Constitutional governance and institutions of horizontal accountability


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Constitutional governance and institutions of horizontal accountability

  1. 1. Constitutional Governance and Institutions of Horizontal Accountability:Improving the Performance of the Independent Corrupt Practices Commission1 By Centre for Democracy & Development 2, Olabode Street, Ilupeju Estate, Lagos, NIGERIAIntroductionIn Africa and largely across the globe, interests groups and citizens now hold strongviews that State constitutions must entrench certain fundamental principles that allowfor the creation, existence and practice of independent oversight agencies that cansafeguard the interests of the people, mediate the excesses of their government andhelp to enforce the law. As Schedler, et-al aptly capture in the introductory chapterof their book, The Self Restraining State, “we are witnessing today a growingawareness that liberal democracy requires governments that are not onlyaccountable to their citizens but also subject to restraint and oversight by otherpublic agencies.”2In Africa’s new struggle for constitutionalism, oversight institutions such asConstitutional Courts, Independent Electoral Bodies, Anti-Corruption and PublicAccountability Bodies, Ombudsperson, Public Protector and Inspector General ofGovernment’s activities, Independent Central Bank; Gender Equality Commission,Human Rights, Social Justice, Economic and Cultural Rights Commissions are seen,especially in civil society, as having the potential of becoming the major pillars onwhich the very foundations of good governance practices are set, when they areallowed to function independently of influence from State organs and personalitiesfor the benefit and the cause of participation in governance by the citizenry. From1 Being Memorandum prepared for presentation at the Senate Public Hearing on the Review of theIndependent Corrup Practices Commission, March 6, 2003.2 Andreas Scheadler, et-al (eds), The Self Restraining State: Power and Accountability in NewDemocracies (Boulder, Colorado: Lynne Rienner, 1999), p.1. 1
  2. 2. South Africa to Ghana, Uganda to Benin republic, the principle of independentcommissions as mediatory organs or ‘honest brokers’ occupying the realm betweenthe citizens and governments is central in the constitution-making campaigns inrecent times and it has enriched the debate about the quality, character andstructure of governance institutions in these States.In addition to State based oversight and enforcement commissions, a number ofAfrican countries have also incorporated international institutions that promotehuman rights and social justice into their domestic laws. For example, the AfricanCharter of Human and Peoples Rights, the statutes of the International CriminalCourt and the African Court of Justice have been ratified and signed into law inseveral African countries.In spite of the recognition that these commissions serve the overall purpose ofstrengthening government accountability and answerability to the citizens, there hasbeen a certain resistance to guarantee their independence where they are alreadyincorporated into the constitutions. Unlike the experience in Eastern Europe, whereconstitutionally entrenched commissions came on the heels of the various‘revolutions’ heralding the collapse of the cold war state, the process leading to thecollapse of the old regimes in Africa, in which erstwhile military rulers justreconfigured themselves into Civilian heads of states, had a bearing on the quality ofconstitutional reform and the inclusion of institutions of horizontal accountability inAfrica’s post-cold war constitutions.3 In States like Benin republic, Mali, South Africaand to a certain extent – Uganda, Ghana and Eritrea, the progressive nature ofpolitical transition was reflected in the attention paid to these oversight agencies inthe new constitutions. In pacted democracies such as Nigeria, the nature of thepolitical transition also impacted on the content of the constitution enabling powerfulforces to ensure that provisions that seek to curb excessive personal powers wereremoved before the military government promulgated the final product. This, forexample, led to the removal of the provision on Constitutional Court in the 19993 In West Africa for example, ten of the sixteen ‘new civilian’ rulers were previously military rulers andused the power of incumbency to transform themselves when pressures to reform from within andoutside the country in the early 1990s became overwhelming. 2
  3. 3. constitution, even though the Constitutional Debating Coordinating Committeerecommended this.4Oversight and Enforcement Agencies: The Case of NigeriaAlthough elected authorities in Africa as elsewhere often do not like subjectingthemselves to strictures of accountability imposed by unelected bodies such asindependent institutions, there is evidence to suggest that they recognise the dangerthat unrestrained and unaccountable government constitutes to the deepening of thedemocratic agenda and the elimination of corruption. Given the history of graft,irresponsibility and sheer abuse by successive governments in Nigeria, theestablishment of oversight institutions both within and outside of the constitution hasbeen one principal way of holding power in check, alongside other traditionalinstitutions of the State that check and monitor each other. Indeed, this is aphenomenon that predates the renewed interest in agencies of horizontalaccountability in post cold war Africa. Nigeria’s 1979 Constitution, for example, haselaborate provisions for oversight institutions like the Code of Conduct Bureau andTribunal. Nigeria’s new constitution which came into force in May 1999 largelyreproduced the provisions of the earlier constitution and added a few others like theIndependent Electoral Commission in spite of the fundamentally flawed process thatattended its drafting.Although the framers of the 1999 constitution paid some attention to the creation ofinstitutions of horizontal accountability as it happened in 1979, (the Constitution hasprovisions for a Code of Conduct Bureau, a Code of Conduct Tribunal, a PublicComplaints Commission, an Independent National Electoral Commission and aNational Judicial Commission), the problem is that these institutions of accountabilityhardly comply with the minimum standards of independent commissions in newdemocracies in the sense that their purported independence is often in name onlywhilst the essence and purpose of their independence is glaringly absent in theirfunctioning and activities. What then are these minimum conditions?4 Information provided by two members of the CDCC 3
  4. 4. Ideally, such institutions should operate without fear or favour in their promotion andprotection of transparency, accountability and integrity to ensure a free and fairdispensation of justice and administration. They must not be subject to the whimsor pressure of those who appointed them, even if President and/or NationalAssembly wield enormous power over security of tenure of their offices.Indeed, what makes them independent is their autonomy and the minute that is indoubt, their legitimacy will also be severely affected. For example, there should bemechanisms, which will allow such Commissions have access to adequateresources for operations so that they do not become beholden to governmentalinstitutions under their purview in order to be able to fulfil their mandate. The recentexample of the Electoral Commission and the incessant complaints of its Chairmanof governmental interference and lack of funds demonstrate this. Therefore, it isimportant for the Constitution to guarantee adequate funding through theConsolidated Fund of the National Assembly. In Nigeria, this has not been thecase since the current Constitution does not give a constitutional guarantee on thefunding of these institutions. They are at the mercy of the Executive branch ofgovernment and are almost always treated like State controlled Commissions suchas the Public Service Commission, Judicial Service Commission, Federal CharacterCommission, National Revenue Mobilisation Commission etc.On the fundamental concept of Independent Commissions which is that theseCommissions will act as societys watchdogs in seeking information, justification forgovernment actions, oversight and enforcement, in Nigeria – there is often anasymmetry between the agencies and the public officials – especially when it comesto holding the ‘big men’ accountable for their actions. Although their right to get ananswer is not often questioned by those in authority, that right does not often extendto the right to make the answer public. Neither are oversight agencies empoweredto act independently of the Executive arm of the State, of the National Assembly orother sectoral interests that might exist and to seek the enforcement of the law sincethey often lack prosecutorial authority and depend on the Justice Ministry to filecases on their behalf.5 Although ICPC is empowered to investigate reported crimes,the powers to prosecute still lies with an external body. Now, the amended ICPC law5 This is a major complaint by the Chair of the Independent Anti-Corruption Practices Commission,Justice Akanbi. See Tell Magazine, November 11, 2002. 4
  5. 5. in the Senate has removed the powers of investigation and transferred this to theexisting bodies charged with this responsibility, we believe this is not the way torespond to the obvious delays in prosecuting the cases of alleged offenders.(Otive:Please check what the new law says about prosecution and revise my paperaccordingly)Typifying this negation of a fundamental principle of independent institutions ofaccountability is the elaborate provision on the Code of Conduct Bureau, which hasbeen in the Nigerian constitution since 1979. This provision empowers the Bureau todemand declaration of assets by public officials elected or appointed to office. It isthe responsibility of the Bureau to ascertain the veracity of the claims made in thesedeclarations. An enforcement institution with prosecutorial authority, the Code ofConduct Tribunal, is also entrenched in the constitution with the powers to punish.The irony is that the assets declared cannot be made public unless the declarantchose to voluntarily make such public, hence the opportunity to expose known casesof corruption is limited. An attempt by a civil society organisation, the Media RightsAgenda, to challenge the secrecy surrounding asset declaration and promotefreedom of information was dismissed by a High Court judge in a judiciary that isitself riven by corruption and lack of independence. Ironically, in order to tackle theinability of the Code of Conduct Bureau to address the unrelenting problem ofcorruption in government and seeing the futility of using the constitutional provisions,the Obasanjo government set up the ICPC with extensive powers outside of theConstitution and often in conflict with the provisions of the Code of Conduct Bureau.Instead of reinforcing the Constitutional provisions, the new body has rendered itlargely moribund and the two are now engaged in an unnecessary turf battle.Meanwhile the asymmetry between the extent of corruption in the polity and theculprits brought to book remains glaringly disproportionate. (Otive: My argumenthere is that the publicity is key to engendering a culture of accountability andthat ICPC should be linked to the Freedom of Information Bill and ourWhistleblowers Act and we should be urging the Senate to pass both if theyare genuinely interested in strengthening ICPC Act – We should then attachthe Whistleblowers Bill as an appendix to this paper) 5
  6. 6. Leaving aside the problems imposed on ICPC by its flawed establishment in Nigeria,it has sadly also suffered a credibility deficit due to the lack of transparency in theunstructured manner that it also interacts with the general public, hence the negativepress it has received in recent times. Given the focus on accountability andjustification for governmental actions, most watchers of ICPC and such bodiesbelieve that constant engagement with the public is key. Publicity must not onlyapply to power holders but also to agents of accountability. In a situationwhere they lack the capacity or the desire to publicise their work with thepublic, they expose themselves to the same accusations of self-importanceand arrogance that often get government into trouble with the citizens.National Oversight Institutions and the Challenge of relevanceWhile the situation of Oversight and Enforcement Institutions is not as bad in somecountries like South Africa, Botswana and Uganda – where some landmark caseshave promoted public interest law and judicial activism and led to changes in theConstitution, the Nigerian situation described above is more of the rule than theexception on the continent. Indeed, oversight agencies face a serious challenge ofrelevance and legitimacy in other countries where they are in operation – primarilybecause they are not even constitutional bodies.The challenge of legitimacy is not just one of operations and legal jurisdiction, butalso primarily one of conceptualisation and we have seen this in the recentdisagreements between the Executive branch and the National Assembly.Conceptually, oversight agencies would appear to constitute a contradiction in thesense that accountability of elected authorities and personalities to powerfulinstitutions occupied by unelected persons, tasked with ‘supervising’, ‘monitoring’and/or ‘regulating’ the powers of elected officials is inherently seen to be‘undemocratic’. Indeed, as we have seen in the recent debate, some politicians haveargued that it is a surreptitious way of power brokerage by those who could not facethe heat of electoral politics. Major proponents of this position argue that the checksand balances provided by the creative tension among the three branches ofgovernment – the executive, legislature and the judiciary - is adequate and ICPC 6
  7. 7. deserves no special powers. Whilst we believe that there is need to harmonise thevarious contradictory instruments in Nigeria, we do not agree that Nigeria does notneed independent accountability institutions like ICPC.The question remains however: “who guards the guardians” and this is very centralto the relationship between elected officials and members of oversight agencies. Aswe have seen in Nigeria, this has already become a major problem and there isindeed a widely held perception that the current exercise has been triggered by thisunresolved problems. Indeed, the suggestion by many proponents in the Senate isthat ICPC is on an hatchet job for the executive branch of government, an allegationalready vehemently denied by the leadership of ICPC. It is not uncommon ofindependent oversight institutions therefore to overstep their bounds and promotepolitical viewpoints or seek to embarrass elected authorities through biased andpartial judgements, as has been the case in some countries in Eastern and CentralEurope,6 but it is also commonplace for unscrupulous elected officials to attempt tohamper the work of independent commissions aimed at curbing their excesses.Transparency therefore holds the key to ensuring that the actions of such a body arenot perceived to favour one party to the detriment of the others. Partisan political orethnic affiliations become an issue when accountability agencies confuse their rolesand responsibilities with that of the executive branch or legislative committees. Thisencroachment into jurisdiction that is often undefined but which appears outside ofthe realm of these institutions has been a key source of problems especially inmaturing democracies with a great deal of potential for reversals. Yet, it is true asSchedler and others argue that ‘holding power accountable should not implydetermining the way it is exercised; neither does it aim at eliminatingdiscretion through stringent bureaucratic regulation’.’7In our view, a way of addressing these institutional challenges is by defining differentlevels of accountability – governmental, legislative, bureaucratic, judicial,electoral and international and deciding early a clear code of conduct or behaviour6 See Herman Schwartz, ‘Surprising Success: The New Eastern European Constitutional Courts’ inAndreas Schedler, et-al, op-cit, pp.195-213, especially the section on ‘The Failures’.7 Ibid, “Conceptualising Accountability”, p.7 7
  8. 8. for those involved in independent oversight institutions that are constitutionallyentrenched. Members of oversight institutions, for example, should at the minimumbe expected to:• promote the principles of natural justice; promote and protect human rights;• act in an unbiased and impartial manner; not unfairly discriminate against any member of the public on account of race, gender, ethnic or social origin, colour, age, disability, religion, political persuasion, conscience, belief, culture or language;• avoid the use of the oversight institution’s membership to unfairly promote or prejudice the interests of any person, political party or interest group;• avoid the use of such bodies to persecute individuals on the basis of political persuasion;• promote sound, efficient, effective, transparent and accountable administration in the course of his/her official duties shall report to the appropriate authorities, fraud, corruption, nepotism, maladministration and any other act which constitutes an offence, or which is prejudicial to the public interest• avoid the use or disclose any official information for personal gain or the gain of others;• execute his/her duty in a transparent and accountable manner;• uphold the integrity of the constitution.(ICPC, for example, actually contradict, rather than reinforce the fundamental tenets of the constitution, given the process of its incorporation into law. It is in this sense that many continue to see it as a Presidential, rather than a Constitutional Commission.)Best Practice Experiences in the Establishment of Oversight Agencies.Given one’s preference for oversight agencies if some faith is to be restored ingovernment, there are objective concerns that will have to be addressed by thisamendment by the National Assembly if the exercise is not to be seen as self-serving and in order to enhance the principle of legitimacy that is necessary for theefficiency of such institutions. Based on the experience of independent institutions in 8
  9. 9. mature democracies and the more recent experience of bodies like the ConstitutionalCourts and the Office of Public Protector in Eastern Europe and South Africa, anumber of measures seem to suggest themselves as institutional mechanisms toovercome doubt in the promotion and performance of the ICPC and such other goodgovernance structures. These relate to:Establishment: For their legitimacy, all Independent Commissions must beestablished in terms of the Constitution supported by Acts of the National Assembly.All Commissions so established must be essentially autonomous and independententities and protected from interference and undue influence from whatever source.Membership: All commissioners should be in full time service for fixed periods. Nore-appointment should be allowed. Indeed, ICPC must have a fully rotatingmembership on termination of the period for which they are appointed. We havenoted with consternation that the new Senate Bill is proposing a five-year single termof office. Whilst this is aimed at ensuring the integrity of the IndependentCommission, it seems to us that this term limit is too short. Equally, we agree that a15 year term of office is excessive. Having studied the various commissions aroundthe world, we would recommend a 7 - 10 year single term of office. In South Africaand Eastern and Central Europe, the public protector and most of the ConstitutionalCourt judges are appointed for single terms of seven to ten years and it is believedthat this has contributed to the ‘surprising success’ of these institutions.Membership Qualifications: Ideally, and as far as may be practicable at all times,commissioners should be appropriately qualified professionals with relevantexperience related to their field of engagement as commissioners. Appropriatequalifications would normally be of a professional nature, either by degree orprofessional examination. There will necessarily be desirable exceptions.Appointments should be gender sensitive and should as far as is possible, representthe diversity of the society. All persons appointed should be of high moral integrityand be known to have adhered to ethical standards professionally. 9
  10. 10. Appointment of Members: Depending on the Commission and country, appointmentinto independent commissions is usually the formal prerogative of the Head ofState/relevant Minister in all cases after certain procedures have been adhered to.We note with concern the attempt by the new bill to remove these powers from thePresident of the country. In our view, this is ill-advised and we propose that thePresident should continue to have the final responsibilities of appointingCommissioners after certain procedures have been undertaken. Although there areno consistent or fixed procedures, the following are common best practice in theappointment of members of oversight agencies:Nominations are usually sought from appropriate sources such as professionalbodies, representative associations, the universities, relevant non-governmentalorganisations, the Judicial Service Commission, etc. In certain instances applicationfor appointment could be entertained after advertisement and we believe the ICPCsituation now calls for this. Except in the choice of the Chairperson, a reputableexecutive selection firm should be charged with the responsibility of recruitingmembers of the ICPC on clearly agreed, but generally stringent criteria,including open advertisement for good candidates. In many cases, consultationshould take place with the Judicial or Civil Service Commission - it will be evidentfrom the nature of the commission where this is appropriate. The idea however thatthe Chair of any oversight agency must be a serving or retired Judge orsomeone schooled in the rudiments of law is one that is beginning to change,although this is still prevalent in Africa. What seems important, in our view, isthe competence level and moral authority of the leadership. Therefore, we arenot convinced by the proposal in the new bill for a serving Judge of the Courtof Appeal to chair ICPC. (The widely held view except in few instances is that thecurrent Chairperson of ICPC is a person of integrity, even if the structure he headshas foundational problems that must be overcome.)Following nomination or application, a Committee of the National Assembly usuallyconsiders names either directly or through a relevant Ministry. The Committeeshould be kept informed of all applicants or nominations whether considered suitableor not and there should be no filtration procedure on the part of the Ministry. 10
  11. 11. Relevant Ministries/Department should however always be invited and free tocomment on the merits of any or all prospective commissioners in the course of thefinal decisions and recommendations to the President/Head of State.Following approval by National Assembly after scrutiny by the Select Committee –the names should be forwarded to the president for formal appointment andthereafter gazetting.Members Remuneration: Again, whilst there is no standardised practice,Commissioners should be remunerated on a basis fully comparable to prevailingsalaries paid for their level of skills and experience in the private sector and certainlyno less than they are earning elsewhere at the time of their appointment.Tenure of Office: Tenure of office should be for limited non-renewable periods of notless than five years and not more than ten as indicated above.Dismissal: On representation, the Select Committee on Appointments may on a two-thirds majority vote by its members recommend to the National Assembly theremoval of a Commissioner on the basis of his/her prescribed functions, insolvency,insanity, serious misbehaviour or conviction of any criminal offence. Such removalshall take place only after a Committee of Enquiry has been convened and hasheard representations from the Commissioner or his legal representative.Vacancies: Where an office falls vacant by act of dismissal, resignation or death, theNational Assembly Select Committee on Appointment may appoint a replacementfollowing procedures applicable generally to the appointment of Commissionmembers at the time.Funding: Usually, budgetary considerations dictate that the number of commissionsand commissioners should be restricted. If of the desired calibre, it is generallypossible for a small number of Commissioners to perform their duties as efficientlyas would a larger number. 11
  12. 12. It is also perceived that limited numbers of full time commissioners would yieldgreater value for money in terms of both efficiency and application to their task thanlarger numbers of part time commissioners. It is usually seen to be more productivefor there to be greater numbers of professional staff rather than greater numbers ofcommissioners.That said, the overriding principle is that funding must be adequate. This requirementmust be entrenched in the Constitution to ensure independence. What constitutesadequate should be determined by the Appropriations Committee of the NationalAssembly and not by the Ministry of Finance - although ultimately sourced from theConsolidated Revenue Fund. Restrictions on funding will inevitably affect the abilityof any commission to deliver, that which is expected of it.Staff: Staffing at senior level will necessarily be limited by costs. Similarconsiderations would apply to both qualifications for appointment and the level ofremuneration as are recited above in relation to commissioners. But staffingrequires a major attention. In our view, ICPC has found itself in a compromisingsituation due to the fact that it has often relied on professionals from other arms ofthe public service to undertake certain tasks, rather than its own independentinvestigative and prosecutorial team and this has often been perceived as leavingroom for the prejudices of those officials to find space in the work they do.Functions and Powers: it is recommended that the mandate of ICPC beincorporated into the Constitution together with certain essential functions andpowers and that the remaining detail is incorporated into the supporting legislation.This is key if the Commission is to escape being labelled a presidential, rather than aconstitutional body set against so called enemies of the presidency.What Future for Independent Oversight and Enforcement Institutions 12
  13. 13. It is clearly a positive development that Africa’s democratic transitions have givenrise to attempts to bring oversight agencies into the mainstream of constitutionalgovernance and overall public sector management reforms. It is to the advantage ofStates like Nigeria where trust in government capacity to act in the best interest ofthe citizens has been eroded over the years to use these institutions to graduallybuild confidence in the transition years and it is hoped that key stakeholders presentat this meeting will take these lessons to heart in their effort to entrench goodgovernance principles in Nigeria.For these institutions to make an impact beyond their appearance in constitutionaldocuments though, some principles are pivotal to their promotion as oversightagencies responsible for the accountability of elected authorities. The key principlesof good governance in oversight and enforement agencies are: • Although independent, oversight and enforcement agencies must themselves be accountable both to elected civil authorities – especially the legislature and to civil society and not see themselves as alternative governments; • They must operate in accordance with the international law and domestic constitutional law by reinforcing constitutional provisions, rather than acting outside of them; • Information about the work of oversight agencies must be widely available, both within government and to the public, and a comprehensive and disciplined approach to the management of their resources must be adopted; • Activities of oversight agencies must be based on a well-articulated hierarchy of authority between elected civil authorities and the agencies; • An environment exists in which civil society can be consulted on a regular basis on oversight institutions’ policies, resource allocation, and other relevant issues through regular public, special and ‘in-camera’ hearings; • Oversight agencies personnel must be adequately trained to discharge their duties in a professional manner consistent with the requirements of democratic societies; • An environment supportive of regional and sub-regional accountability organs must be encouraged by policy makers and constitutionalists. 13
  14. 14. ConclusionWhile independent institutions are not going to resolve all of the governanceproblems highlighted above even when entrenched in the Nigerian constitution, theywill go a long way in restoring confidence in government in Nigeria wheregovernance structures and practices have traditionally been weak and least definedand expose public officials to the demands of public accountability. While we havenoticed positive developments with the establishment of bodies like the ICPC, theBudget Monitoring and Price Intelligence Office in the Presidency, the Human RightsCommission and the Electoral Commission, the credibility of these institutionsremain in doubt as many believe their independence is in name only. Theiraccountability to the elected authorities and not just the Presidency is one reasonwhy they need to be appropriately institutionalised in the constitution.Nevertheless, it is clear that even when Nigeria has addressed the question of thetraditional structures of accountability through the resolution of current problems ininter-governmental relations between levels of government, separation of powers –especially between the executive branch and the legislature, independent oversightinstitutions are critical to regaining the trust and confidence of the citizens. Theelements of ‘good governance’ bound to result from the effective functioning ofindependent oversight institutions will inevitably focus the mind of public sectorofficials at all times on the key principles of accountability and answerability and alsohelp restore faith whilst arresting the erosion of state legitimacy.As we stand on the threshold of history, it is important that the Senate sees its taskin this regard as task-focussed, rather than personality determined and we hopesome of our modest recommendations will help this august Assembly in achievingthis. 14