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.