Reduce corruption by reducing discretion

South Africa and other societies spend untold millions on combating the scourge of corruption. Conferences are held on how to fight it more effectively and entire academic fields are dedicated to analysing it. We tend, however, to overthink and complicate corruption. The solution is quite simple and evident: reduce discretionary powers. This may not eliminate corruption, but it will lead to a marked reduction in its prevalence.

The Rule of Law is a founding value of South Africa’s constitutional order, and, by virtue of section 1(c) of our highest law which provides for the supremacy of the Constitution “and” the Rule of Law, a value that could be considered to be of equal authority with the text of the Constitution itself.

The doctrine of the Rule of Law is an aversion to arbitrariness; a commitment to government of law, and not of man. It requires the law to be constitutional (thus accord with the values of freedom, equality, and human dignity), understandable, accessible, non-retrospective, and reasonable (in other words, rational, proportional, and effective). It further requires the branches of government to adhere to the separation of powers: the legislature must make law, the executive must enforce law, and the judiciary must interpret and apply law.

It is often said that corruption leads to a deterioration of the Rule of Law; that the more corrupt a society’s government, the less Rule of Law there is. This notion is often expressed by South African politicians. The reverse, however, is true: the less Rule of Law there is, the more corrupt a society’s government. Indeed, corruption is a consequence of a lack of the Rule of Law. Nowhere is this most prominently manifested in the phenomenon of discretionary power.

In brief, when a discretionary power is assigned by Parliament in legislation to an official, it enables the official to evaluate situations, circumstances and facts according to their own subjective knowledge and understanding and make decisions in accordance therewith. Discretion will always be part and parcel of governance; however, since South Africa is founded upon the Rule of Law (and not the rule of man), that discretion must be restrained, circumscribed, and limited by objective legal criteria.

An example of an unrestrained discretionary power is thus: “If the Registrar of Business is satisfied that it is in the public interest, the Registrar may refuse to renew the operating licence.” When Parliament grants unrestrained discretionary powers of this nature – and it does this in virtually every single piece of legislation it enacts – it is chipping away at the Rule of Law and enabling corruption. Indeed, officials are rendered ad hoc law-makers, thereby violating the separation of powers.

That these powers lead to corruption should be self-evident.

When officials have these kinds of powers, there is immense room for misconduct which can be difficult to expose and prove. A fictional Registrar of Business, for example, can, in terms of the above power, decide to not renew any operating licence unless they are generously bribed. Or, a more sinister type of corruption: the Registrar will simply refuse to renew the licences of businesses they dislike for some ideological or personal reason.

The provision, instead, must oblige the Registrar to renew every licence, unless they can produce demonstrable evidence and argue in detail for why a licence must not be renewed. It must be a mechanical exercise as far as possible. If not, pleasing or buying regulators and officials becomes a staple of commercial and business activity. As little as possible must be left to discretion.

I was recently invited to speak at a conference in West Africa on corruption. My presentation would have been exclusively about the legislative delinquency of parliaments and legislatures assigning broad, unrestrained discretionary powers to officials. My flight to said West African country, however, departed without me, because by the time it was scheduled to leave, I was still waiting for a visa. This, after I had been to their local consulate numerous times just to be told one story or another by a lowly official about why I was unable to submit my documents. Two of my colleagues have had similar experiences. I also have colleagues from around the world who could not come to South Africa for practically the same reason: uncooperative visa officials with too much power.

Thus, in a great irony, I was stopped from giving a presentation on the vileness of unrestrained discretionary power by someone exercising an unrestrained discretionary power.

This could have been avoided if, for instance, the law merely required visitors to foreign jurisdictions to submit, online, their addresses and other relevant information to ensure the receiving states knew where and how to find them if necessary. This common-sense approach is not embraced, however, because discretionary powers are the mechanism through which bureaucratic empires are sustained, and it is unlikely that those at the top, who themselves use discretionary powers for unlawful gains, would want it to stop.

As with most other things, it is up to the people to demand that their law-makers submit themselves to the Rule of Law and cease assigning unrestrained, despotic powers to unelected, faceless and nameless officials. An action required of the people if the menace of corruption is to be reduced from an all-consuming scourge to an occasional inconvenience.

Martin van Staden is Legal Researcher at the Free Market Foundation and is pursuing a Master of Laws degree from the University of Pretoria

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