CLA News / Towards a Right to Freedom from Corruption: Emerging Jurisprudential Trends By Prosper Simbarashe Maguchu
Introduction
The 9th of December marks International Anti-Corruption Day, followed by International Human Rights Day on the 10th. This close pairing strongly suggests the deep interconnection between corruption and human rights, a link that has led scholars and practitioners on a journey to forge the nexus between corruption and human rights violations. I have long argued for this connection, and a decade and half ago the idea was often dismissed as laughable or merely wishful thinking. However, an interesting trend has emerged in some domestic courts, that are now recognising a distinguishable right to be free of corruption.
Scholars and practitioners have advanced three differing approaches to the corruption–human rights nexus, each characterised by its own focus and scope: first, from a humble beginning, corruption was seen simply as an issue in human rights, framed within the politically cautious UN mechanisms; second, through a human-rights-based approach that has been articulated differently by different scholar but basically sees particular acts of corruption as violations of human rights; and third, by the minority who advocate for an explicit freedom from corruption.
We have now come close to the practical limits of what can be achieved through the, largely popular albeit sometimes poorly articulated and understood human rights based approach to corruption. The growing recognition of a right to be free from corruption only underscores this reality. States can no longer rely on soft-law approaches or loosely framed commitments while corruption continues to erode institutions, distort justice systems, and undermine the enjoyment of fundamental rights. It is time for governments to lift their heads from the sand, confront the problem squarely, and accept the idea of a new human right that is freedom from corruption.
This perspective allows attention to shift to both the causes and the harms of corruption, without requiring proof of a direct causal connection between a specific corrupt act and a specific harm, which is often an impossible task where powerful actors in grand corruption cases.
Origins of the right to freedom from corruption
The idea of freedom from corruption is not new. In fact, as early as 2012, scholars Andrew and Mathew were the first to mention this right in their work Freedom From Official Corruption as a Human Right at the World Forum on Governance (WFG), and later Andrew Spalding presented their joint research at the 2014 WFG, convened by the Brookings Institution and the Czech nonprofit Zaostřeno in Prague. Andrew and Mathew trace the right to be free of official corruption to the foundational rights theory of John Locke. They also point to cross-cultural intellectual traditions, for instance Chinese Confucianism and Islamic jurisprudence which regard freedom from corruption as a first principle of governance.
Freedom from corruption and other human rights
Though this freedom is not yet formally styled as a human right, philosophy and history have long produced its functional equivalent: a fundamental obligation that governments owe to every individual by virtue of being human—an obligation that overrides other policy considerations, and whose violation constitutes a grave affront to justice. It also reinforces the idea that the vigorous enforcement of anti-corruption measures is essential for the fulfilment of other human rights.
Freedom from corruption can also be linked to the fundamental human rights principle of non-discrimination. The complex relationship between corruption and discrimination is only now beginning to receive serious academic attention, yet what is already clear is that many forms of corruption are inherently discriminatory.
The right can also be linked to other emerging human rights. The right to development, for example, now includes a dedicated section on anti-corruption. The ongoing negotiations on the Business and Human Rights Treaty offer another natural connection, as some of the most powerful and sophisticated actors in the world today are companies rather than governments. Corruption is often far more difficult for businesses to avoid than complicity in traditional human rights abuses, as noted in the Human Rights Watch World Report (2013), making freedom from corruption a natural companion right in this area.
The UN’s work on a Framework Convention on International Tax Cooperation provides yet another link. The developing sections of this treaty focus on illicit financial flows, tax avoidance, and tax evasion—areas deeply shaped by corruption and systems designed to conceal it. These efforts would be strongly complemented by the recognition of a right to be free from corruption.
What added value
The added value of recognising a right to freedom from corruption lies in its ability to provide a comprehensive and human-centred framework for strengthening integrity systems at the national and international levels. Much like the proposed right to development R2D, this right integrates human rights principles with anti-corruption norms and practice, ensuring that efforts to prevent and combat corruption support the full realisation of all human rights. It requires active, free and meaningful participation of individuals and communities in public affairs, promotes transparency and accountability across public institutions, and reinforces both the domestic and international responsibilities of States under instruments such as the UNCAC to create an enabling environment where corruption cannot thrive.
Framing freedom from corruption as a right also demands equitable and inclusive governance, supports social justice, and confronts the systemic and structural conditions that allow corruption to flourish—including opaque decision-making, discriminatory practices, and the misuse of public resources. By strengthening integrity, access to information, and public oversight, this right enhances the protection of the most marginalised, promotes international cooperation and mutual assistance, and contributes to sustainable development, peace and friendly relations between States. It also reinforces global efforts to combat illicit financial flows and advance international asset recovery, both of which are central to dismantling the financial systems that sustain corruption.
Quo vadis?
An emerging body of jurisprudence on the right to freedom from corruption is beginning to take shape. Courts—especially in the developing world—are increasingly recognising a distinct right to live free of corruption, dispelling arguments that corruption is culturally specific. A recent report has identified six illustrative case studies from both common law and civil law systems: Argentina, El Salvador, Costa Rica, Mexico, South Africa and Sri Lanka. While this piece focuses primarily on developments within Commonwealth countries, references to selected civil law examples are included for comparison.
South Africa Its Constitution, which strongly incorporates human rights principles, requires the domestic application of UNCAC, and the courts have held that this creates a duty on the state to establish efficient and independent anti-corruption mechanisms. The case arose when Parliament decided to disband the priority crimes and anti-corruption unit and move its functions to the police, placing it closer to the executive. The complainant argued that both UNCAC and the state’s human rights obligations required greater institutional independence. The majority agreed, finding that the constitutional duty to “respect, protect, promote and fulfil” rights necessarily requires the state to create effective anti-corruption bodies, and that independence is required by both UNCAC and human rights law. Although the court did not specify who exactly holds this implied right, it recognised that by imposing duties on the state, there must be corresponding rights-holders—whether individuals, public-interest organisations, or society as a whole.
Sri-Lanka: Sri Lanka offers another compelling example of courts recognising duties that align closely with a right to be free from corruption. Drawing on the public trust doctrine and the constitutional guarantee of equal protection, the Supreme Court has repeatedly held that state officials must use public resources for the benefit of the people, not for private gain. In a landmark 2008 case, the court allowed a public interest organisation to challenge the corrupt sale of land taken for public purposes but diverted to a private golf course, affirming that any member of the public may seek redress where collective rights are affected. The court found the transaction violated both the public trust doctrine and equality under the law, ordered the deal undone, and required compensation. This doctrine later formed the basis for the 2022 judgment holding former national leaders responsible for economic policies that caused widespread hardship, ruling that their actions breached the public trust, equal protection, and fundamental rights to expression and information. Although the court did not explicitly articulate a right to be free from corruption, its reasoning establishes a clear constitutional duty on officials to prevent and avoid corrupt acts, without the onerous burden of proof required in criminal proceedings.
Comparative with the Civil law systems
Beyond the Commonwealth, several civil law jurisdictions have also begun recognising principles that echo a right to be free from corruption. In Costa Rica, the Constitutional Court has interpreted the constitutional right to a healthy environment as including a right to an environment free from corruption, acknowledging the broad social harm corruption causes. Mexico has developed a mixed but evolving practice, with its Constitution and victims’ law granting individuals and NGOs the ability to participate in criminal and administrative proceedings. While courts have been cautious about allowing collective representation in criminal cases, some judgments now link corruption to fundamental rights such as transparency, honour and accountability in the use of public resources. El Salvador provides an even clearer example, applying UNCAC domestically on the basis that it is a human rights treaty, and upholding civil forfeiture laws by expressly recognising the human rights–corruption nexus. In Argentina, the courts have granted civil society organisations standing to act in cases involving serious human rights violations, treating corruption as both a violation of other rights and a rights violation in itself. Together, these cases show a growing willingness across legal traditions to view corruption through a human rights lens.
Conclusion
The path from here to there is reasonably clear. Common law precedent from foreign jurisdictions is already highly persuasive in other states, and common law, not unlike civil law, recognise the space for judge-made law to evolve. The real question is whether courts in other jurisdictions will find the courage to take steps in the right direction, and whether powerful politicians will stand in their way or act as partners. At the same time, courts need to clarify the contours of such a right and how it should operate in practice. After all, every human right was once only an idea. These remain important areas for further research and reflection.
Author: Prosper Simbarashe Maguchu
