This past September, at a meeting of the East African Association of Anti-Corruption Authorities, Daniel Fred Kidega, the Speaker of the East African Legislative Assembly (EALA) announced that the regional legislature planned to consider a series of anticorruption and whistleblower bills (also reported here). (The EALA is the legislative body of the East African Community, a treaty organization to which Burundi, Kenya, Rwanda, Tanzania, and Uganda are members.) According to the Speaker’s remarks, “[t]he Laws passed by EALA supercede those of the Partner States on matters within the purview of the Community.”
Details on the legislation are scant, and movement on this proposal does not seem imminent. (Drafts of the proposed legislation are not available on the EALA website, nor could I find them through other sources. And at the mid-October EALA session, anticorruption does not appear to have been on the agenda.) Furthermore, the EAC Treaty does not provide the EALA all of the legislative power the Speaker’s statements suggest, because, according to Article 63 of the EAC Treaty, acts of the EALA only become effective law for member states if each of the five Heads of State “assents” to the measure. Nonetheless, given the interest in East Africa and elsewhere in greater international cooperation on anticorruption efforts, it’s worth reflecting on whether regional anticorruption legislation such as that proposed by Speaker Kidega is a good idea.
I tend to think not. While regional coordination, particularly through conventions, can be an effective way to strengthen anticorruption efforts (as Rick previously discussed in a comment on this post), it is not a good idea in every circumstance (as Matthew noted in a recent post in the context of proposals for a ASEAN Integrity Community). Although the EAC might be able to perform a helpful goal-setting and coordinating role (something akin to an UNCAC or African Union Convention on Preventing and Combating Corruption), the proposal for the EALA to enact more binding regional anticorruption legislation involves more risks than benefits.
- First, any bill the EALA passes, and that receives the required asset from the member states, will be the product of compromise. In all likelihood, that compromise will result in laws agreeable to the most reluctant member state. Although compromise can be a good thing, in this context the result could be that the compromise legislation actually weakens anticorruption efforts in one or more member states in order to gain the assent of the reluctant EAC members. That is, EAC-wide anticorruption legislation could lead a member state to have a law in force that is actually weaker than the law it would have enacted and enforced independent of EALA legislation. Thus, there is a risk that, if EALA legislation does indeed “supercede” member state legislation, instead of creating a “floor” for anticorruption law, such EALA legislation would end up establishing a “ceiling” that could hold back some member states’ anticorruption efforts. I do not think that the Speaker or EALA generally intends to set a ceiling on anticorruption legislation in the member states. Still, to err on the side of caution, it would be useful to include provisions making explicit that the regional legislation does not prevent the member states from going beyond the standards set within the bill to create a more robust anticorruption regime.
- Second, even if the EALA enacts legislation that is stronger than any individual member state’s current law, and the heads of state all assent, there is a risk that uneven enforcement may lead to a form of corruption arbitrage (in addition to a risk that none of the member states are equipped to enforce the stronger anticorruption laws enacted at the regional level). The risk is particularly acute if the EALA legislation mandates a particular enforcement regime. The concern is that some member states will be better able to implement the compromise enforcement scheme than others. A one-size-fits-all enforcement regime could lead to uneven enforcement because enforcement mechanisms are likely to vary among the member states. If so, corrupt actors take could take advantage of varying levels of enforcement among the member states and engage in corrupt acts in the state(s) where enforcement is least effective. (Uneven enforcement is not a new concern, as this Financial Times article, a prior post on this blog, and this Transparency International post described in the context of OECD Anti-Bribery Convention.). To avoid this concern, the EALA legislation, if enacted, should avoid specifying how the provisions should be enforced, and should explicitly permit member states to develop their own enforcement mechanisms. Doing so will not resolve the problem of uneven enforcement, but it will at least free the member states interested in enforcing the legislation to do so in the manner that will be most effective in their countries.
- Third, it is not clear that EALA’s membership is better equipped to develop anticorruption legislation than are the individual member state governments. The difficulty in gaining assent from the Heads of State has already been discussed. The makeup of the EALA presents another barrier to reform if the individual member states do not desire it. The legislature consists of nine members from each member state, who are elected by the national assembly of their respective member state with the goal of “represent[ing] as much as it is feasible, the various political parties represented in the National Assembly, shades of opinion, gender and other special interest groups in that Partner State, in accordance with such procedure as the National Assembly of each Partner State may determine.” Thus, a member state’s national assembly could take steps to prevent passage of a strong anticorruption bill in the first place by electing EALA representatives who they are confident would not support strong anticorruption legislation. In other words, if the national assembly of a given member state is not interested in cracking down on corruption, it is unlikely that the EALA representatives it elects will be interested in true reform either, so it may be better to leave it to the member states in light of the first and second potential issues described above.
Despite these general concerns, it is encouraging to see the EALA considering anticorruption efforts. Even without legislation, further coordination—particularly in the context of cross-border corruption—could have many positive effects, and discussing corruption issues and graft-fighting efforts on a regional level can help all member states learn from the experience of neighbors.
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Thanks for a great post! I’ve been thinking a lot about this topic–coordinated regional approaches to anti-corruption–in the Central American context. More specifically, the strong push for replicating Guatemala’s anti-impunity commission (CICIG) in other Central American countries implies that the concerns and desirable approaches related to corruption are similar across the region, so I have been wondering why the call is for franchising CICIG rather than creating a regional anti-corruption body. Of course, that would be a different undertaking than regional legislation or a regional convention, but some of the pros and cons are similar.
One major worry (as you point out in your first bulleted point) in both contexts is whether regional coordination will result in the implementation of the most reluctant member’s policy across the region. But I don’t think we have to expect such a result. Compromise and negotiation could mean that the most reluctant member “trades” his or her policy preference of a weak corruption policy for a concession in some other area. Of course, a preference of a strong anti-corruption policy could be similarly traded away. But more likely than the lowest common denominator consistently winning would be some sort of averaging of preferences. There is still the issue of the result being less aggressive of a policy than some members may have chosen on their own, so clarifying that a regional position is a floor rather than a ceiling as you recommend is still important.
Also, while the representatives a reluctant domestic government sends to a regional institution may be as reluctant as the government deploying them (as you note in your third bulleted point), they are unlikely to be more reluctant, right? So at the very least, the situation is only as bad as if the domestic leaders were all meeting themselves. But, the representative model still might be better since sometimes those appointed to do anti-corruption work by a domestic government, even if seemingly uncommitted to the cause initially, surprise us. Here I’m thinking of Thelma Aldana, CICIG’s domestic government counterpart. When she was first appointed to replace an attorney general held in high esteem, there was skepticism about her commitment to advancing anti-corruption efforts (http://www.economist.com/blogs/americasview/2014/05/guatemala-s-attorney-general), but she proved to be a staunch ally and instrumental to anti-corruption success in Guatemala this year.
A related question is whether we should think of anti-corruption work as a core function of a domestic government, perhaps as a democracy enabling responsibility. The answer matters for the regional anti-corruption institution question, and also for efforts to tackle corruption through international instruments like trade agreements, as Kait discussed in a previous post about the TPP.
These are all excellent and interesting responses. I’ll do my best to take them in turn.
First, I agree that it’s possible compromise will result in an average of the member-state preferences on corruption, rather than adoption of the policy preferences of the state least committed to anticorruption efforts. However, I think the structure of the EAC makes it more likely that the result will at least skew toward the weaker outcome for two reasons: 1) the EALA structure gives each member-state a veto over any legislation, because all five heads of state must assent to the bill, suggesting the dynamic here is more like the UN Security Council than a majoritarian legislative body; 2) the well-defined scope of EALA jurisdiction (as defined in the EAC treaty) may limit the potential for bargaining across topics that might be more common in legislative bodies with plenary jurisdiction.
Second, I have a bit more concern about the appointment process for EALA members than you do. The basic reason I am concerned that those appointed to serve on EALA by member-state governments could be less inclined toward anti-corruption (at least outwardly) is because they are an extra layer removed from the voter’s sanction then are the elected members of the member-state legislature. I suspect that this extra layer between EALA legislators would make it possible for that group to be less responsive to popular opinion than legislators who must face the electorate with regularity to retain a seat in the democratically elected legislature. Of course, this concern is not specific to any current EALA legislator or any legislator in the member states who are appointing EALA legislators, it is just a comment on the appointment structure and how it builds distance between EALA legislators and citizens of member states. Your point that sometimes individuals surprise us with their commitment to a cause is well taken. Indeed, perhaps Speaker Kidega is especially committed to anticorruption and will take the necessary steps to pass regional anticorruption legislation and give it real teeth.
Third, unsurprisingly I am not sure about the answer to your final point. It is important to think about, and I am inclined to think that there is some concurrent jurisdiction when it comes to anti-corruption efforts. Domestic governments certainly have a role to play, but with increasing global connections, we would be remiss to not have broader cooperative schemes among countries to monitor the myriad cross-border activity that occurs each day.
Thanks for your excellent thoughts. Apologies for the many questions I have–they are an indication of how interesting your post is! It seems like this both holds interesting discussions that should be had before these particular provisions go forward and holds wider concerns about international coordination efforts writ large. On your first point, I’m wondering how it would look to create coordinated legislation that is not establishing a ceiling. Would the domestic legislation, if going above and beyond the coordinated version, have to include the same or parallel definitions of offenses and application, for example? Or would it be possible to include a provision that where the domestic legislation could be used to convict a party or make them liable, that provision may be used instead of the coordinated version?
On your second and third points, while enforcement may differ and preferences of members may be toward the status quo of the domestic governing parties, do you think the pressure from other EAC members would make a difference in increasing enforcement levels or getting countries to change their votes in the Community? I wonder if there are or should be any adverse consequences for any members who might try to sabotage the negotiation and implementation efforts. Maybe the answer is no and the result would be a race to the bottom, but would there be any ways to turn that around?
Looking more broadly, though this is beyond the scope of your post, I wonder how the integration of legislation and anticorruption enforcement translates into lessons for the various regional agreements in and including Africa. One question is whether the integration should be piecemeal in steps or should aim for undertakings that reach more broadly. For example, a WTO Working Paper (https://www.wto.org/english/res_e/reser_e/ersd201114_e.pdf) argues that the linear steps to trade integration in African regional agreements (i.e. moving from free trade areas like NAFTA eventually to closer integration like the EU) is less effective than deeper integration efforts would be. In the same way, certainly the intermediate steps on anticorruption integration would be easier to achieve, but perhaps on the whole would be less effective than one major effort. Just in broad strokes, I wonder whether the EAC member group should be an bargaining unit or should look to others to emulate and/or work with. For instance, the Southern African Development Community (SADC), which includes the EAC member Tanzania as well as regional power South Africa, has a Protocol Against Corruption (http://www.sadc.int/documents-publications/show/) that looks like it currently only asks for efforts towards “harmonization” of legislation. The much wider membership of the African Union also has a corruption convention (http://www.au.int/en/sites/default/files/AFRICAN_UNION_CONVENTION_PREVENTING_COMBATING_CORRUPTION.pdf) that aims at the same sort of legislation harmonization. Perhaps the EAC’s measures would or should be a driver for changes in other African integration groups, or maybe “harmonization” is preferable, for some of the reasons you raised.
I’m inclined to think of regional legislation as a floor rather than a ceiling in terms of defining the terms, elements, and penalties for corruptions. That is, the regional legislation could define conflict of interest, and that would be a floor if the member states were free to adopt a broader definition of conflict of interest. Similarly, if the regional legislation called for certain penalties to be imposed when a person was convicted of a corrupt act, an individual member state should be able to impose harsher penalties (consistent with its own body of law and general tenets of human rights). My sense is that because there is no regional prosecuting body (that I am aware of) each country will be prosecuting within its own judicial system, and thus applying their own law, whether that is the floor/ceiling set by EALA legislation or provisions that go beyond what the EALA legislation requires.
This leads right in to your second point on enforcement, which is quite interesting. I do not know enough about the region to know which member state(s) hold(s) the cards in negotiations on this and other topics. EAC and EALA primarily deal with economic issues, and to the extent economic punishment (such as tariffs) could be a sufficient threat to encourage good faith negotiation I doubt that EALA would want to see efforts to remove trade barriers fall to the wayside in an effort to foster stronger anticorruption legislation. I could be wrong about that, but hopefully it’s not the choice that has to be made, as both priorities are important. More generally on the question of potential adverse consequences for failure to enforce regional laws or failure to negotiate in good faith, I have some doubts that even if there were a good way to implement consequences they would be a good idea. Primarily I would be concerned that potential consequences may make any individual country more hesitant to join a cooperative regional body, which might reduce those groups ability to do good in a number of areas.
I agree that the question of how states should work together to achieve shared goals is a fascinating one. Thank you for sharing links to that Working Paper and the relevant conventions. I will definitely check them out!
Thanks for the excellent blog post. I am really intrigued by this idea of binding regional anticorruption legislation. I agree with much of what you’ve said, but I’d like to push back on one of the points you’ve made and offer another solution I’d like to get your thoughts on.
First, I don’t think I fully agree with your race-to-the-bottom point on enforcement. I agree that if we think a single enforcement mechanism won’t work in all five countries, we shouldn’t require them to use it. However, without more I don’t agree with your point about business “forum shopping.” Presumably the relative levels of anticorruption enforcement in these five countries are not the same. Otherwise, why would we be proposing a uniform law anyway? Unless we think the uniformity in anticorruption enforcement will go down when all countries are bound by the EALA law, I don’t think that’s a reason to avoid adopting the law.
Second, to address your point about enforcement resources, what would you think about these five countries coming together to create a regional anticorruption investigation and enforcement body? That body could provide additional investigation and prosecution manpower without superseding the existing domestic enforcement regimes. I think there are a whole host of practical concerns with a body like this one, but it could at least resolve some of the issues you’ve raised above.
I appreciate your pushback on the “race to the bottom” point, Courtney. The concern arises from the likelihood that each country would be obligated to enforce the law within the confines of its existing justice system (as is the case with UNCAC and similar anticorruption conventions). This will probably be the case because criminal justice is beyond the scope of the EAC treaty as I read it, meaning the anticorruption legislation, probably cannot require each country to develop similar investigative and judicial systems for enforcing the law. I hope this helps explain my concern, which I should have made more clear in the original post. Or perhaps this came through and I am missing your point? Sorry if so.
But this does provide a nice segue to your interesting question on regional investigative and enforcement organizations. Even with the standard practical and legal concerns you allude to (sovereignty issues, difficulty of coordinating and operating effectively as a multinational force, etc…) I think this is an idea worth exploring, and one that recognizes that borders mean far less than they used to. A regional investigation and enforcement organization would be a heavy lift, and I am inclined to say that it might be easier—politically and practically—to start with an exclusively investigatory body before adding on an enforcement piece if the first stage were successful. The investigative organization would build on existing cross-border cooperation between law enforcement agencies and might make for a smooth transition to the more comprehensive regional entity you are discussing.
Thanks, Nathan. I’m with you that the practical reasons you just identified mean we might not want to adopt a uniform law. However, it’s your point about business forum shopping specifically that I am struggling with.
Do we think anticorruption enforcement will be MORE uneven after the adoption of the EALA then it is now? If so, I think your point makes sense. Otherwise, I don’t think it works. Presumably laws and enforcement are already uneven, and businesses are already engaging in forum shopping. Unless this law increases the unevenness, while we might get worse enforcement generally, forum shopping itself is likely to go down.
Ah, that point makes good sense. The potential concern is that enforcement could become more uneven if the legislation is not conducive to the judicial system in one or more member states. In other words (and to use an ill-fitting illustration), will the legislation force one or more member states to fit the square peg of its/their domestic justice system into the round hole of the regional legislation. Again, without more material to work with, I do not know if this concern will come to pass or not, but it is a general concern that failure to account for current differences among the states could actually increase the disparity.
Nathan, thanks so much for such an interesting point. It’s unclear to me whether regional legislation, difficult as it might be to fit into a given judiciary, results in uneven enforcement, this would be sufficiently more uneven than the existing situation such that actors are even more prone to forum-shop than they already might be. For instance, it might be that given varying levels of enforcement now, forum-shopping is a problem; introducing regional legislation might mean enforcement remains varied, or that enforcement becomes varied in different or new ways, but at the same time, would it be possible that the variation could be overall diminished? Moreover, could the uniformity of legislation influence the functioning of judiciaries to adapt to become more uniform as well (hopefully not in a race-to-the-bottom kind of situation)?
Great point, Jeanne. It’s hard to know what influence the uniformity of legislation might have on domestic judicial functions without seeing it in practice first, but I could see it going either way. I guess it might be worth distinguishing between the problems caused by uneven enforcement across countries, each of which has its own set of laws, and uneven enforcement across countries, all of which are applying the same law. I’m inclined to think that the latter is worse because it could more directly undermine the strength of the rule of law in other countries by devaluing the statute applicable in all countries. Admittedly, this is more of a though experiment than an assertion based on experience, and I acknowledge that reasonable people could disagree on this point.