Table Of ContentCorruption and Constitutionalism in Africa
Corruption and
Constitutionalism in Africa
Revisiting Control Measures and Strategies
Edited by
CHARLES M FOMBAD
NICO STEYTLER
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Stellenbosch Handbooks In African
Constitutional Law
The Stellenbosch Handbooks in African Constitutional Law series engages with contem-
porary issues of constitutionalism in Africa. The first experiments in democratic and con-
stitutional governance in Africa that started after independence were soon overtaken by
dictatorships, and arbitrary and repressive rule. The pulling down of the Berlin Wall followed
by the collapse of the Soviet Union unleashed new forces of democratization and new hopes
for the establishment and entrenchment of constitutional governance and constitution-
alism in Africa. This series is designed to identify, analyse, and promote serious discussion of
the critical issues that can shape, refine, and deepen the consolidation of constitutionalism
in Africa.
Although comparative constitutional law has become a major field of legal scholarship,
most of the extensive research that has been carried out has focused on long-e stablished dem-
ocracies. The only African country that has attracted sustained research interest from a com-
parative law perspective is South Africa. The few books that present perspectives on African
comparative constitutional law focus narrowly and exclusively on developments in either
Anglophone, Francophone, or Arabophone Africa without cutting across these divides. Yet,
since 1990, Africa has been at the centre of profound and far- reaching constitutional develop-
ments. Little comparative research has been carried out to understand the nature of these con-
stitutional changes, to review their impact on the ethos of constitutionalism on the continent,
and to explore prospects for the future.
The overriding objectives of the Stellenbosch Handbooks in African Constitutional Law
series are, first, to stimulate interest in comparative constitutional research and the different
constitutional traditions operating in Africa by presenting a comprehensive analysis of the
latest thinking, research, and practice. In this way, the series intends to fill the huge gap in the
existing literature on comparative African constitutional law as well as point to directions for
future research. Second, each volume will bring together high quality, innovative, and original
material from diverse perspectives written by scholars and legal practitioners drawn from the
different constitutional traditions operating on the continent. In this respect, each volume
will strive to cover Anglophone, Arabophone, Francophone, Hispanophone, and Lusophone
Africa. In many respects, this will ensure that African voices are heard in the global constitu-
tional debate. Third, because most African countries share many common features, such as
the colonial legacy, geographical proximity, and social, economic, political, and cultural con-
ditions, the books in the series adopt a comparative approach that highlights gaps and good
practices in a manner that will provide a rich source of authoritative information for pro-
moting an inter- African legal dialogue and the cross- fertilization of ideas between different
constitutional traditions. Finally, the books in the series are intended to act as a repository for
the accumulation of knowledge, experience, and expertise on the continent. Each handbook
stands alone and is intended to provide an invaluable source of authoritative reference ma-
terial for academics, researchers, students at all levels, as well as legal practitioners and policy
makers.
Stellenbosch Handbooks in African Constitutional Law
Series Editor
Professor Charles M Fombad, Institute for International and Comparative Law in Africa
(ICLA), Faculty of Law, University of Pretoria
Series Advisory Board
Professor Christof Heyns
Director, Institute for International and Comparative Law in Africa, University of Pretoria,
and Member of the UN Human Rights Committee
Professor Babacar Kante
Former Vice President of the Senegalese Constitutional Council
and Emeritus Professor of law, University of Gaston Berger de Saint-L ouis, Senegal
Professor Kofi Quashigah
Dean, Faculty of Law, University of Ghana, Legon
Professor André Thomashausen
Former Chair of the Department of Public, Constitutional and International Law,
College of Law, University of South Africa
Professor Francois Venter
Former Dean and Research Professor,
North- West University,
Professor Theunis Roux
Professor of Law and Associate Dean (Research), Law Faculty,
University of New South Wales
Professor Mohamed Bousoltane
Director General, Centre of Research in Constitutional Law at
the Constitutional Council of Algeria
Professor Nico Steytler
South African Research Chair in Multilevel Government, Law and Development
Dullah Omar Institute of Constitutional Law, Governance and Human Rights
University of the Western Cape
Hon. Judge Ben Kioko
Vice President
African Court on Human and Peoples’ Rights
Arusha, Tanzania
Dr Lukman Abdulrauf
Senior Researcher
South African Research Chair in International Constitutional Law
Faculty of Law
University of Pretoria
Professor Charles M Fombad, Institute for International and Comparative Law in Africa
(ICLA), Faculty of Law, University of Pretoria, South Africa
Series Advisory Board
Professor Christof Heyns
Director, Institute for International and Comparative Law in Africa and Member of
the UN Human Rights Committee
Professor Théodore Holo
Former President of the Constitutional Court of Benin
Professor Babacar Kante
Former Vice President of the Senegalese Constitutional Council and Emeritus Professor
of law, University of Gaston Berger de Saint-L ouis, Senegal
Professor Christina Murray
Emeritus Professor of Law,
University of Cape Town
Professor Muna Ndulo
Director of the Institute for African Development,
Cornell University
Professor Kofi Quashigah
Dean, Faculty of Law, University of Ghana, Legon
Professor André Thomashausen
Emeritus Professor, College of Law, University of South Africa, Pretoria, South Africa
Professor Francois Venter
Former Dean and Research Professor,
North- West University, Potchefstroom Campus
Professor Ameze Guobadia
Research Professor,
Nigerian Institute for Advanced Legal Studies
Professor Theunis Roux
Professor of Law and Associate Dean (Research), Law Faculty, University
of New South Wales, Sydney, Australia.
Professor Mohamed Bousoltane
Director General, Centre of Research in Constitutional Law at
the Constitutional Council of Algeria
Professor Nico Steytler
South African Research Chair in Multilevel Government, Law and Policy
Dullah Omar Institute of Constitutional Law, Governance and Human Rights
University of the Western Cape, South Africa
Hon. Judge Ben Kioko
Vice President
African Court on Human and Peoples’ Rights
Arusha, Tanzania
Professor Erika de Wet
South African Research Chair in International Constitutional Law
Faculty of Law
University of Pretoria, South Africa, and
Honorary Professor, Faculty of Law
University of Bonn, Germany
Dr Lukman Abdulrauf
Senior Researcher
South African Research Chair in International Constitutional Law
Faculty of Law
University of Pretoria, South Africa
Preface
This fourth volume in the Stellenbosch Handbooks in African Constitutional Law series is,
like its predecessors, based on the Stellenbosch Annual Seminar on Constitutionalism in
Africa (SASCA). In keeping with SASCA’s founding objectives, the aim is to focus on an
issue of critical constitutional importance to Africa in its ongoing development of govern-
ance founded on constitutionalism and democracy.
And that issue is indeed critical. There can be little doubt that the endemic corruption
that has spread into every aspect of social, economic, and political life is at the heart of the
crisis of constitutionalism in Africa. The only surprise is that it is not until recently that the
severity of the problem has attracted the attention a catastrophe of this magnitude warrants.
Most anti- corruption measures over the years have been inadequate, serving merely as sym-
bolic gestures to give the impression something is being done. The African Union’s declar-
ation of 2018 as the ‘African anti- corruption year’, albeit belated, is an open recognition by
African governments of the impact corruption will have on the continent unless urgent steps
are taken.
The key objective of this volume is to draw attention to the problem of corruption and
the need for remedial action. The complexity of the situation, with all its multi- faceted
social, political, economic, and legal dimensions, cannot fully be explored in a single work.
Nevertheless, the intention to put this matter on the agenda when it was discussed at the
2017 SASCA seminar seems to have worked in that, as noted, the African Union not only
declared 2018 a year to combat corruption but also set aside 11 July of every year as an ‘Africa
anti- corruption day’.
The SASCA programme is greatly indebted to the Director of the Stellenbosch Institute for
Advanced Study (STIAS), Prof Hendrik Geyer, and his team led by Prof Johann Groenewald,
as well as the Director of the Institute for International and Comparative Law in Africa
(ICLA) of the University of Pretoria, Prof Christof Heyns, through whose collaboration the
SASCA seminar series is funded. We also express our profound gratitude to the Swedish
Riksbankens Jubileumsfond that actually funds the seminar.
Following on the 2016 SASCA conference and volume 3 in the Series, Decentralisation and
Constitutionalism in Africa, this volume is also the product of the partnership between the
Institute for International and Comparative Law in Africa and the South African Research
Chair in Multilevel Government, Law and Policy (SARChI) at the Dullah Omar Institute,
University of the Western Cape.
We gratefully acknowledge the support of the Konrad Adenauer Stiftung Rule of Law
Program for Sub- Saharan Africa, and the South African Research Chairs Initiative of the
Department of Science and Technology and the National Research Foundation, through
the SARChI Chair in Multilevel Government, Law and Development. We also wish to
thank Andre Wiesner for his incisive and meticulous editorial eye. Oxford University
Press has worked closely with us on this series, notably in the persons of Eve Ryle- Hodges,
Jamie Berezin, and Ashirvad Moses, and we thank it for its continued support and
encouragement.
