One of the main reasons policymakers cite for establishing a standalone, independent anticorruption agency is the need to strengthen the enforcement of their nation’s laws against bribery, conflict of interest, and other corruption crimes. In the past 25 year some 150 countries have created a specialized, independent agency to fight corruption (De Jaegere 2011), and virtually all have been given the lead responsibility for investigating criminal violations of the anticorruption laws. But while a broad international consensus exists on the value of creating a new agency with investigative powers, opinion remains sharply divided on whether these agencies should also have the power to prosecute the crimes it uncovers. As this is written, Indonesian lawmakers are considering legislation to strip its Corruption Eradication Commission (KPK) of the power to prosecute while a bill before the Kenyan parliament would grant its Ethics and Anticorruption Commission (EACC) the power to prosecute the cases it investigates.
No matter the country, debate about whether a single agency should have the power to both investigate and prosecute corruption cases inevitably comes down to a small set of conflicting claims. Those who oppose giving a single agency both powers raise an argument at the center of the older debate about the relative responsibilities of police and prosecutors — investigator bias. In the words of a British Royal Commission that studied the relationship between English police and prosecutors, an investigator “without any improper motive . . . may be inclined to shut his mind to other evidence telling against the guilt of the suspect or to overestimate the strength of the evidence he has assembled.” That is, once an investigator hones in on a suspect, confirmation bias sets in, and he or she will interpret all evidence as supporting the suspect’s guilt. Putting the decision about whether to prosecute a case in an agency wholly separate from the one that investigates provides a strong check against such bias, reducing the chances that the innocent will be put to a trial or weak cases brought to court.
The investigator bias argument has a long and distinguished pedigree, and a 2011 survey of the powers of 50 anticorruption agencies by World Bank economist Francesca Recanatini found that it often carries the day. Only half of the 50 agencies she surveyed have both investigative and prosecutions powers. But as the contemporary debates in Indonesia and Kenya suggest, proponents of combing investigation and prosecution in a single agency have a very powerful counter argument in their corner.
A quarter century of experience with both anticorruption agencies shows that those with the responsibility for both investigating and prosecuting corruption are likely to be more effective in enforcing the anticorruption laws. One obvious giveaway is to look at who backs and who opposes the proposed Indonesian and Kenyan legislation. In Indonesia the drive to take away the KPK’s power to prosecute is led by those who want to weaken the agency; it is opposed by civil society groups, the media, and others who support vigorous enforcement of the nation’s anticorruption laws. In Kenya the legislation to give the EACC prosecution power is backed by the Kenyan chapter of Transparency International and others wanting the nation’s corrupt elite prosecuted and convicted; it is bottled up in a parliament where many suspect the integrity of the majority has been compromised.
To be sure, some anticorruption agencies have succeeded without having prosecutorial powers, the Hong Kong and Singapore agencies being notable examples; at the same time there are many examples where agencies possessing both investigative and prosecutorial power have been ineffective. But by and large dividing the powers between two agencies makes the effective enforcement of the anticorruption laws all the more difficult to achieve.
The reasons are several. First and foremost is that unlike robbery, homicide, and other “street crime,” where the facts and the law are relatively straightforward, corruption offenses are complex, involving often convoluted and obscure transactions that raise complicated factual and legal issues. As then Director of South African’s National Prosecution Service Bulelani Ngcuka told a conference on modern criminal justice in 2001, in such cases it is critical “that the prosecutor who will ultimately conduct the prosecution [be] intimately involved in the investigation of the case [so that he or she] can exercise greater control over how the evidence is collected and can ensure that the evidence will be found to be admissible in court.” Housing prosecutors in a separate agency makes it very hard, if not impossible, to realize this involvement. (As an aside, the Scorpions, the nickname of the team of prosecutors and investigators Ngcuka oversaw to investigate and prosecute high level corruption, were so successful that the targets of their efforts succeeded in having them disbanded.)
Effective enforcement of all laws demands, as the Britain Attorney General told the House of Commons during its review of police-prosecutor relations, “a close, professional, and robust relationship” between investigators and prosecutors. But again, if the two are in separate agencies, this goal is all the harder to achieve. When prosecutors decline to prosecute a case an investigator has worked long and hard developing, it is easy for the investigator to treat it as a personal slight. Furthermore, prosecutors often need a good deal of time to review a lengthy file, but delays are commonly seen by civil society as a lack of commitment to prosecuting corruption case or, when after a delay the file is rejected, that corruption has have infected the review process.
Identifying who is accountable for weak enforcement of the anticorruption laws is virtually impossible when responsibility is split between two agencies. Investigators say weak enforcement is the prosecutors’ fault; they are refusing to prosecute solid cases. Prosecutors point the finger at the investigators, saying the cases they present are weak. As happened so often in the past in Kenya, the head of the anticorruption agency and the head prosecutor can get into a public spat over who is to blame, leaving the public unsure who is at fault while poisoning relations between working level staff in the two agencies.
Investigator bias is a real concern, but there are ways to address it short of putting the responsibility for investigation and prosecution in separate agencies. Close monitoring by the legislature or an independent review commission is one solution. Procedural changes that allow courts to weed out weak cases early in the process are another. And of course better, and public, data on the outcome of investigations will allow all to see if investigator bias is present. How many investigations matured into court cases? What percentage of cases resulted in acquittal? Dismissal at an early stage in the proceeding? Conviction?
After studying police-prosecutor relations in a number of countries, another of Britain’s many Royal Commissions tasked with recommending reforms to the criminal justice system concluded that no organizational arrangement “so clearly succeeds in resolving the problems which arise in any system of criminal justice that it furnishes an obvious model which all others should adopt” (chapter 1, para 13). That may be the case with the much broader question of how to structure police-prosecutor relations, but on the narrower question of whether anticorruption agencies should have both the power to investigate and prosecute, 25 years experience across a wide range of countries with different legal traditions points clearly to the need to consolidate these powers in a single agency.