect, it is inarguable that corruption is an “enemy that fights back”. How then do we effectively fight this enemy?

To understand, the effective ways, we here cite two critical viewpoints. These are from Daniel Kaufmann[15] and Corinna Wong[16] .

Daniel Kaufmann writes.

Corruption is a symptom of a larger disease - the failure of institutions and governance, resulting in poor management of revenues and resources and an absence of delivery of public goods and services. We must think beyond anti-corruption rhetoric and traditional tactics. We need to be more strategic and rigorous, identifying and addressing corruption’s underlying causes and examining the weaknesses in key institutions and government policies and practices. We have to focus our efforts on the broader context of governance and accountability. Only then can we see the many other shapes and forms corruption can take and address this epidemic[17].

And, Corinna Wong writes.

The fight against corruption is always more than bringing culprits to justice and plugging loopholes conducive to the crime. It is also about changing people’s attitudes towards corruption and misconduct. Corruption perpetuates if the population tolerates it and sees it as a way of life. On the other hand, in a community with a strong probity culture, people are more likely to appreciate fair competition, reject bribery, and cooperate with law enforcement agencies when encountering corruption. Public support is therefore fundamental to the success of an anti-corruption campaign”.

In conclusion, perhaps, the effective way to fight an “enemy that fights back”, this Paper observes, in part, can be learned from Corinna Wong’s TAPE. That is, anti-corruption should -

(a)   Have a Target - oriented strategy - customise anti-corruption services for different target groups;

(b)   Have an All-round communication strategy - integrate face-to-face contacts with multimedia publicity to spread the probity messages to people from all walks of life through multiple platforms.

(c)    Have a Partnership strategy - partner with different stakeholders in the community to promote integrity; and have an,

(d)   Engagement strategy - engage members of the public to take ownership of the anti-corruption cause and garner their support for preventive education activities.

[1] Reform public procurement process, public financial management systems, regulate emoluments in the public sector, et cetera.

[2] Adapted from Phil Mason - Twenty years with anti-corruption: reflections on reflections (

[3] Turner, M. and Hulm, D. (1997), “Governance, administration and development”, McMillan Press, London, UK

[4] Ibid.

[5] Hussmann, K. (2007). Anti-corruption policy making in practice: What can be learned for implementing Article 5 of UNCAC? Synthesis report of six country case studies:Georgia, Indonesia, Nicaragua, Pakistan, Tanzania, and Zambia. U4 report 2007:1 (1st part), U4 Anti-Corruption Resource Centre, Chr. Michelsen Institute, Norway

[6] Ibid

[7] Johnson, M. (2014). Corruption, Contention, and Reform: The Power of Deep Democratization. Cambridge University Press.

[8] Ibid.

[9] Hussmann, K. (2007). Anti-corruption policy making in practice: What can be learned for implementing Article 5 of UNCAC? Synthesis report of six country case studies:Georgia, Indonesia, Nicaragua, Pakistan, Tanzania, and Zambia. U4 report 2007:1 (1st part), U4 Anti-Corruption Resource Centre, Chr. Michelsen Institute, Norway

[10] Michael Johnston and Jesper Johnsøn (with Olivia T. Gamble), “Doing the Wrong Things for the Right Reasons? ‘Do No Harm’ as a Principle of Reform,” U4 Brief 13, December 2014, -as-a-principle-of-reform/downloadasset/3696.

[11] 2018 by the American Academy of Arts & Sciences

[12] Shull, R. (2007). Rush to Policy: Using Analytic Techniques in Public Sector Decision Making. Routledge


[14] Ibid.

[15] President, Natural Resource Governance Institute (NRGI)

[16] Assistant Director, Assistant Director of Community Relations Department of the Independent Commission Against Corruption, Hong Kong, China