Legal Approaches to Supporting Good Governance and Integrity in Africa
Chapter 4: When things go wrong: addressing integrity problems in the public service
If the integrity safeguards break down States must have in place strategies for taking appropriate action against public officials who abuse their office. This is sometimes complicated by the fact that presidents' traditionally enjoy constitutional immunity from both criminal and civil suit during their incumbency while judges and other senior public officials may also enjoy some immunity. Parliamentary privilege also offers certain protections to legislators. Yet these are often the very people involved in corruption-related activities and as the AU Convention rightly emphasizes, 'any immunity granted to public officials shall not be an obstacle to the investigation of allegations against and the prosecution of such officials', albeit that this is made 'subject to the provisions of domestic legislation'. This emphasizes the importance of strictly limiting the scope of immunities and claims of privilege and the challenge is to provide an 'appropriate balance between any immunities or jurisdictional privileges accorded to … public officials for the performance of their functions and the possibility, when necessary, of effectively investigating, prosecuting and adjudicating [convention] offences …'. This chapter explores these issues in three sections. Section I reviews the scope of constitutional immunities enjoyed by the president and other senior public officials both in a national and transnational setting. Section II explores the scope of the privilege from criminal or civil suit enjoyed by legislators in respect of their parliamentary activities while Section III considers the scope of both criminal and civil liability for public officials who have abused their office.
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