Anti corruption agencies - purpose, pitfalls, success factors


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Creating an effective anti-corruption institution

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Anti corruption agencies - purpose, pitfalls, success factors

  1. 1. ANTICORRUPTION AGENCIES(ACAs)OFFICE OF DEMOCRACY AND GOVERNANCEANTICORRUPTION PROGRAM BRIEFJUNE 2006This publication was produced for review by the United States Agency for International Development. It was prepared by PatrickMeagher and Caryn Voland from the IRIS Center at the University of Maryland.
  2. 2. Anticorruption Agencies (ACAs)ANTICORRUPTION PROGRAM BRIEFJUNE 2006DISCLAIMERThe author’s views expressed in this publication do not necessarily reflect the views of the United StatesAgency for International Development or the United States Government.
  3. 3. CONTENTSIntroduction ................................................................................................................................. 4 Definitions .................................................................................................................................... 5 Purpose ........................................................................................................................................ 5 Pitfalls ........................................................................................................................................... 7 Critical Success Factors ............................................................................................................. 8 Performance Indicators ........................................................................................................... 14 Donor Resources ....................................................................................................................... 15 Programming Options .............................................................................................................. 15 Questions Around Assessing Potential Programming Options ............................................ 16 Appendices............................................................................................................................... 20 Endnotes .................................................................................................................................... 27 Resources .................................................................................................................................. 29 Web Resources ......................................................................................................................... 30 USAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 3
  4. 4. INTRODUCTIONSince the 1990s, more than 30 countries have established some form of anticorruption agency (ACA) orcommission as a key tactic in their efforts to fight corruption. USAID Missions and other international donorsare faced with many questions as they provide advice and assistance to host country governments on theirefforts to combat corruption. This program brief is intended to assist DG Officers by outlining the criticalquestions around the establishment and workings of a host country’s ACA. The note also provides substantiveinput on how the answers to those questions may affect the effectiveness of donor support for an ACA.Some of the general questions that need to be answered before moving forward with any programming effortsare:Preconditions and evidence of political will: • Is there political will in the executive and legislative branches for fighting corruption? Have political parties prioritized corruption as a major platform? • What is the government’s main purpose and motivation behind establishing an ACA?Legal, institutional, and social environment, and the ACA’s characteristics and structure: • What is the environment in which the ACA will have to function? Is there a robust civil society that can assist the ACA and act as a watchdog in the fight against corruption? Is there an independent, functioning judiciary and rule of law? • How much authority, and which specific powers, should the ACA have? • Is the financing of the ACA sufficient and independent enough from the executive and legislative branches to ensure continuation of high level investigations if they occur? • How big should the agency be? What should be its range of responsibilities?Measures of success: • What should citizens expect of such an agency, and how will they know whether it has been successful? • How will the agency add value? Are ACAs counterproductive in some settings? • When should donors support an ACA? • What kind of support should donors provide? • What other institutions might carry out these functions?In addressing these questions and offering insights based on best and worst practices, it is the aim of thisProgram Note to provide DG Officers with the tools to more fully and strategically assess ACAs as an area ofpotential program support.USAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 4
  5. 5. be that, unlike existing agencies ofDEFINITIONS oversight and enforcement, the ACA:All countries have some institutions andprocedures that engage in the prevention, • Will not itself be tainted by corruptiondetection, or punishment of corruption – or political intrusion;from prosecutors to auditors to civil • Will resolve coordination problemsservice commissions. An ACA is defined among multiple agencies; andhere as a separate, permanent • Will centralize all necessary informationgovernment agency whose primary and intelligence about corruption andfunction is to provide centralized assert leadership in the anticorruptionleadership in core areas of anti- effort.corruption activity. These areas mayinclude: policy analysis and technical This suggests that the main expectedassistance in prevention, public outreach outcome of an ACA should be an overalland information, monitoring, investigation, improvement in the performance of theand prosecution. range of existing anticorruption functions within already established governmentACAs around the world most commonly institutions, not the addition of newperform six functions: activities or use of the ACA to substitute for functions that should be performed by1. Receiving and responding to complaints; other parts of government.2. Intelligence gathering, monitoring, and investigation;3. Prosecutions and administrative orders;4. Research, analysis, and technical PURPOSE assistance;5. Ethics policy guidance, compliance WHY DO GOVERNMENTS review, and scrutiny of asset ESTABLISH ACAS? declarations; and There are a variety of reasons why a6. Public information, education and government might decide to establish an outreach. ACA. Article 6 of the United Nations Convention Against Corruption requires1How well ACAs actually carry out these that each signatory establish a body (ortasks – and what impact this has on bodies) dedicated to the prevention ofcorrupt activities – depends on many corruption. While a real governmentfactors. These include: the political commitment to fighting corruption mightmandate of the ACA, the scope of its be the main driver, there are otherpowers and jurisdiction, its resource base motives to consider. One reason may be aand management, its structural setting and response to external pressure or a crisis.safeguards and external factors such as Particularly in these cases, ACAs maygeneral governance quality and represent an attempt at window dressingmacroeconomic stability. on the part of a government lacking realACAs can only take on a limited set of political will to fight corruption.these tasks – and other agencies often Understanding the underlying motivationshandle the same tasks anyway. is essential for understanding the opportunities for and challenges to anAn ACA’s main contributions should be effective ACA. These include:synergy, coordination, concentratedpower and autonomy. Thus, the policy Proactive deterrence with real politicalrationale for establishing an ACA would will: In some cases, government is seriously committed to reducingUSAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 5
  6. 6. corruption. This could be the case where the situation may demand a morethe leadership has a strong interest in powerful independent commission.checking corruption among subordinates,governing coalition partners, and other Window dressing is the more likelydomestic and external actors (e.g. response in cases where politicalindependent agencies and opposition leadership has a secure hold on powerlegislators). It could also be a result of a for the long term (e.g. a dominant partycredibility challenge or some other strong or authoritarian regime), or facesinterest in combating corruption (e.g. electoral pressure and potential loss ofpersonal values, a desire to strengthen its office in the near term. Leaders mayhand vis-à-vis political opponents, or want to avoid the possibility that theeconomic concerns, such as attracting ACA would take action against them.foreign direct investment or trade). They may prefer a weak or captiveSetting up an ACA with adequate powers, agency that would do their bidding. Ifresources and high-level backing can there is a possibility of losing the nextcreate a credible threat of exposure and election, the ruling party might not favorpunishment to offenders. a politically subordinate agency since its political masters might change in the nearPolitical response to pressure or a term. The best insurance would then becrisis: An incumbent regime may face a completely toothless ACA.pressures generated by a scandal or bynegative public opinion of corruption in Witch Hunts: While ACAs are not likelygovernment. Domestic pressures might established with this as their statedcome from opposition parties, social purpose, once created, they are oftenmovements, elites such as big business manipulated by the ruling party to attackowners, or the military. External and eliminate members of the oppositionpressures may arise from foreign or to punish members of their own partyinvestors, powerful trading partners, the who are perceived as having stepped outinternational financial institutions or of donors calling for reform. Other power dynamics may also be inFrequently, new leadership, having play. Alternation of parties in powercampaigned on an anticorruption might not equal substantive changes inplatform, feels pressure to make good on leadership in cases where the parties arecampaign promises. Any of these personal vehicles of members who allpressures may induce the government to belong to the same elite. Another powercreate an ACA to demonstrate its dynamic could be that the executive andcommitment to fighting corruption. the parliament are under the control ofThe regime’s response will vary directly different parties. Also, elites themselveswith the depth of the challenge. If the may be fragmented. All of these scenariospressure is coming from marginal actors can influence what kind of ACA a(e.g., grassroots groups or donor government will propose. ACAs respondgovernments without significant to mixed motivations –it is importantleverage), then it might be possible for to examine what these motivationsthe regime to do little more than may mean for the seriousness of reformwindow dressing. For example, it might commitment before any offer ofset up an ACA with few resources and cooperation is scope for independent action. On theother hand, if the challenge seriouslythreatens the regime’s hold on power,USAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 6
  7. 7. organized along patrimonial lines. In thisPITFALLS case, the distribution of illicit rents may be so systematized that it makes little senseWhen the System Itself is Corrupt to think of it as a weakness of the politicalA new ACA cannot cure or substitute for system – it is the political system. Evenbad governance. Rather, it can address where this is not the case, politics sets thecorrupt areas (even deeply corrupt ones) conditions in which an ACA operates.within a governance environment that isotherwise generally sound. ACAs can only In situations such as this, where politicssustain improvements in corruption in an do not ensure effective checks onenvironment in which other institutions government behavior, there is a seriousare also improving more generally. Short- risk of political manipulation andterm success is sometimes possible in a predation. This risk grows with thedysfunctional environment, but the tendency to concentrate powers in theseachievements are unlikely to outlive the agencies.incumbent regime.ACAs are usually not capable of Diversion of Resources andaddressing the larger forces driving Duplication of Effortssystemic corruption. Most obviously, The risk of diversion of resources andACAs cannot be effective in a situation duplication of efforts is especiallywhere essentially every important important in countries with fewerinstitution is compromised. Even if this is resources, less mature political systems,not the case, an ACA is essentially a and more powerful patronage networks.response to symptoms of a more ACAs sometimes skim off the ‘best andproblematic disease. Anticorruption brightest’ from core agencies, such as theagencies cannot themselves address Office of the Prosecutor, by offeringmacroeconomic distortions, the lack of higher salaries and prestige. This can leadcredible courts and watchdog agencies, to a marginalization of offices that shouldpolitical imbalances, regulatory incentives ideally be strengthened by donortoward bribery and rent-seeking and anticorruption initiatives. Effort andother large-scale “drivers” of corruption. resources are often wasted, and that, inThere is little likelihood that turn, can reinforce public cynicism.disciplined corruption-fighting Worse, the powers concentrated in anmachinery, such as an ACA, can ACA could be used for politicalmaterialize in a deeply corrupt repression and even serve as instrumentsenvironment. Promoters of ACAs need of corruption be aware of their limitations, andadjust expectations accordingly. Cooperation of Other Governance AgenciesWe should also bear in mind the political An ACA’s success depends onenvironment in which ACAs must cooperative relationships with otheroperate. Johnston suggests that “there is elements of government. In a sense, this isno way to attack the corruption problem a strength, since it forces anticorruptionwithout raising fundamentally political champions to achieve strategic consensusquestions about the ways people – both and to commit to concrete forms ofpublic and private – pursue and use cooperation before moving forward.power, and about the people and Unfortunately, this is rarely the case, andstandards to which they should be held cooperation often breaks down even inaccountable.”2 This is most obvious cases where it was initially achieved. As awhere the state is weak and corruption is result, ACAs are regularly frustrated byUSAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 7
  8. 8. their inability to secure information, existence is all too easy; it is difficult andcooperation, and prosecutions. Without expensive to make them work.cooperation and “buy-in” from othergovernment agencies, ACA’s efforts mayprove to be fruitless. CRITICAL SUCCESS FACTORSGovernment Track Record The literature on ACAs provides someMost governments have laws on the suggestions about factors likely to yieldbooks that allow them to fight corruption success. These factors are described ineven in the absence of an ACA. If the further detail below and summarized ingovernment has demonstrated no use of Box 1.existing anticorruption articles, then it isnot obvious that an ACA would change Establishmentthis situation. One measurement of The success of an ACA depends on itspolitical will is the use of current being carefully situated from the startanticorruption laws. If the government is within a set of well-defined supportvigorously applying existing laws, and mechanisms. These include:serious problems still remain, then thisdemonstrates the need for a more • A comprehensive anticorruptionsophisticated approach through an ACA. strategy including more parts ofThe ACA can emphasize the need for government than just the ACA;coordination and also focus attention onthose areas that are not performing. • Careful planning and performanceOtherwise, in the absence of this measurement;government track record, the ACA may • Independence;be an act of window dressing. • Realistic expectations; andLikelihood of Success • Strong enough political backingProgram designers need to keep in mind (across class/party) to make itthe limited applicability of other countries’ effective regardless of (politicalsuccess stories. As experiments in other and personal) consequences.countries with the well-known modeldeveloped by Hong Kong’s Independent The “constitutional moment” ofCommission Against Corruption (ICAC) establishing an ACA is critically important.have shown, success in one country does This means capturing the momentumnot mean that the same blueprint will created by scandal and crisis, gainingproduce such positive results elsewhere consensus on a reasonably clear and(Country examples are provided in the realistic strategy, and mobilizing theappendices and throughout this resources to implement it. Hong Kongdocument). Many ACAs have started out and New South Wales are perhaps thein the most promising fashion, only to fall best examples of this approach.short for a host of reasons. Experiencesuggests that the majority of ACAs, which Cross-agency coordinationare numerous in the developing world, Also important in the establishment ofprobably do not achieve the results ACAs are cross-agency relationships.expected of them in combating corruption. Anticorruption agencies depend to a largeSome may indeed be actively harmful. In degree on cooperation from sistersum, calling anticorruption agencies into agencies. Securing this cooperation means either positioning the ACA at a point ofUSAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 8
  9. 9. maximum influence or providing it other anticorruption policy (foregoing atools for encouraging – or extracting – comprehensive mandate, as inhelp. For example, Hong Kong and Korea).Singapore imposed stringent legal dutiesof cooperation on government and the • Its jurisdiction could be mainly It should be noted thatpublic. The Malaysian ACA follows a prospective (by limiting its many of the examplessimilar pattern and has benefited from concern with past cases, as in for critical successboth government and civic cooperation. Hong Kong). factors refer to theFor example, some 16 Deputy Public highly successful Hong • It could choose cases selectively Kong, Singapore, andProsecutors are assigned by the Malaysian based on pre-defined standards (asAttorney General’s office to work on New South Wales in Argentina). models. Given the factACA cases. Additionally, the ACA and the these models havepolice recently established a Joint • It could deal only with the probity only limited applicabilityCommittee to Combat Corruption, which and reputation of the public and likelihood ofhelps expedite investigations, disciplinary service (as does the U.S. Office of success in environmentsactions, and the sourcing of information. Government Ethics). significantly differentIn Australia, the New South Wales from those in which(NSW) ICAC works with other agencies The Korea Independent Commission they operate, adoptionto resolve problems that diminish Against Corruption (KICAC) is an of these models shouldeffectiveness. In other cases, apparently example of an ACA with a well-defined be viewed with carefulwell-positioned agencies suffer from a lack focus. It focuses on prevention by attention to the countryof coordination across government. supporting improvement of laws and context. institutions for the prevention ofSome ACAs have had more difficulty, corruption, providing checks and balancesoften due to the failure by the agency’s between authorities in power, andproponents and the agency itself, to use implementing the whistleblowerthe urgency of reform to overcome protection and reward system.resistance to change. In Argentina, the Many ACAs haveAnticorruption Office (ACO) has had this The New South Wales (NSW) ICAC in started out in thekind of experience. Its relationship with Australia takes a “test case” approach, most promisingthe courts has been poor. In 49 cases, the choosing to pursue only those allegations fashion, only to fallACO had to defend its right to appear in (and only those institutional reform short for a host ofthe lower courts, despite (on two studies) that will result in high-impact reasons. Experienceoccasions) the federal appeals courts’ action. The NSW ICAC retains the suggests that the authority to prioritize complaints - and to majority of ACAs,recognition of the ACO’s right to do so. refuse any explanations as to why a which are numerous inThis is a reflection of limitations due to the developing world,lack of political cohesion within some complaint was not pursued - if it deems this necessary for security and probably do notgovernments. achieve the results confidentiality purposes. It accepts “only expected of them in matters with the potential to expose combating corruption.Focus significant and/or systemic corruption or Some may indeed beIn order to be effective, an ACA needs to which otherwise involve matters of actively harmful. Inbe strategic in defining its focus. No significant public interest….”4 sum, callingagency can cope with an unlimited anticorruption agenciesmandate; choices must be made. The Hong Kong ICAC has an Assessment into existence is all tooExperience suggests the following Panel that makes the initial determination easy; it is difficultalternatives: as to whether a complaint is pursuable, and expensive to and then refers hard cases (e.g. pursuable make them work. • An agency could focus on complaints that would require substantial prevention and on monitoring resources) to its Operations Management government implementation of Committee for decision.USAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 9
  10. 10. Argentina’s ACO offers another example,using explicit social, institutional, andeconomic criteria for its selection BOX 1. Overview of Factors Cited in ACA Successes3decisions. Selectivity of focus is helpful in Establishment: embedded in a comprehensive anticorruptionensuring leadership, coordination, and strategy, careful planning and performance measurement, realisticattention to the anticorruption effort. expectations, strong enough political backing (across class/ party) to make it effective regardless of (political and personal) consequences.An ACA needs the ability to choose a Cross-agency coordination: success depends to a large degreeprogression of targets over time in on cooperation from sister agencies. Securing this cooperationorder to establish legitimacy through means either positioning the ACA at a point of maximum influence“quick wins,” and to avoid high-level or providing it other tools for encouraging or extracting help.battles until such time as they can be Focus: on prevention and monitoring government implementationwon. This strategic perspective also helps of AC policy (vs. comprehensive mandate), mainly prospective (onlyavoid fruitless battles (e.g., old cases or limited concern with past cases), case selectivity based on clear standards, emphasis on probity and reputation of public service, de-small infractions) and sequences emphasize investigations and prosecutions.interventions in accord with broaderrestructuring. However, where a selective Accountability: legal standards, judicial review, public complaints and oversight, answers to all branches of government and the public,approach is chosen, the ACA must have a size kept to a minimum, no donor overload, precise andstrong ability to justify the choices of comprehensive expenditure accountability.cases, as well as capable alternative Independence: placement and reporting responsibility of agencyinstitutions to pursue cases on referral. ensures independence, appointment/removal procedures for topThe selective approach can work only in officials ensures independence, absence of day-to-day politicalan environment where the ACA is not interference, direct role for public stakeholders, fiscal/budgetaryvulnerable to charges of partiality. Further, autonomy (See Australia’s New South Wales Commission for a good example of independence and Tanzania’s Prevention ofimplementing a strategic focus depends Corruption Bureau for an example of weak independence).critically on the agency’s internal Powers: strong research and prevention capabilities, can accessmanagement capacities and on appropriate documents and witnesses, can freeze assets and seize passports, canexternal oversight. protect informants, can monitor income and assets, jurisdiction over chief of state, can propose administrative and legislative reforms.Another aspect of focus has to do withbreadth of jurisdiction. For example, an Staff: well-trained -- including sufficient numbers with highly specialized skills, well-compensated, subject to integrity reviews andACA may want to include the private quick removal, strong ethic of professionalism and integrity, highsector in its scope of authority. The issue determining the appropriate breadth of Other resources: sufficient funds, adequate facilities and assets, high-an ACA’s jurisdiction is one of synergy: level information sharing and coordination with other governmentfinding which activities are most efficiently bodies.and effectively dealt with together. It is a Enabling environment: macroeconomic stability and absence ofbalancing act. Private-sector behavior is crippling distortions, corruption may be deep but is not entrenchedcertainly a factor in corruption, but an across the whole system (i.e. some people and sectors are clean).ACA can become over-extended if its Complementary institutions: adequate laws and procedures,jurisdiction continues to expand beyond basic features of the rule of law including functioning courts, freewhat synergy would require – for and active media, NGOs/public interest groups, other capableexample, from bribery to various forms of institutions such as supreme audit and central bank.revenue fraud, money-laundering, etc. – Complementary legislation: Freedom of Information legislationand without the necessary increase in either exists or promoted by the government as a means toresources. In short, the definition of increase transparency and access to information. Penal and criminal procedure codes support the work of the ACA. The country hasan ACA’s jurisdiction is an signed regional and international treaties that allow for cross-borderimportant strategic decision that corruption investigation.needs to take into accountcapacities, relationships, andresources.USAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 10
  11. 11. Accountability and Independence It is important to ask who provides theExperience suggests that formal oversight of the ACA. Accountability canaccountability and formal independence be assessed in terms of the legal standardsare both somewhat overrated. While they to which it is held; if it is subject to judicialare desirable in their own right, they do review and recourse; if public complaintsnot appear to be a determining factor of are addressed appropriately; and if thean agency’s performance. There are ACA can be checked appropriately bysome interesting examples of ACAs other branches of government and by thehaving essentially no formal autonomy, public. Internal controls can ensure thatand yet seeming to operate expenditures are tracked. Finally, donorsindependently in practice. The Hong should consider the risk of “donorKong ICAC is the prime example, with its overload” and whether the enthusiasm toindependence of action guaranteed less by support an ACA will outstrip its capacitystructural autonomy than by external to use the resources responsibly.constituencies. Another example is theArgentine ACO, which is a special unit of Powersthe Ministry of Justice and Human Rights, The powers given to an ACA play aresponding directly to the Ministry and critical role in performance. A successfulultimately to the President of Argentina. It ACA should have strong research andhas no structural safeguards or guarantees prevention capabilities, along withof independence. Its members are political comprehensive investigatory authority.appointees under provisional contracts. The Hong Kong’s ICAC and Singapore’sHowever, experts suggest that its non- Corruption Practices Investigation Bureaupartisan staff and its effective work to date (CPIB) provide the model for this, havinghave enabled the ACO to shield itself powers to access documents andfrom political interference. witnesses, freeze assets and seizeOn the other hand, many formally passports, protect informants, monitorindependent agencies are nevertheless income and assets, and proposesubject to the political dictates of a administrative and legislative reforms.dominant executive, party, or clan. While ICAC and CPIB have authority both toplacement of the ACA in the office of the respond to complaints and to undertakechief of state may bolster its strength, this investigations on their own likely to compromise its independence Importantly, neither has the power toand weaken it. Thus, formal prosecute directly, but must refer findingsindependence, like formal dependence, to their justice authorities.can be overridden by political factors. It A necessary condition for successfuldoes appear, however, that an agency’s de investigations and prosecutions is havingfacto autonomy to operate in a coercive powers – provided the agencyprofessional and non-partisan manner has the actual ability to exercise theseincreases its prestige, hence its ability to powers in practice. The coercive powersmobilize political support and cooperation of many ACAs would probably befor its aims. In this case, the ACA can rejected as extreme in establishedbuild long-term credibility for its democracies. For example, Singapore’santicorruption mission– a virtual CPIB has both the regular powers of theimpossibility for politically manipulated or police as well as special powers.subordinated agencies. Accountability hasmuch the same effect. It also affords CPIB may, for example, examine bankobservers within and outside government accounts, enter and search the books ofthe opportunity to monitor the agency’s banks, and require explanations ofperformance and to propose corrections. “unexplained” or “disproportionate”USAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 11
  12. 12. wealth as well as certain asset transfers. StaffThe ability to employ heavy sanctionsstrengthens CPIB’s hand. These include ACAs depend on well-trained personnel,stiff penalties for offenses, legal duties to including sufficient numbers with highlyfurnish information, and stringent specialized skills. Staff should also be hiredprohibitions on obstruction or failure to based on merit, well-compensated, subjectcomply. Broad definitions of corruption, to integrity reviews and quick removal,attempts, abetting, and conspiracies in the and endowed with a strong ethic ofpenal law5 also contribute to an ACA’s professionalism. While one cannot specifyeffectiveness. At the same time there is a benchmark number of staff, due to thepotential for an ACA to overextend its variations in agency design and context, itauthority, and therefore there is a need is quite clear that success in fulfilling afor effective checks and balances. defined mission depends on matching the agency’s objectives with a sufficientIn the Philippines, the Ombudsman has complement of highly professional andadditional powers to those of the ICAC motivated employees. Combiningmodel. It has anticorruption compensation with accountability is a keyresponsibilities, but it also has the general requirement. Likewise, employees shouldfunction of a classical ombudsman to enjoy a level of tenure security andaddress injustice and maladministration. appropriate immunity from civil litigation.Commentators have suggested that the The selection and appointment of theprosecutorial role does not fit well with leadership of the ACA ideally should be athe ombudsman’s function as trusted responsibility shared among severalmediator.6 Additionally, the Ombudsman institutions.makes binding determinations of law inadministrative cases, and brings For example, the Hong Kong ICAC’s staffprosecutions against senior officials in the are recruited from government as well asspecial anticorruption court – the the private sector and appointed toSandiganbayan. contract terms of two to three years, renewable. Special qualifications, screeningMost ACAs benefit from the powers and procedures, and remuneration packagesimmunities of police officers. Other are in place, separate and distinct fromimportant powers and privileges, including the civil service system, to ensurelegal immunity and the power to protect recruitment on merit grounds. Thewitnesses and confidential information, employees are given a “gratuity” of 25are often included in the statutory powers percent of gross salary on the condition ofof ACAs. satisfactory performance at the end of their employment contracts.7 OtherResources – Staff and Budget countries have not been so successful,One often hears that the success or where, for example, economic conditionsfailure of ACAs hinges on the quantity of have made it impossible to adequatelyresources available. While having compensate, recruit, and retain highlyadequate resources is an important professional staff.consideration, it is no guarantee of The head of the ACA needs to havesuccess. Experience in Hong Kong and authority over the staff even if the staff isSingapore strongly suggests that budget appointed by government. This willand staff numbers alone may not be that diminish political influence from outsidecritical. In those instances, agencies with the ACA over the staff and furthervastly different resource bases achieved strengthen the ability of the ACA staff tocomparable levels of success. work based on merit standards. If staff areUSAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 12
  13. 13. not able to perform duties properly or exchange of information andcreate unnecessary obstacles to fulfilling resources.the mandate of the ACA, the head of theACA needs to have the authority to Successful ACAs do seem to operate inrelease them from duty. Additionally, environments characterized bychecks and balances on the performance effective laws, procedures, courts, andof the ACA head are necessary, with clear financial system governance -- andperformance indicators that, if not met, ACAs are not successful in the absencewill lead to reappointment for the of these factors. Additionally, media andposition. civic organizations have helped make a fundamentally open and cooperativeBudget approach to corruption control successful in Hong Kong and Australia and haveLarge budgets do not correspond closely likely been important to modest successeswith strong capability and success. Rather, achieved in other countries.budget needs depend on the ACA’smission. Several examples bear this out. Background conditionsHong Kong ($91 million and 1,300 staff)and Singapore ($3.2 million and 71 staff) Other positive environmental factorsprovide the starkest contrast, although would include:each is quite effective within its mandate. • Macroeconomic stability;Enabling Environment • Political stability;An obvious limitation on the utility of • Confidence that an attempt toACAs in many of the countries with donor challenge corruption would notpresence is the absence of conditions for lead to violence;success. Some of these conditions arediscussed below. • Public order;Complementary Institutions and • Absence of crippling distortionsConditions (such as widespread famine or conflict, recent genocide, largeCritical external factors include adequate populations of Internallylaws and procedures and basic features of Displaced Persons);the rule of law. The latter would include: • An environment where • Functioning courts; corruption is not entrenched in • Free and active media; the whole system (though it may be deep in a few sectors); and • Energetic community of NGOs and public interest groups; • Legislation and practice that supports freedom of expression • Other capable agencies of and decriminalizes defamation. restraint such as capable financial management authorities, supreme These positive conditions often are not audit institutions and central found in many of the poorest countries. banks; Poverty and economic crises undermined anticorruption initiatives in many • Freedom of Information Law; and countries, including Argentina, Tanzania, and Uganda. As important, corruption • Regional and global treaties that that touches virtually all of government provide for cross-border and the private sector makes itUSAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 13
  14. 14. extremely difficult for an anticorruptionprogram to gain traction; there are too PERFORMANCEmany opposed interests with the powerto undo it. This appears to be the case in INDICATORSIndia, the Philippines, Tanzania, and many How does one measure the performanceothers. Kaufmann, among others, and impact of an ACA? One approach isstresses the centrality of economic and to gauge the degree to which an ACApublic sector restructuring in determining has reduced corruption, using data fromthe overall strength of corruption drivers corruption surveys, along with cross-and anticorruption policies.8 Ultimately, country and international indicators anddonors must analyze and take into rankings. More nuanced approachesconsideration this kind of environment would draw on findings from studies on abefore deciding whether to support an variety of government activities includingACA.9 the efficiency of government expenditure and service provision, comparisonsPolitical Will across time in procurement and infrastructure costs, and even theIt is important to determine which groups incidence of civic initiatives againstand individuals and other influences within corruption (e.g., as reported in thethe political economy are driving (or press). However, it is almost impossibleobstructing) the efforts of an ACA. Not to identify causal links between ACAssurprisingly, one study finds political and these macro-level outcomes,leadership’s self-preservation to be the especially in light of the need to accountprimary motivating force behind for the influence of structural reforms andanticorruption campaigns10. Leaders’ other important factors.political insecurity determines thecharacter of the campaign. This means Thus, we should be wary of simplistictimid and superficial efforts led by assertions about any ACA’s impact onincumbents, as contrasted with the more corruption. Indeed, many agencies’rapid and intensive cleanups forced by missions are broadly defined in terms ofopposition or political change – with the reducing corruption or changing values –latter targeting high officials to a greater outcomes that are, at best, very hard toextent. measure. Measurement of results is only feasible where objectives areAnother study showed that elected concretely defined and reliable dataleaders set up ACAs and investigations as are available on agency outputs andinvestments in “integrity capital,” usually intermediate outcomes, such asin environments of growing public outrage successful prosecutions, moneysaround corruption.11 However, in an recovered, and preventiveexcess of zeal, they set up mechanisms recommendations adopted.with greater power and autonomy thanthey are willing to tolerate. This is The choice of indicators depends uponexemplified when anticorruption the type of support the donor isinvestigations focus on political leaders, providing. If, for example, the donor iswho then strive to undermine those supporting a specific function or task ofefforts and curtail the investigators’ the ACA, indicators should be related topowers. that function or task, and not to the ACA’s performance in general. Indicators should serve as benchmarks of the impact donor funds are designed to achieve, and resulting from inputs or activities theyUSAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 14
  15. 15. support. Indicators such as the passage of should consider strategic investmentsa law or regulation, or the number of that improve the technical capacity ofindividuals trained or articles published do the ACA but they should not be corenot demonstrate political impact. funders of an ACA. The governmentExamples of appropriate indicators must own the initiative and demonstrateinclude: political will by providing adequate resources for the ACA to carry out its• Percentage of cases investigated that mandate. are brought to judgment;• Percentage of complaints that PROGRAMMING resulted in administrative remedies; OPTIONS• Specific institutional changes in The following may be fruitful areas of donor cooperation with an existing ACA: response to complaints that result in greater transparency; COOPERATION AND• Percentage of requests for INFORMATION-SHARING IN A information that are granted (and PRIORITY DONOR SECTOR that are granted on appeal); and To the extent a donor has sectoral programs (e.g., healthcare, regulatory• Positive public opinion polls on the reform, financial services, energy, or performance of the ACA. utilities) that are affected by corruption, there are opportunities for a donor andDONOR RESOURCES an ACA to collaborate to improve performance in that sector. A donorUSAID has typically made relatively smallinvestments in support of ACAs. Funding could provide access to information onlevels range from $5,000 to $500,000 per sectoral governance practices, supportyear. Support has included providing capacity development, and fostermodest levels of technical assistance for relationships with key officials andspecific purposes, assisting with ACA relevant NGOs. At the same time, thedesign and recruitment of meritocratic donor’s programs would benefit from thestaff, drafting of relevant laws, sending ACA’s heightened scrutiny of the sector,staff on International Visitors’ programs, attention to corruption issues andand supporting broader capacity sanctions, and, perhaps, from institutionaldevelopment programs related to reforms aimed at preventing, technical assistance, andequipment. IMPROVED RESEARCHIn some cases, the decision to establish CAPACITY, DATA, ANDan ACA is donor driven. If donor INDICATORS ONfinancial commitments comprise the CORRUPTION AND ON ACAmajor portion of the ACA budget, there PERFORMANCEis a high risk that the initiative may not This is an area of weakness for manyhave real political backing and will anticorruption agencies. A donor couldconsume donor resources without support the design and implementation ofresults. At minimum, the ACA may not research projects on the patterns,be sustainable if provision for post-donor impacts, and trends of corruption, as wellfunding is not made in advance. Donors as efforts to combat it. A donor alsoUSAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 15
  16. 16. could provide advice on good practices in COMPLEMENTARYpublic management, developing FUNDING OF RELATEDperformance indicators, and setting up ANTICORRUPTIONsystems for collecting, verifying, and INSTITUTIONS ANDpublishing the data. This would FUNCTIONSpresumably spark interest both withingovernment (advertising their A donor may choose to support any ofanticorruption efforts) and in civil society the other institutions and functions(enhanced oversight of the ACA). This discussed above which contribute to thewould also help ACA management to enabling environment or the strength anddefine their objectives and to focus on efficacy of the ACA itself.meaningful performance targets.COOPERATION AND QUESTIONSMONITORING BY CIVILSOCIETY GROUPS AROUND ASSESSINGA donor could bring civil society partners POTENTIALand the ACA together to help create ordeepen a framework for interaction, PROGRAMMINGincluding mutual support andindependent monitoring. NGO advisory OPTIONScommittees along the lines followed inHong Kong could play a constructive role DOES THE ACA’S CAPACITYif carefully structured, focused, and INFLUENCE WHETHER Aappointed. DONOR SHOULD ENGAGE? If the host country has a high-performing ACA, it might be a worthy partner inTECHNICAL ASSISTANCE joint activities – for exampleAND EXCHANGE anticorruption efforts in a high-priorityA donor may provide a wide range of donor sector such as health or energy.technical assistance focusing on the However, if the agency is already high-development of systems, staff training, performing, it probably does not needrecord keeping and analysis, and related material support and may be better offfunctions. Cooperation with credible without it, absent a showing of specificACAs in other countries may also have a need. At the other end of the spectrum,large payoff. Again, this assumes an underperforming ACA with nonecoordinated aid that is targeted to of the prerequisites of success isaddressing real constraints, as well as unlikely to make effective use ofbuilding in appropriate incentives. donor support or achieve expectedDonors can also direct technical results. This may seem obvious, butassistance to strengthening the enabling international donors are well-known forenvironment for the ACA through such pouring capacity-building resources intomeans as promulgating a Freedom of “weak” institutions that show littleInformation law, strengthening rule of prospect of becoming, and training for judges who willhandle corruption cases. The harder cases fall in between these extremes. Here it does not make sense to lay down guidelines in the abstract;USAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 16
  17. 17. however some things to bear in mind incentives and “ownership” of theinclude: program. Worse, funding from multiple donors came with inconsistent objectives• Most of the critical success factors and performance indicators. The donors cited above should be in place; worked within their programmatic• The agency should either have a “stovepipes,” failing to support necessary track record of partial success or back-office functions within the agencies, excellent prospects under new such as financial management, and paying inadequate attention to the ACAs’ leadership; and relationships with prosecutors and• The cooperation or support should others, whose cooperation they needed. be targeted to address a well- USAID can play a role in coordinating understood constraint. donors’ responses to an ACA or encourage a multi-lateral agency to playOn the last point, programmers should that role with USAID as an influentialbear in mind the kinds of constraints that participant.aid can address, such as technical andresource shortcomings. It may not beproductive to bolster an ACA when the WHAT KIND OF SUPPORTconditions of its establishment, its SHOULD DONORS PROVIDE?structural posture, and the relevantexternal factors are adverse. Further, Direct material support to an agencycooperation, and especially should be a last resort. A better option,material support, should be though admittedly difficult to implement,forthcoming only when the donor is would be a program involving cooperationsatisfied that the host country across agencies of government and civilgovernment has made a credible society, based on an agreed strategy or oncommitment of resources to the a consensus that one is to be developed.ACA’s mission. This guideline applies This would make the donor less of awith greater force to ACAs than to “patron” to a specific agency, and more ofother public institutions, given the a facilitator and advisor to engagedpotential use of an ACA as “window stakeholders. On this basis, a program candressing.” be designed to maximize cooperation and synergy for anticorruption objectives, rather than simply to bolster a “client”WHAT IF THERE ARE agency. Donor inputs and strategicMULTIPLE DONORS FUNDING objectives then can be translated into intermediate performance indicators ofAN ACA? the kind presented in the ACA data tableA recent review of donor support for in Appendix 2.ACAs points out a number of pitfalls.12In the five countries studied (all in sub-Saharan Africa), the international donors, WHAT INTERVENTIONShaving identified anticorruption as a top WOULD BE APPROPRIATEpriority, scrambled to find worthy WHEN A COUNTRY ISactivities and recipients to fund. One CONSIDERING THEresult was donor overload, with agencies ESTABLISHMENT OF AN ACA?receiving unsustainably large proportionsof their funding through aid. The results Donors would be well-advised to focus onare predictable: the imposition of donor existing governance institutions such aspriorities, thereby undermining agency courts, audit institutions, and regulatory bodies, unless a compelling case forUSAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 17
  18. 18. establishing an ACA has been made, and are prerequisites for the successfactors supporting likely success are of the ACA; andclearly in view. If such is the case, thensome start-up support might be justified. • Providing false legitimacy.IS AN ACA LIKELY TO BE WHAT IS THE BESTSUCCESSFUL IN THE APPROACH WHEN THECOUNTRY IN QUESTION? GOVERNMENT ALREADY HASIt is impossible to predict whether an AN ACA, OR WHEN A DONORACA will be successful, or even partially IS ALREADY POLITICALLYso. But the section on Enabling COMMITTED TO ITSEnvironment suggests some of the external SUPPORT?prerequisites, and the section on Critical In cases in which a donor is committed toSuccess Factors outlines some of the supporting the establishment of an ACA,characteristics of a successful model. or one already exists in the country, theHowever, the most important ingredient donor should seek to focus its support onfor success is undoubtedly political will. those aspects or activities of the ACAThere must be credible demonstration of that are most likely to have an impact,broad-based commitment to the fight rather than those which might be moreagainst corruption on the part of the visible, publicly palatable, or politicallygovernment before a donor should expedient. One approach would be toconsider supporting the institution. provide assistance in narrowing and defining the role and mandate of the ACA, as well as its structure. If these haveWHAT ARE THE RISKS already been established, emphasis mightASSOCIATED WITH best be put on the prevention andSUPPORTING AN ACA? education elements of the ACA’sObservers of Singapore, in particular, portfolio and should contribute towonder whether the anticorruption enhancing transparency and accountabilitybenefits of CPIB outweigh the risks posed of the ACA itself and the government inby its draconian powers and lack of general. The donor should also seek waystransparency. Other risks include: to support civil society/media involvement in the ACA through grants to NGOs and • Being ineffective; others. An ACA that is not transparent is unlikely to be a real tool to fight • Abuse of power; corruption. • Facilitating witch hunts-- targeting political opponents or the rich and powerful;13 ARE THERE ANY LEGISLATIVE BARS TO USAID ASSISTANCE • Increasing the perception of TO ACAS? corruption - surveys and cross- Section 660(a) of the Foreign Assistance country indices may infer a rise in Act of 1961, as amended (the FAA), corruption, as a result of prohibits the use of FAA funds to provide awareness-raising activities of the training or advice, or provide financial ACA; support, for police, prisons, or other law • Distracting authorities from the enforcement forces for any foreign core governance functions that government. USAID’s Office of General Counsel considers a law enforcementUSAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 18
  19. 19. force to be any entity that has authority gather information and investigateto carry out certain functions normally complex financial transactions. They areexercised by a law enforcement force, an important tool for identifying andsuch as authority to carry weapons, make investigating corruption cases as well asarrests, search private premises, money laundering and other financialinterrogate in private, supervise crimes, but they do not constitute inconfinement, and initiate prosecutions. As themselves a complete approach todescribed in this publication, ACAs may preventing, investigating, or prosecutingbe vested with some of these authorities. corruption.Even in such cases, there may beexceptions to the prohibition of FAA Government ethics programs should besection 660(a) available so that such ACAs seen as a refinement to, not a substitutemay receive USAID support. For for, comprehensive civil service reforms.example, beginning in FY 2005, and They can articulate goals but typically docontinued in FY 2006, foreign assistance not include enforcement or sanctions, andappropriations bills have included a thus they are not appropriate in anprovision that exempts assistance “…to environment of clientelistic publicfoster civilian police roles that support administration or extensive patronage.democratic governance…”.14 This Strengthening an existing independentauthority is available in FY 2007, pursuant audit authority or inspectorates withinto the Continuing Resolution. Thus, the individual ministries - along with the abilitydetermination of whether an ACA of the legislative branch to take action onconstitutes a law enforcement body and audits - can lead to effective results inwhether assistance could be provided stemming corruption. There are a host ofunder this or some other exemption other opportunities for minimizingshould be pursued with Mission corruption in many of the countriesmanagement and the cognizant Regional where donors are present. An ACALegal Advisor or with the Office of the should never be seen as a silver bullet.General Counsel.IS THERE A BETTERAPPROACH THAN AN ACA?WHAT ABOUT OMBUDSMAN,FINANCIAL INTELLIGENCEUNITS OR ETHICS OFFICES?The prosecution/enforcement element ofACAs is often the aspect of suchorganizations that makes them vulnerableto political manipulation. An Ombudsmanmay carry out the prevention andeducation functions of the ACA withoutengendering the strong resistance thatACAs with enforcement duties sometimesattract. Thus, if prevention and educationare the goal, an Ombudsman may be abetter approach.Financial Intelligence Units are highlyspecialized technical offices designed toUSAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 19
  20. 20. APPENDICESAPPENDIX 1: COUNTRY EXAMPLESUS/European Multi-Agency ModelIn examining the model of a strong, central anticorruption agency, it is useful first to consider the alternativewhich involves strengthening anticorruption capabilities across already-existing government agencies. This multi-agency approach (used by the U.S. and most of Western Europe, for example) involves putting measures intoplace to address gaps, weaknesses, and new opportunities for corruption. It usually combines traditional stateinstitutions with one or more specialized anticorruption units or agencies.South Africa’s application of this modelAn example of the multi-agency model used in a developing country context is South Africa, where the mandateis divided among the police, the prosecutor, the Auditor General, the SA Revenue Services, and the PublicService Commission. The Public Service Anticorruption Unit also has a coordinating function and is responsiblefor the development and implementation of the Public Service Anticorruption Strategy.The US integrity frameworkWithin the executive branch of the US government, a number of government offices exercise oversight overofficials’ behavior. Separate Offices of Inspector General operate within 58 departments and agencies to preventand detect waste, fraud, and abuse.15 Complementing this work, the Department of Justice and its investigativearm, the Federal Bureau of Investigation, investigate and prosecute corrupt acts. The Office of Special Counselconducts its own investigations and prosecution of prohibited personnel practices in the federal government,with an emphasis on protecting whistleblowers. This decentralized system of oversight distinguishes the U.S.from many countries where an anti-corruption agency carries out most of the oversight and investigativefunctions. While several federal agencies and state and local governments have Ombudsmen, there is no nationalOmbudsman covering the entire public sector in the U.S.Within each branch of government, other offices are charged with overseeing officials’ compliance withstandards of conduct and financial disclosure requirements. In the executive branch, the Office of GovernmentEthics oversees compliance with these provisions, operating through a Designated Agency Ethics Official postedwithin each of the 129 executive branch agencies.16 In the other branches of government, the Senate SelectCommittee on Ethics and the House Committee on Standards of Official Conduct monitor disclosure andstandards of conduct of members of Congress, and the Judicial Conference of the United States reviews theconduct of judges, judicial employees, and public defender employees. A fundamental key to the success of allthese arrangements is freedom of information, along with an active civil society capable of evaluating andpublicizing information that may indicate corrupt behavior.Hong Kong and Singapore – the Single-Agency ModelSingapore, with its Corruption Practices Investigation Bureau (CPIB), and especially Hong Kong, through theIndependent Commission Against Corruption (ICAC), have provided the standard for powerful, centralizedanticorruption agencies. Both Singapore (in the 1950s and ‘60s) and Hong Kong (in the 1970s) were faced withcrises of legitimacy that threatened investor confidence and political stability. Their response was to create anew kind of agency, untainted by association with corrupt elements, and equipped with the power to makeheadway against entrenched corruption. Importantly, this arrangement helps to centralize information andintelligence on corruption, and can reduce the coordination problems that arise when several ministries andagencies have authority in this field.USAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 20
  21. 21. Despite their similar origins and design, ICAC and CPIB take starkly different approaches to the implementationof a single-agency strategy. ICAC brings huge resources (approximate budget of $91 million and staff of 1300, asof 2000) to bear on a broadly defined set of tasks. These include following up all complaints and allegations“without fear or favor,” and linking these operations to the development of reforms and preventive measures,to an ambitious program of community outreach, and to citizen boards providing continuous monitoring andinput. In contrast, CPIB is a small, tightly-run unit. Its resources (approximate budget of $3.2 million, staffcomplement of 71, based on early 1990s estimates) are disproportionately small compared to those of ICAC.The investigative mandate of CPIB is about as broad as that of ICAC. However, CPIB is far more secretive. It isnot required to divulge budgets or operational details, to justify decisions, or to submit to citizen oversight.While both agencies benefit from sweeping investigatory powers and privileges, CPIB is less constrained both interms of procedure and substantive presumptions.Both agencies are considered highly successful. ICAC prosecuted and convicted a number of senior officials andpowerful businessmen, changing the country’s attitudes toward corruption through example, outreach, andeducation, and sought citizen input in both oversight and reporting of corruption cases. CPIB helped to create aclean administration in place of the former systemic corruption, and has exercised a deterrent function byinvestigating a number of “big fish,” including ministers, MPs, and senior directors of government agencies andcompanies.The single-agency model does not move all anticorruption functions into a single bureau – this would beimpossible under a democratic constitution. Instead, it places a number of key capabilities, responsibilities, andresources under one roof, thereby creating a powerful centralized agency able to lead a sweeping effort againstcorruption. This still requires the ACA’s interaction with other entities having jurisdiction in the field, notablycourts, prosecutors, and line ministries in areas likely to be affected by corruption, such as revenue and publicworks. By contrast, the multiple-agency approach is less ambitious. It avoids setting up a strong “lead” agency inthe anticorruption field, thus posing a lower risk than the single-agency approach of upsetting the balance andseparation of governmental powers but also imposing higher costs in terms of coordination and informationsharing.ACAs that follow the ICAC ModelThe Hong Kong ICAC model has proven enormously influential. The last two decades have seen the emergenceof scores, if not hundreds, of anticorruption agencies around the world. Of these, there are perhaps as many as30 to 40 at the national level that fit the ICAC profile of a strong, centralized agency, and more at sub-nationallevels. Among the most prominent examples are the following:17Argentina: The Anticorruption Office (Oficina Anti-Corrupcion, ACO) The Independent Commission Against Corruption (ICAC) of New South Wales The Directorate on Corruption and Economic Crime (DCEC) The Commission on Civic Control of Corruption (Comision de Control Civico de la Corrupcion orCCCC) Independent Commission Against Corruption (KICAC) The Anti Corruption Agency (Badan Pencegah Rasuah Malaysia, ACA) Philippines: The Ombudsman OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 21
  22. 22. Tanzania: The Prevention of Corruption Bureau (Taasisi ya KuzuiaRushwa, PCB) National Counter Corruption Commission (NCCC) The Inspector General of Government (IGG) Model of Accountability- Hong Kong’s ICAC and Australia’s NSW ICACThe Hong Kong ICAC sets the standard here. Accountability begins with strict responsibility of ICAC and seniorofficers to the Chief Executive (formerly the Governor), and of the agency to the legislature, which reviewsICAC’s annual reports and approves the agency budget as part of the general revenue. Further, a 1996amendment to the ICAC Ordinance strengthened the role of the judiciary in authorizing search warrants – tobring ICAC into compliance with Hong Kong’s 1991 Bill of Rights.18 The most famous of ICAC’s accountabilitymechanisms are the citizen oversight boards, known as Advisory Committees. These are appointed by theExecutive to review all of ICAC’s policies and functions, and must be chaired by private citizens. The OperationsReview Committee is arguably the most strategic, since it oversees the largest and most powerful department.The Committee does not have formal powers to compel the production of documents and information, butdoes have a straight line of responsibility to the Commissioner and the Executive. There is also a separate andindependent Complaints Committee, which reviews all complaints against the agency. An internal investigationand monitoring unit follows up on complaints.The legacy of the Hong Kong ICAC is clearest in Australia, where the New South Wales agency solicitscitizen oversight and input, and a major role is played by an Operations Review Committee, whosemembership includes private citizens. Also, the Freedom of Information Act applies, imposing a duty on theagency to disclose, and in some cases, publish its records. In addition, the NSW ICAC has a mechanism forhandling complaints against its staff. The most important departure from the Hong Kong model is the NSWICAC’s authority to hold investigatory hearings – and to hold them in public where appropriate. This form of“government in the sunshine” gives the general public the ability to oversee parts of ICAC’s operationsdirectly.An example of Independence- Australia’s New South Wales CommissionA good example of the benefits of independence guarantees is the case of Australia’s NSW ICAC. In formalterms, it is a government corporation with the powers of a standing committee – this separates it from cabinetministries and links it to parliament. The ICAC Commissioner is appointed by the NSW Governor (to a five-year non-renewable term), with the approval (and veto power) of the Parliamentary Joint Committee on theIndependent Commission Against Corruption. The Governor also appoints any Deputies. The NSW ICAC hasits own budget line from the NSW legislative appropriation. It reports and is accountable to the JointCommittee – and this accountability, like that of ICAC’s Hong Kong counterpart, clearly establishes itsindependence from the executive.A lack of independence- Tanzania’s Prevention of Corruption BureauA counterexample is the Tanzanian Prevention of Corruption Bureau (PCB), which was revitalized under theMkapa regime in the early 1990s. The PCB appears to have been well-positioned, but in fact suffers from poorinter-governmental coordination and a lack of effective independence. The agency is located at the pinnacle ofgovernment, in the President’s Office, and hence should be able to draw on the full power and prestige of thechief of state. This is buttressed by the existence in the President’s Office of the Good GovernanceCoordinating Unit, a body charged with ensuring coordinated government action on the anticorruption strategy,and with providing policy guidance to the PCB in accordance with that strategy. The Unit was established tosustain the momentum built in the mid-1990s by the Warioba Commission, President Mkapa’s anticorruptioncampaign platform, and the development of Tanzania’s first national anticorruption strategy. These factors haveUSAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 22
  23. 23. been enough to extract commitments of support from other relevant actors in government. Also, PCB’scollaboration with NGOs and the media has been significant. However, this apparent consensus did notnecessarily carry through into effective action against corruption. One explanatory factor is that other agenciesdo not have an express legal duty to cooperate with and facilitate the work of the PCB. In addition, PCB hasnever been given sufficient resources to carry out its mandate. The cooperation of the public also was slow incoming, due to public apathy, fear, and lack of awareness of PCB and its mission. Looming above all this has beenthe political equation. President Mkapa did not assume office as the head of the ruling party – that role, inactuality, still belonged to former President Julius Nyerere, who continued to command ruling party loyalistsuntil his death, and was known to oppose reforms that posed a threat to the party’s dominance. Even assumingthat the President continued to have the strongest possible interest in combating corruption, his actual powerto do so has been significantly constrained by this and other political factors.USAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 23
  24. 24. APPENDIX 2: PERFORMANCE MEASURESIt is important to distinguish between (a) the level of corruption in a given country or district, and (b) how wellcertain core anticorruption functions are performed. In principle, the two are related, but the latter is essentiallyan output measure. These output measures could be linked, with only a few realistic assumptions, to measuresof proximate impact or intermediate outcomes. Examples include the number of successful prosecutions, thenumber and quality of institutional reforms designed to combat corruption, and the intensity of anticorruptionsentiment and activity across society.Output measures from an ACA may not tell us much about the effectiveness of the agency. Therefore, oneapproach is to look at this data and to apply a qualitative sense of whether the agency and activities are well-targeted, and whether the outcomes are as beneficial as they could be. For example, simply looking at thenumbers of investigations started or completed does not tell anything about how such numbers correspond tothe overall level of corruption in a country, about the quality of the effort or the outcome of thoseinvestigations. Percentages of convictions may be instructive, but again, the number does not convey the qualityof the proceedings, nor the harshness or deterrent effect of penalties imposed. An example of an indicatorwhich may be more telling on its own is the success rate of implementation of an ACA’s recommendations.Some ACAs, such as Hong Kong’s ICAC, report benchmarks against which their performance can be measured.For example, they report raw numbers of cases and studies, case prosecution and conviction rates, andindicators of efficiency such as time lapses in complaint response and case disposition. ICAC also breaks out itsprosecution numbers by sector and by offense. On the other end of the spectrum, Singapore does not reportany results for its CPIB. Yet it is perceived to be very successful, because of its professionalism and the long-term impact of the overall anticorruption effort. Other data from selected ACAs are given in the table below.How well did the agencies reviewed here perform in terms of their policy mission and goals – and why? Here ishow the agencies listed in the table compare on performance in the six ACA task areas (numbers on an annualbasis, various years):Receive and respond to complaints: The Philippines had the largest intake in terms of raw numbers. However,on a per capita basis – and given the reported levels of corruption in the countries in the table below – thesenumbers are in effect quite low as compared to Hong Kong’s. New South Wales and Botswana had lower totals,but were still competitive on a per capita basis. Botswana’s total is especially remarkable, since it reports 74% ofcomplaints as having voluntarily identified themselves. Hong Kong is the only government reporting on itsefficiency in handling complaints.USAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 24
  25. 25. ASSESSING ACA RESULTSWhat does the data say about agency performance? We present a sample of performance data fromanticorruption agencies in the table below. **Though this data is not the most current, it demonstrates differences in the value of various measures and inperformance of various ACAs. Prevention, Ethics, Asset Agency/Indicator Cases, Investigations, Disposition Declaration, Information, Outreach 1,784 investigations startedARGENTINA 81% of investigations concludedACO (1999-2002) 9% decrease in unsolved cases 99% compliance rate by the civil 489 cases referred to the judicial system. 317 referred servants required to file a financial in 2001 disclosure statement 14% increase of cases under judicial investigation between 2000 and 2001 44 prosecutions, 20 cases dismissedAUSTRALIA NSW 4 prevention reports, 7 research 1,509 complaints with 2,058 allegations and 265ICAC (2000-2001) reports published recommendations for reform arising out of 148 recommendations for reform fully investigations implemented, 74 partly implemented 6 investigative reports 3 major conferences, and 5 10 prosecution, 10 disciplinary action proceedings government training events heldBOTSWANA 1,475 complaints received. 74% or 1096 in which theDCEC (2000) complainants identified themselves, 379 were made anonymously 145 presentations to public on 390 investigations commenced corruption 1,085 cases either referred to other bodies or no action was takenHONG KONG 3,561 graft reports receivedICAC (1999) 216 cases identified and investigate via own initiative 99% of those making graft complaints interviewed 106 detailed studies of government within 48 hours practices and procedures 89% of pursuable complaints completed within 12 260 requests from private firms for months free corruption prevention advice 504 persons prosecuted on corruption and related 100% of requesters of advice/training offenses (32% increase over 1998, up from 300+ on on corruption prevention contacted avg. 1974-1984) within 48 hours 302 Convictions (up 15% from 1998), for a success rate of 60%MALAYSIA 413 investigationsACA (1999) 213 cases outstanding from 1998 360 prosecutions begun in 1999 283 arrests, including 18 senior officials, 127 private persons 152 prosecutions completed 89 convictions, 56 acquittalsUSAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 25
  26. 26. PHILIPPINES 9,739 new casesOMBUDSMAN 2,209 cases filed for prosecution with the courts 10,583 requests for preventive(2000) 514 cases in which penalties were imposed on assistance received attention government official or employeesTANZANIA 1,128 complaints under investigationPCB (2000) 1,461 cases 12 public meetings 328 complaints under investigation closed 225 seminars 1,311 public complaints received 157 radio programs 88 private complaints received 48,000 brochures and leaflets 94 prosecutions (1995-2000)UGANDA 98 or 7% of cases investigated and completedIGG (1997-1998) 1,428 complaints received 420 cases referred to other government departmentsIntelligence, monitoring, and investigation: In this area, the data are not uniform. Some countries report thenumbers of investigations started, i.e. Argentina, Botswana, and Tanzania. Others, such as NSW, Ecuador,Malaysia, and Uganda, report completed investigations in various ways. It is hard to make sense of these data.Numbers of completed investigations seem more meaningful than numbers of investigations started – butneither speaks to the quality of the effort, nor the outcomes.Prosecutions and administrative orders: Here again, the reporting is disparate. Some agencies report overallnumbers, while others report actions taken by prosecutors and administrative supervisors, and a few reportboth – i.e. Argentina, NSW, Ecuador, Hong Kong, Malaysia, Tanzania, and the Philippines. The Philippines farexceeds the other countries in prosecutions, but there is a problem of comparability, since its ACA is the onlyone with authority to prosecute on its own. New South Wales reported only 10 prosecutions, but this is aresult of its narrow focus. Numbers and percentages of convictions are perhaps more telling, for the few thatreport them: Hong Kong (60% success rate), Malaysia (25%), the Philippines (23%). By this measure, Hong Kongis by far the most successful. Again, the numbers do not convey the quality of the proceedings, the quality of thecomplaints, nor the harshness or deterrent effect of the penalties imposed.Preventive research, analysis, and technical assistance: Only a few ACAs report results in this area: NSW, HongKong, and the Philippines. These numbers are not comparable, since they do not indicate the scope of theassistance activities counted. The most telling number is perhaps NSW’s 56% success rate in having itsrecommendations fully implemented.Ethics policy guidance, compliance review, and scrutiny of asset declarations: Most of the ACAs covered here donot process asset declarations. Of these, only Argentina reported on this (a near-perfect compliance rate).Public information, education, and outreach: Here too, there was little reporting. Numbers are published byNSW, Botswana, and Tanzania.Some caveats are in order here. First, these data are self-reported and are often, but not always, reviewed andverified independently. Second, the data are often incomplete, inconsistent, or untrustworthy. Not all of the basicoutputs are measured, and it is not easy to determine the consistency, for example, of prosecutions withprocedural protections and non-partisanship. Moreover, even complete measures on ACAs will eventually needto be supplemented with intermediate outcome data, which are frequently unavailable. Third, data comparisonsthemselves cannot conclusively demonstrate that results achieved by ACAs could not have been achievedthrough multi-agency cooperation in the absence of an ACA. Qualitative analysis, on the other hand, can showthe extent to which an ACA has overcome coordination, information, and leadership constraints that a differentapproach or agency might not haveUSAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 26
  27. 27. ENDNOTES1 United Nations. 2002. United Nations Convention against Corruption. Chapter 2, Article 6. Convention-e.pdf2Johnston, Michael. 2002. “Independent Anti-Corruption Commissions: Success Stories and Cautionary Tales.”Global Forum on Fighting Corruption and Safeguarding Integrity, The Hague: Memo, 4.3Doig, Alan. May 1995. “Good Government and Sustainable Anti-Corruption Strategies: A Role for IndependentAnti-Corruption Agencies?” Public Administration and Development. Pope, Jeremy. August 1999. “The Need for,and Role of, an Independent Anti-Corruption Agency.” Transparency International. Camerer, Lala. 1999.“Tackling the Multi-Headed Dragon: Evaluating prospects for a single anti-corruption agency in South Africa.”9th International Anti-Corruption Conference. Langseth, Petter. 2001. “Anti-corruption Agencies,” ExpertsMeeting, National Integrity Steering Committee (NISC). January 22. Transparency International. 2000. “Chapter11: Independent Anti-Corruption Agencies.” TI Source Book 2000.4 New South Wales Independent Commission Against Corruption. 2001. Annual Report 2000/01. Sydney. p.23.5Ah Leak, Tan. 1999. “The Experience of Singapore in Combating Corruption.” In Stapenhurst and Kpundeh.1999. In Anechiarico, Frank and Jacobs, James B. 1996. The Pursuit of Absolute Integrity. Chicago. The University ofChicago Press.6 Pope 1999.7 Speville, Bertrand de. 1997. Hong Kong: Policy Initiatives against Corruption. Development Centre of OECD.8 Kaufmann, Daniel. 1998. “Revisiting Anti-Corruption Strategies: Tilt Towards Incentive-Driven Approaches,”Corruption & Integrity Improvement Initiatives in Developing Countries, UNDP.9 USAID’s Office of Democracy and Governance is developing an Anticorruption Assessment Methodology toassist Missions to develop better understanding of the dynamics of corruption on which to base program designand implementation strategies.10 Gillespie, Kate and Gwenn Okruhlik. October 1991. The Political Dimensions of Corruption Cleanups: AFramework for Analysis, Comparative Politics 24. This perspective examined the politics of corruption cleanupsin some developing regions. These cleanups include legal measures such as the establishment of ACAs. Theanalysis focuses on the impact of the political context – continuation of incumbent leadership versus change as aresult of election, coup, or revolution – on the quality of the cleanup.11Maor, Moshe. January 2004. “Feeling the Heat? Anticorruption Mechanisms in Comparative Perspective.”Governance. Vol. 17. No.1, pp. 1-28.12 Doig, Alan, David Watt, and Robert Williams. 2005. “Measuring ‘Success’ in 5 African AnticorruptionCommissions [ACCs): Ghana, Malawi, Tanzania, Uganda, Zambia,” Draft Final Report, research reports.cfm13 Williams, Robert (2000), “Democracy, Development and Anti-Corruption Strategies: Learning from theAustralian Experience,” in Doig and Theobald, ed. Corruption and Democratisation. London: Frank Cass andCompany Limited. Williams raises the following concerns: “An epidemic of corruption scandals often inducesmoral panic and over-reaction. In such contexts, corruption commissioners can almost seem to act as modernwitchfinder-generals, playing on popular fears and asserting guilt where there was once a presumption ofinnocence.….They encourage a climate of suspicion and distrust, thus undermining confidence and public trust inpublic figures and the wider political system.”USAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 27
  28. 28. 14 USAID, 2005. “Assistance for Civilian Policing: Policy Guidance”. Inspector General Act of 1978 established Offices of Inspector General within a number of executivebranch departments and agencies. The Inspectors General were given a significant degree of independence aswell as subpoena power to carry out their responsibility for the detection and prevention of fraud, waste andmismanagement in government programs.16 The influence of Watergate was clearly felt in the passage of the Ethics in Government Act of 1978. This Actestablished the Office of Government Ethics within the Office of Personnel Management and charged it withproviding overall leadership and direction for the ethics program within the executive branch. It established acomprehensive public financial disclosure system for all three branches of the federal government. It alsoenacted procedures for the appointment of a special prosecutor with authority to conduct independentinvestigations and prosecutions of government officials and thereby remove politics from the administration ofjustice in certain highly sensitive cases. The 1978 Act strengthened the post-employment restrictions on formerofficials of the executive branch.17 Meagher, P. 2004. “Anti-Corruption Agencies: A Review of Experience,” revised paper submitted to theWorld Bank, PREM-ECA.18 Speville 1997. Camerer 1999.19Doig, et al. 2005. Meagher 2004. Meagher, Patrick. 2005. “Anti-Corruption Agencies: Rhetoric versusReality,” The Journal of Policy Reform, vol. 8, no. 1, New York: Routledge.USAID OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF - 28