Judicial corruption is a serious problem, one that threatens further progress on a range of other good governance and institution-building initiatives. According to Transparency International’s 2013 Global Corruption Barometer, citizens around the world perceive the judiciary as the second-most corruption-prone sector (after the police). That depressing figure is a worldwide average; in some countries, the situation is even worse. For example, a recent study by the International Bar Association in Cambodia (discussed at greater length here) reported that Cambodian lawyers estimated that bribes are paid to judges or clerks in 90% of cases. Some renowned judges and legal experts have taken the matter in their own hands at the international level by creating the Judicial Integrity Group and developing the Bangalore Principles of Judicial Conduct. However, the implementation of the Principles remains a major challenge in many countries.
One way to help fight corruption in the judiciary would be to incorporate anticorruption more explicitly and comprehensively into judicial capacity assessments. Many development partners have already created tools and methods to assess the judiciary, but with a few exceptions, these evaluation tools rarely focus on corruption. Moreover, these judicial assessments tend to be externally driven, meaning that their recommendations often do not generate a sense of ownership on the part of the judiciary being evaluated, and there is therefore often too little follow-up.
So what more can we do? Fortunately, there are some lessons we can draw from UNDP’s capacity development work for other institutions and sectors, such as National Human Rights Institutions and anticorruption agencies, while keeping in mind some of the specific characteristics of the judiciary. UNDP’s recent report A Transparent and Accountable Judiciary To Deliver Justice for All, produced jointly with the U4 Anti-Corruption Resource Centre, illustrates how experiences from around the world can help promote judicial integrity. The report also suggests some general principles that could guide capacity assessments of the justice sector and follow-up implementation strategies:
- Make the judicial “evaluation” process a capacity development exercise, not merely an evaluation. Evaluations look to the past. Capacity assessments look towards the future: what skills and processes, or capacities, does the organization need to build if it is to be as effective as possible in the future? Are the oversight processes in the judiciary sufficient to mitigate organizational risks to integrity?
- Ensure that the capacity assessments are owned and driven by the judiciary itself. The organization being assessed should evaluate its organizational challenges; the role of external experts should be limited to facilitating the assessment. This means that the responsibility for prioritizing the organizational challenges and the development of an integrity action plan in the judiciary lies with the organization being assessed. Also the results from the capacity assessment can remain confidential, unless the organization wishes to publicize them.
- Involve judges and legal practitioners from other countries who have faced similar challenges to foster South-to-South exchange. Considering the difficulty of overcoming corruption in the judiciary it is essential that the expert team facilitating the self-assessment includes judges and legal practitioners, preferably from the same region, who have faced similar challenges in their countries and are able to advise on how they have overcome them.
- Have a participatory and inclusive capacity assessment. The capacity assessment gathers the views and feedback of different levels within an organization – the chief justice, judges, lawyers and clerks, as well as administrative and finance staff. Ideally the capacity assessment should also consult actors outside of the judiciary—such as association of judges, relevant civil society organizations, and court users—to get feedback on their experience with accessing to justice.
- Undertake a capacity assessment that directly feeds into a reform process with the development of an integrity action plan by the organization itself. The capacity assessment is a starting point to support the judiciary in formulating an action plan to develop its integrity and organizational capacities. When formulating the action plan, it is important to avoid generating a long list of wishful recommendations; rather, the action plan developed by the judiciary aims should include a practical list of reforms that are grounded into the organizational context.
- Ground the results from capacity assessments in normative and policy frameworks. The action plan developed as a result of the capacity assessment should be closely tied to the broader judicial reform strategy of the country. The process of developing the action plan also provides an opportunity for countries to align their judicial integrity mechanisms with Article 11 of the United Nations Convention against Corruption (UNCAC) before the start of the next UNCAC review cycle.
The Justice for All report calls on judicial systems around the world to promote transparency and accountability by opening up their institutions to scrutiny from peers from other countries. The above suggestions will help ensure that steps in this direction help produce effective anticorruption reforms. UNDP, along with its partners, stands ready to support judiciaries that are committed to going beyond simply agreeing on general principles of independence and integrity, and ready to engage in serious, critical self-assessments and to develop a practical reform agenda.