Sofie Arjon Schütte, Senior Advisor at the U4 Anti-Corruption Resource Centre, contributes the following guest post, adapted from her recent U4 research paper, “The fish’s head: appointment and removal procedures for anti-corruption agency leadership”:
There has been much discussion on this blog (see here, here, and here) about the requirements for an effective, independent anticorruption agency (ACA). A number of factors are important, including (as emphasized in the Jakarta Statement) the ACA’s mandate, permanence, budget security, autonomy over financial and human resources, and internal and external accountability mechanisms, to name a few. But among the many important factors, the procedures for appointment and removal are particularly critical. As the saying goes, “a fish rots from the head down”: when the leadership of an organization is unethical or ineffective, these failings infect the entire organization. Undue external interference with an ACA is likely to target the head, and a co-opted or corrupted ACA head can do serious damage to the effectiveness and reputation of the ACA.
My research on the appointment and removal procedures for heads of 46 ACAs around the world has highlighted some of the important factors that can promote or undermine effective, ethical, and independent ACA leadership. Given different contexts, no specific set of procedures for appointments and removals can be considered ideal for all environments. Nevertheless, some general guidelines are possible:
- Political insulation is important. If an ACA head can be appointed and removed at will by a political stakeholder, the appointee has an incentive to defer to the will of the appointer. Some countries (including Indonesia, Kenya, Madagascar, the Maldives, Slovenia and the Philippines) have therefore made such appointments the shared responsibility of several distinct stakeholders (executive, legislature, civil society) to avoid potential misuse of the ACA by the government or a particular political group. However, the institutional arrangements that will protect ACA independence depend on the political regime and institutional landscape of the country in question. The veto power of Parliament in one country may be real and strong, whereas in another jurisdiction the legislature may be reduced to rubberstamping the decisions of the executive. When the political system is competitive, the competitors may need an independent arbiter of their behavior and may support the independence of the ACA, just as they respect the independence of the courts.
- In addition to who has responsibility for appointments, the criteria for eligibility and the transparency of the selection criteria and process also matter. The inclusion or exclusion of a certain group of candidates can have an effect on the actual and perceived impartiality, competence, and responsiveness of the head of the agency. The inclusion of non-state actors, for example, is likely to gain more public trust than limiting candidates to party office holders. More generally, both appointment and removal procedures benefit from an open process that includes multiple stakeholders. Broad consultation and/or ratification by more than one branch of government, as well as consultation with civil society, offers more safeguards than direct appointment or removal by a single power holder.
- Removal procedures can become just as important as appointments procedures. Security of tenure needs to be weighed against accountability. The implicit or explicit threat of removal can be a powerful incentive for the ACA head to align with specific interests. Removal procedures become important when those whose interests are threatened try to influence or remove key decision makers in the ACAs. Examples of lacking procedures abound. In Indonesia, which has an elaborate, transparent, and participatory appointment procedure, charges by a corrupt police have been enough to dismiss commissioners. Of course, removal may sometimes be necessary to replace leaders who are corrupt, politically driven, or simply incompetent; an ACA leadership’s protection against lawful removal cannot be absolute (see here). More often than not, however, ACA heads need greater protection, not greater external control.
- Although we often focus on the formal institutional rules, we must not neglect the risks of extra-legal coercion brought to bear against ACA leaders. Political leaders may resort to illegal measures such as threats and assassination attempts. Such pressures were brought, for example, against Nuhu Ribadu, chair of the Nigerian EFCC, who was first removed from his position for a one-year training course and then menaced by two attempted assassinations.
- Finally, appointment and removal procedures are not set in stone, but rather can be revised during various stages of the life-cycle of an ACA – not only during the initial legislative design of the agency, but also later, when opportunities for legislative review occur.