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The corrupt fight against corruption…

By Monaheng Seeiso Rasekoai

The reality is that whenever a debate on corruption comes to the mould, it often amounts to a theatrical performance by politicians and ordinary citizens alike who endeavour to ride on a high horse and pose as ethical virgins like Jeffrey Archer’s fictitious character in Clean Sweep Ignatius.

This debate over the past weeks has been an interesting sloganeering performance where the mundane impact of corruption is discussed by the politicians in sophisticated seminars and plenary discussions like an opera verse of The Three Tenors.In all of these platforms one is inclined to draw a conclusion that it is usually an event that ends in romantic rhetoric…

I will make an attempt to sway away from the mundane routine which the Basotho society were fed these past few days and perhaps all these past years by senior politicians and international diplomats alike but will endeavour to illustrate that the often less debated phenomenon of ‘the corrupt fight against corruption’is clearly an issue that warrants debate.

The ripple effect of fighting corruption through corrupt means is that it bears the potential of destroying the lives of both high-ranking public servants, politicians and ordinary citizens alike on baseless charges which seldom lead to convictions in courts of law.

I will seek to be allowed to debate this issue from a perspective of a legal practitioner who has carefully scrutinized the efficiency of the law enforcement agencies in combating corruption and the factors which are inhibitive in them achieving that end in optimum proportions.

I will ultimately illustrate that one of the reasons which may actually prohibit these institutions from achieving the noble ends of efficiently combating corruption or crime for that matter is when these institutions themselves are infested with corrupt individuals whose main efforts are meant to achieve self-serving ends as opposed to the broad-based mandate of the institutions they serve.

I will, in hindsight endeavour to illustrate that one of the factors that contribute to the waning confidence in the law enforcement institutions is when they dance to the tunes of politicians of the day (particularly those at the helm of power) and compromise their professional autonomy. That in itself I shall strongly contend …is in itself corruption which must be strongly deprecated. For a start, the fight against corruption must not be facilitated corruptly.

The growing trend or perhaps brewing perception is that the DCEO is a gauge that is utilized by politicians to subject the investigated citizens to a conviction of the court of public opinion even prior to the prosecution of their criminal trials.

The radio and newspapers have over the years focused on the institution’s agents-and-corrupt villains or sleuths-versus-corrupt politicians of its work and they translate into headlines. They hardly touched at all on the organizational handicaps and attendant mechanisms which are employed by its agents to act contrary to the mandate of the said institution and let alone the constitution.

Careers of public servants and the so-called ‘Politically Exposed Persons’ are wrecked in this manner on the pretext that they are corrupt (or perhaps villains) and owing to the broad-based powers conferred upon the institution under the innovative and decade-old Money Laundering legislation they wantonly approach courts of law for a parallel civil suit and facilitate the seizure of goods alleged to be proceeds of crime without notice to the suspected individuals subjecting them to severe prejudice – this legislation is yet to be placed on the radar through litigation and a clearly defined procedure must be articulated and refined by courts of law.

The DCEO should not be an institution that is utilized by governments to intimidate political adversaries or the so-called Politically Exposed Persons and the responsibility of achieving this end lies with its professional staff.

It warrants emphasizing that the DCEO is only as good as the support and validation that it receives from the public irrespective of political allegiance or political ideology for that matter. A clear, open and demonstrated performance yields the respect and cooperation of not only the prosecution authorities, the courts and the legal profession which are necessary ingredients for the achievement of the end of combating corruption.

One of the identifiable weaknesses to date that came with the establishment of the DCEO is that for the past thirteen years it has never been ‘independently audited’and such audits given to the members of public or the parliament for scrutiny in order to evaluate its functional efficiency and the modalities of its governance.

The DCEO’s resources and every item in their budget and how the money is used must be beyond reproach. There must be no secret fund aimed at selectively or arbitrarily investigating ‘so-called’incidences of corruption, a lump-sum appropriation for which the institution is not accountable.

The institution must account for every cent because any unexplained fund for a law enforcement agency is extremely dangerous and may pose a threat to the institution’s credibility.

The efficiency of this organization has to be measured and the citizens have a right to know how much of the resources allocated to this institution are utilized for the benefit of combating crime generally and perhaps above all the honk of decay of corruption.

It is only after the assessment or vetting of this institution that we can speak as a country of the significant strides that we have made through this institution to combat corruption.

The only romantic report of a success story in combating corruption in this jurisdiction and which pre-dates the establishment of the entity in international circles was that of the prosecution of the executives of LHDA and several multinational companies but viewed from the other radar in a separate publication it was contended that the limited resources of a poverty-stricken kingdom were committed to the project for both investigation and prosecution at a huge and burdensome cost which ultimately led to the same difference as a huge chunk of the resources which were recovered were diverted to pay the legal fees of the prosecution team.

Given the said context can it safely be termed as the success story? The success of combating corruption need not be measured on the basis of catching the ‘big-fishes’but rather on the basis of scaling down the generally corrupt public and private sector. The selective prosecution and investigation of persons characterised by legislation as Politically Exposed Persons is not per se, a good measure of success in combating corruption.

I am inclined to state that given one’s professional experience as a legal practitioner, corruption is primarily increasing because there is a large-scale descent in the respect shown to the law enforcement institutions and I regret to state perhaps reluctantly that the same applies with The Lesotho Mounted Police Services. This has clearly escalated the atmosphere of resentment of institutions such as the DCEO to be specific.

The laws which endow the institution of carte blanche powers to seize property through courts of law without notice to the suspects whilst admittedly made in the good spirit of combating accruals from criminal activity bears the potential of abuse and arbitrariness. The recent innovations in legislation which have expanded the institutional powers of the DCEO to other public administrative institutions like The Lesotho Revenue Authority bear the potential threat of abuse as well.

A sour experience from this coordination is that in the past three or four years or so, prominent businesspersons in the country(those whose appellation has been legislatively interpreted as ‘Politically Exposed Persons’ and prominent businesspersons) lamented that The Lesotho Revenue Authority was fast disintegrating into a prosecuting authority instead of being a revenue collector.

The situation was so dire that the institution even went further to initiate a litigation against its administrative head –The Commissioner General on allegations of administrative tax offences coupled with economic offences – and quite significantly, and perhaps in yet another isolated example, the head of the apex court in this jurisdiction – The Court of Appeal of Lesotho – on allegations of administrative tax offences.

All these unchequered avenues explored by public administrative institutions bear the potential of being arbitrary especially if the agents of such institutions are not accountable. This country has clearly witnessed an unwarranted ‘institutional arrogance’ in some institutions which effectively attracts the waning confidence of the ordinary members of the public.

From these legislative enactments, it can safely be concluded that whilst the mandate of these public administrative bodies are to combat corruption and or any other economic offences, there lies a potential threat when such institutions through its wayward agents can be tools of corruption in the elimination of political adversaries and those who are perhaps politically incorrect or those not favoured by those in power.

It would clearly be remiss of the present author if the notion of counter-productive institutional arrogance that is most likely to be cultivated from these overwhelming powers given to these institutions by recent legislations is not addressed. It warrants emphasising that the DCEO or any other public administrative institution in this country is a subject of the law and the constitution and it must act or carry out its mandate in line with the supreme law of the land.

This shall help create a platform where law enforcement agents are not merely tools of intimidation but rather, an honourable profession with the sole aim of upholding the rule of law in this country.  

Having spent a substantial portion of this article illustrating the shortcomings of law enforcement institutions, it is noteworthy of me to state categorically that the challenge facing this country is overwhelming, there are unruly and menacing mobs whose prime motivation is to corruptly render the state bankrupt and perhaps ungovernable.

It is only the dignity and professionalism of the DCEO and all the other law enforcement institutions that can clearly salvage the situation…

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