Judicial and litigation reform
If we are to tackle capture, we must be able to prove our case in the court of law; without pretrial discovery, this process is exponentially harder.
- The Office of the Public Protector:In South Africa, thisindependent State institutioncharged with “investigating, rectifying and redressing any improper or prejudicial conduct in state affairs and resolving related disputes through mediation, conciliation, negotiation and other measures to ensure fair, responsive and accountable public sector decision-making and service delivery” wrote the original “State of Capture”report that led to the formation of the Zondo Commission. It has the position and influence to be a really important anti-corruption force as well as a good model for Ombudspersons worldwide.
- Multi-jurisdictional investigations and prosecutions:Despite the inherent innovations in South Africa’s process to address State capture, a common lament of observers was the State’s inability — so far — to cooperate with other countries in order to pursue parallel investigations and prosecutions in the offshore jurisdictions from where the Gupta family practiced corporate capture. “Regulators and enforcement authorities from different countries are becoming more collaborative in their approach to fight bribery and corruption: the OECD Working Group on Bribery currently has 44 member parties. Corporations and their counsel should take note and be prepared for the possibility of an isolated investigation snowballing into a multi-jurisdictional matter. The possibility of facingmultiple prosecutions and regulatory disclosuresis very real.”
- Criminal liability for the object of State capture:One of theZondo Commission’skey recommendations was to ask “the government to consider the creation of a statutory offence making it a criminal offence for any person vested with public power to intentionally use that power in any way other than ‘in good faith for a proper purpose.”
- Pretrial discovery laws:Part of the black box problem is that we lack data, transactional evidence, and methodologies to identify, track, and measure capture. In the U.S. and most other common law countries, discovery laws exist so that attorneys can prepare the evidence ahead of a trial, effectively giving plaintiff and defendant the best opportunity possible to prepare their arguments, as well as more effective case management capabilities to the judge. The U.S. has the most favorable pretrial discovery laws, whereas virtually all civil law countries have no pretrial discovery, instead relying on lawyers and judges to produce evidence once a trial is underway.The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Mattersis a multilateral treaty that provides for procedures to obtain evidence in foreign countries; however, its usefulness depends upon comity with equivalent institutions or laws in those countries.
- Case law:Many experts mention the importance of using strategic litigation to establish new case law and jurisprudence as bulwarks against grand corruption and State capture. According toDevi Pillay from Public Affairs Research Institute(PARI), “A lot of the legal mobilization has been to take the government to court. That ended up with reforms to get the government to work and change. It was the fruit of successful civil society mobilization. Good examples include: Council for the Advancement of the South African Constitution, Freedom under Law, and the Helen Suzman Foundation. A lot of these pivotal cases ended with anti-corruption legal principles, which set an important precedent. One innovation is the principles that the anti-corruption units must have in the first place.”