Essay Final - Are gifts and campaign contributions a form of bribery?

Fabrice Tshiyoyi Banyingela

Professor Michelle Donner - BYU Idaho

Writing & Reasoning

28 June 2021

Are gifts and campaign contributions a form of bribery?

Bribery involves corruption and comes in several forms. Bribery is a global phenomenon, present in practically all levels of institutions around the world. Bribery has become rampant in recent decades in our society. Despite the efforts government and local leaders are making, they still don’t have the institutional capacity to win this battle. However, this does not imply that they didn’t fight this corruption and bribery pandemic thoroughly, rather indicate that the impact made upon the poor community was not always their top priority, and rich minds have continued to be sickened by the "disease" only know as bribery.

Since its independence in 1994, South Africa has been struggling to overcome this epidemic of the millennium. Examples like the Gupta family saga, the Zondo commission of inquiry, the Tshwane prepaid meters, Prasa wasting R620 million on unsuitable locomotives, Home Affairs daylight bribery, and the Bosasa Billions are only a few of the most notable incidents in the struggle to fight economical crime. These examples represent only a small portion of the fight against any form of corruption in South Africa. Throughout its history, there are thousands of examples of corruption and despite the efforts of our government to create a variety of security and judicial units such as the South African Police Services (SAPS), the National Prosecution Authority (NPA), the Directorate for Priority Crime Investigation (Hawks), the NPA’s Anti-Corruption Task Team, the South African Special Investigating Unit (SIU), and the Judicial Commission of Inquiry, the country has remained in a state of capture.

Recent scandals in politics, churches, schools, communities, and many organizations have caused the voice of the voiceless to question our national policy on bribery. Are gifts and campaign contributions a form of bribery? Many people would argue that gifts and campaign contributions are absolutely a form of bribery. It is widely known in society that political gifts should be reciprocated because there are no free gifts in politics (Goulderner, 1960; Schmidtz, 1993). Rose-Ackerman (1999, p.92) has argued that campaign contributions are imperfect gifts because “they are intended to express a limited love, identification with a cause”. Voices have been raised for transparency and integrity to be part of our culture. In an effort to end this type of crime, Ulla Tornaes, Danish former Minister for Development said, “Corruption in the form of bribery and misuse of public funds is a major obstacle to democracy and economic development.” Bribery is a roadblock to the economy. It can prevent change, stifle competition, produce inequality, and drift away domestic and foreign investors. Like in the Gupta family saga, South Africa’s high office decision-making was hijacked by the sponsor who paid for the guitar and impose the music. Karan Mahajan described this as “a modern-day coup d’état, waged with bribery instead of bullets. It demonstrates how an entire country can fall to foreign influences without a single shot being fired.” Evidence shows that people who fundraise for most presidential candidates are later rewarded with high positions in government or public enterprises. For example, more than 50% of powerful friends and allies among DR Congo’s diaspora who raised the 100,000$ deposit for Felix Tshisekedi’s 2018 presidential election, received a job or appointment in the Tshisekedi administration.

Part 2

Some people would disagree and say that because they are gifts and contributions, that it is not bribery, but rather someone willing to donate to something they have personal belief in. Chief Justice John Roberts of the Supreme Court of the United States said that “legislation cannot seek to limit general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.” A gift can be anything such as a meal, travel, or tickets given without any expectation. Roberts goes on to warn of the danger of viewing too broadly what constitutes an “official act” that can be exchanged for a bribe. That broad view, he wrote, could mean elected officials risked being convicted of crimes when they simply help out people who contribute to their campaigns.

Gifts, donations, and hospitality should not be considered as an act of bribery. Evidence of bribery also includes proof that an individual intended to influence the discharging of someone’s duties. By acting with integrity a giver will be protected by the law. The Honours (Prevention of Abuses) Act 1925 of the United Kingdom’s parliament says “If any person accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, or for any purpose, any gift, money or valuable consideration as an inducement or reward for procuring or assisting or endeavoring to procure the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant, he shall be guilty of a misdemeanor.”

Compared to bribes, gifts and campaign donations are one-sided; they are given without any reclaim. Of course, we cannot deny the fact that often gifts are given in return for some service rendered. An example would be, securing a tender, future employment, sexual favors, child school registration, and even gaining a vote. In 2018, French prosecutors’ inquiry has been unable to trace the origin of funding worth 144,000 Euro considered as an illegal act to finance Emmanuel Macron’s presidential campaign. The donor acted in a position of assistance and expected nothing in return thus Macron couldn’t be prosecuted. It is well known that if the evidence of authenticity is lacking, the judge will simply dismiss the evidence as irrelevant. The recipient must be found to be directly affected by the gift to be found guilty. Because the relationship is not direct enough, President Macron’s campaign donations do not constitute bribery.

One way or the other, we all have offered or received gifts for a service rendered or a product sold. It is almost impossible to find people who have neither given nor accept any kind of gifts or donations. Parents motivate their children with gifts to perform chores in the house, prosecutors offer witness inducements to speed up the case, politicians build infrastructures with their own money in order to be elected, and parents pay lunch to the school administrators to have their children admitted in a better school. In these examples, opportunities of offering gifts were necessary and should not be considered as bribery.

Gifts giving happen everywhere in our lives. Children are raised by parents that offer gifts to others, so the most outcome is to expect them to replicate the same attitude. There is at least a major difference between ‘exchanging’ goods or services through an agreement and donate something gratuitously. Similarly, there is a major conceptual difference between bribes and gifts.

In a democratic system, the government is controlled by the people, and in which people have the right to exercise that control equally. However, not all political parties have equal access to finance their activities. These days, election campaigns make it a challenge for politicians without access to large funds to compete on the same level as those who are well-financed. So the easiest option left is to receive donations, and sometimes, accepting these donations may be a proper start of a business relationship between the party and the donors. A gift that benefits entirely an organization will lessen the perception that the gift was intended to influence the action of a single member.

Government and congress should empower public agents with the politically productive policy goal of good governance that would make public agents accountable for the authority, resources, and information they possess. This in return, will make them genuinely worthy of public trust, confidence, and respect. Nikolas Kirby, a Director of the Building Integrity Programme within the Blavatnik School of Government said, “In the most obvious case, corporations may initiate or engage through forms of individual corruption with individual public officers: bribes, nepotism, fraud, and so forth. These activities, at least if they become known or suspected, undermine any assumption that the power entrusted to such officers is wielded in the public interest.” The main reason people agree that gifts and campaign donations are bribes is the controversial issue of putting pressure on the recipient to extend more than just goodwill treatment to the giver. Therefore, it is incumbent upon businesses to comply with government laws on gifts and donations giving since the aim of offering gifts is an easy way to express thoughtfulness, appreciation, and love.

Part 3

A small group of people fall somewhere in between the two viewpoints. They feel that gifts and campaign contributions are not always considered bribery but can turn into bribes depending on the intent of the giver. For example, gifts that are clearly of a promotional nature such as calendars, T-shirts, diaries, pencils and mugs are acceptable for enterprises because they are items of insignificant value. However, the safest way to avoid prosecution is not to accept anything of value from a vendor or supplier.

Even though gifts and campaign financing are daylight accepted activities, they become a bribe when the corrupter seeks to achieve a specific goal. A student giving a teacher a valuable present to appreciate the work he put in to give him the best education, and doing it in a public ceremony, would not be accused of bribery. That same student giving the same teacher the same gift in his office after failing his subject would be charged with bribery. While donations to schools, churches, nonprofits or political organizations are not explicitly prohibited, they constitute bribery when they are made for the purpose of achieving a business. For example, offering scholarships, business opportunities, or employment to a public official or a relative or family member of a public official for the purpose of obtaining a business advantage would be outside the law. Since a gift is a value given without the expectation of return, any donation given during a campaign for the simple reason of assisting a political party should not be considered as a bribe. The officer holder should continue acting in the trust of his voters.

Vincent Jones of the Center of Public Management and Governance of the University of Johannesburg said “Gift-giving and the acceptance of gifts is a controversial issue. The bestowal of a gift may generate a negative public perception of corrupt behavior. If proper preventative controls are implemented, and the transparency of the process enhanced, it would assist in reducing the risk of perceived corruption when gifts are accepted.” The difference between legitimate entertainment and bribery lies in the intention with which the entertainment is provided; and that is something to be inferred from all the circumstances. This includes as well the relationship between the giver and the recipient, their respective financial and social positions, and the nature and value of the entertainment.

Researchers have attempted to distinguish these two concepts by focusing on legal aspects, moral and cultural considerations, and the motivation for giving. Gift-giving is a behavior that shows respect to another person and strengthens relationships, whereas bribery occurs if the receiver is invited to pursue personal interests at the expense of the legitimate aims and objectives of their employer. Similarly, if a gift is given with the intention to influence the receiver, then it is a bribe. Judy Nadler and Miriam Schulamn of the Markkula Center for Applied Ethics advised that “because it is often impossible to determine the expectation of the giver, all federal, state, and local officials, both elected and appointed, are governed by rules restricting gifts.” They suggested that certain amount of gifts be disallowed and on others occasions, they must simply be reported. These rules can vary significantly from locality to locality, indicating disparities in each legislature's understanding of when a gift becomes a bribe. To avoid misunderstanding, upon receipt, the staff consults a list of acceptable charities and makes the donation. Unfortunately, as bribery is illegal, a lack of understanding of the distinction between gifting and bribery can have serious consequences.

Conclusion

My understanding of this essay is that the law should be made clear on the merits of the case, not based on whether or not the decision-maker will be influenced from the moment of receiving a gift. As the boundaries of what constitutes a gift are nearly limitless, organizations must adopt rigid and comprehensive compliance policies to ensure all members of the organization are aware of the far-reaching scope of the offense.

One program that helps address the unsolicited gift dilemma is in effect at the Institute for Local Government USA. The Institute encourages local agencies to consider the ethical implications and adopt a clear policy. For those cities deciding to ban gifts, it offers a sample sign, which could be posted in prominent places: "It has been our pleasure to serve you throughout the year and your faith in our integrity is important to us. Please know that as part of our commitment to public trust and ethics, we have a strict no-gifts policy. Your support in helping us to honor this policy will be greatly appreciated." It is therefore wise to ask whether the receiver will be influenced by the giver’s motivation to undermine the integrity of a wealthy system or just enjoy the sincere gift. Only a clear boundary of gift-giving can protect a wealthy governance.

Works cited

Dayen, David. Congress Makes Corruption Too Easy. The New Republic, 8 Aug. 2018,

https://newrepublic.com/article/150557/congress-makes-corruption-easy. Accessed 12 May 2021

Henning, Peter. It’s getting harder to prosecute politicians. The Conversion, 2018,

https://www.salon.com/2018/02/20/it-is-getting-harder-to-prosecute-politicians-for-corruption_partner/. Accessed 12 May 2021

Karan, Mahajan. “State Capture”: How the Gupta brothers hijacked South Africa using bribes instead of bullets. Vanity Fair Hive, 2019,

https://www.vanityfair.com/news/2019/03/how-the-gupta-brothers-hijacked-south-africa-corruption-bribes. Accessed 9 June 2021

Simon C, Richard L. French prosecutors opened an investigation into some of the funds that helped finance Emmanuel Macron's presidential campaign. Insider, 20 Nov. 2018,

https://www.businessinsider.com/r-french-prosecutor-investigates-some-of-macrons-campaign-finances-2018-11?IR=T. Accessed 9 June 2021

Nikolas K, Andrew K (2019). “Corporations, business and social trust.”

British Council, pp. 13

Susan Rose-Ackerman (1999). “Corruption and Government.”

International Peacekeeping pp. 92

UK Legislation. Honours (Prevention of Abuses) Act 1925. OGL, 7 August 1925

https://www.legislation.gov.uk/ukpga/Geo5/15-16/72. Accessed 13 June 2021

N. Kirby. Corporations Business and Social. British Council. 2019

https://www.britishcouncil.org/sites/default/files/corporations_business_and_social_trust_british_council_web_final.pdf. Accessed 13 June 2013

Nadler J, Schulman M. Gifts and Bribes. Markkula Center for Applied Ethics. 2006.

https://www.scu.edu/government-ethics/resources/what-is-government-ethics/gifts-and-bribes/. Accessed 23 June 2021

Jones V, Bexuidemhout H. Center of Public Management and Governance. 2006