Scorpions with Wax Wings: How Anticorruption Agencies Can Avoid Flying Too Close to the Sun

Public rhetoric about the battle against corruption often centers on the need for “zero tolerance”–the need for institutions, including perhaps most importantly law enforcement agencies–to aggressively root out graft through vigorous prosecution, no matter the circumstances.  What more often goes unsaid, though, is that actually following such strategies may end up being counterproductive.  The aggressive pursuit of corruption-busting litigation can lead to political elites pulling the rug out from underneath the anticorruption agency (ACA).  In South Africa, for example, the National Assembly dissolved the Scorpions, a special investigative unit, once it began going after high-ranking government officials.

As a result of the danger of being undercut, ACAs face an inherent tension in their work: they want to fight corruption to the greatest extent possible, but fighting it too aggressively can lead to the agency’s ability to perform its duties being completely undercut.  How far, then, can an ACA push? Though the unique context of any given ACA means no universal lessons exist, there are some general guidelines ACAs should consider when shaping their anticorruption efforts, if they want to avoid a backlash that ultimately consolidates the power of the corrupt:

  • Public support is important to an agency surviving a political attack. Public popularity is often the ACA’s best shield against political interference. A sense among political elites that the public values the ACA can help preemptively deter attempts to undercut it. Moreover, in the event an attack does take place, public protests, as in Indonesia and Latvia, can help the ACA or specifically targeted ACA officials survive. On this point, an ACA needs to be cognizant of the media environment in which it operates: a free media with an interest in government accountability and access to the government will be better able to spread the word about the ACA’s activities and any threats against the ACA.
  • Be strategic, especially when the ACA is young. Taking on many high level cases in a short time, particularly when the ACA is still building up its institutional legitimacy and capacity, may increase the ACA’s exposure to political attacks before it is in a position to defend itself.  The adoption of self-imposed limits does not mean that the ACA will forever give all powerful politicians a pass. Rather, an ACA may be better off biding its time until it is in a position to effectively pursue those bigger fish.
  • Don’t lean too heavily on litigation. Litigation is more likely to draw politicians’ ire, thereby increasing the likelihood of retaliation, and can more easily be seen as partisan, which can cause the anticorruption agency to lose the public support necessary to withstand political attack.  Also, other than acting as a deterrent, litigation arguably doesn’t fix the “structural weaknesses” that permit and encourage corruption. Preventive measures, by contrast, both deter and reform.  True, high-level prosecutions may be more likely to draw media attention and thereby increase public support than “boring” preventive measures.  However, self-reporting and other actions induced by prevention-oriented procedures can be a powerful tool for decreasing corrupt activities.
  • Be careful not to cross legal lines. Angry politicians may find alternate avenues of attack, but it’s important not to give them any more than necessary.  By violating attorney-client privilege in their investigation of Jacob Zuma, the Scorpions fell into this trap.  Many other ACAs have also had their mandates or their execution of those mandates challenged on legal grounds.  An aggressive anticorruption campaign can lead to sloppiness or a feeling that pushing legal boundaries in pursuit of the greater good is acceptable.  ACAs need to avoid these tendencies and focus instead on the longer term: any temporary short-term advantage may cost them more than it was worth when the judicial system pushes back or politicians can more easily characterize the ACA’s acts as illegitimate.

It’s easy to see why ACA officials might not want to include these sorts of ideas in their public statements. The idea of an ACA not immediately following up on every lead may seem distasteful. “Vigorous prosecution” scans much better in a press release than “increased monitoring of politically exposed persons.” Still, if they want to avoid going the way of the Scorpions, Portugal’s Alta Autoridade Contra a Corrupção, Italy’s High Commissioner Against Corruption, and numerous other ACAs disbanded and at best revived in a defanged state, ACAs–particularly those in countries dominated by a single party–need to be willing to consider a trade-off: a somewhat limited anticorruption campaign in exchange for a longer life that allows them to continue to fight and win sustainable victories for many years to come.

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