Today’s guest post comes from an independent anticorruption expert based in West Africa, who writes under the pseudonym Girolamo de Lys and can be contacted at firstname.lastname@example.org:
A fortnight ago, at a donor roundtable in Paris, the international community—principally the World Bank, EU, France, and United States—promised US$12.4 billion, to be spent over the next four years, in support of Burkina Faso’s national development plan. Hailed as a great success, the conference surpassed everyone’s expectations and raised more than double the target of US$5.8 billion set by the Government of Burkina Faso. Part of the roundtable’s success can be explained by the fact that Burkina Faso is seen as a promising emerging democracy. The country’s 27 years of autocratic rule ended in October 2014 with a popular uprising, and in 2015, the Transitional Government and National Council adopted a series of laws reforming the country’s governance system and bolstering its rule-of-law credentials. These reforms included a new anticorruption law (adopted in March 2015), which prohibits officials from accepting gifts worth more than US$60, and another law strengthening the anticorruption body (adopted in November 2015). Both anticorruption laws are considered by experts as “the most advanced” anticorruption laws in West Africa. However, in recent weeks these laws have come under stress, as they started to show their teeth. As the anticorruption body has opened investigations into the receipt of gifts by members of parliament, some politicians have questioned the desirability of this new anticorruption framework, and the survival of these new laws is now at stake.
The Constitutional Review Commission, set up by the President of Burkina Faso to propose amendments to the Constitution, is now deliberating whether to propose scrapping or watering down the constitutional provision that sets up the anticorruption body and its accompanying organic law. The constitutional revisions will be put to Parliament in early 2017 and some MPs are likely to see this as their chance to finish off an institution capable of scrutinizing their day-to-day conduct and that of the government. If the executive and legislative power of Burkina Faso decide to tinker with the anticorruption laws, by all accounts this will end the anticorruption body’s independence and effectiveness, and end one of the sole adequately established anticorruption legal frameworks in West Africa. Moreover, without an effective anticorruption system in place, the international community’s planned US$12.4 billion investment in Burkina Faso will be at risk of being diverted to private use, rather than contributing to national development projects.
As the international community engages in a constructive dialogue with the Government of Burkina Faso, it ought to consider the following strengths of the current anticorruption system in place and seek its protection from unnecessary legal amendments:
- The Anti-Corruption Act establishes criminal offenses fully in line with international anticorruption treaties ratified by Burkina Faso. Indeed, the Review Mechanism of the UN Convention Against Corruption (UNCAC) noted approvingly in its country review report of Burkina Faso in 2016 that, “[t]his new Anti-Corruption Act is almost an exact copy of the provisions on criminalisation and law enforcement in Chapter III of the Convention.”
- The Constitution of Burkina Faso enshrines the independent nature of the anticorruption body in line with international requirements, notably UNCAC Articles 6 and 36. The Constitution currently states that the country’s “Superior Authority for State Control and the Fight against Corruption,” abbreviated ASCE-LC, is the supreme body for administrative control and the fight against corruption, and it has the status of an independent administrative authority (Article 160.5).
- An organic law fixes the powers, composition, organization, and the functioning of the ASCE-LC. That organic law comprises 69 articles with multiple provisions intended to ensure that the ASCE-LC is both independent and effective. For example, the ASCE-LC has judicial police powers that allow it, with the appropriate court orders, to undertake house searches, to seize and freeze assets, and to arrest suspects. The President of the ASCE-LC is selected following a public call for candidatures by a nine-member committee (the guiding council) comprised of public officials, private sector and civil society representatives. The President of the ASCE-LC has a five-year non-renewable mandate that is irrevocable unless he or she commits a grave mistake that is considered as such by the guiding council. Furthermore, the ASCE-LC has budgetary autonomy through a legally guaranteed budget of 0.1% of the national budget, which should correspond to approximately US$2.5 million annually in the current context. Finally, the ASCE-LC publishes an annual report. All in all, the organic law is fully in line with international principles, such as the Jakarta Principles on Anti-Corruption Agencies. It can be recommended as model legislation for other civil law countries.
In West Africa, no country has as robust an anticorruption legal framework as Burkina Faso. This legal framework is very recent–less than one year old. It will only completely enter into force in February 2017. It is extremely important to give these laws a chance to be implemented. These laws provide Burkina Faso an opportunity to reduce the prevalence of corruption in the country. Moreover, the practical enforcement of these laws is likely to set an example beyond Burkina Faso’s borders. If successfully implemented, the Burkina Faso model could inspire other countries in the region to adopt similar legislation. However, if the wings of these laws are clipped before they even start to take off, then the status quo will prevail. If the international community seeks to ensure a responsible use of its tax payer’s money in Burkina Faso, then the ASCE-LC’s preservation in Burkina Faso’s Constitution is essential and ought to be a fundamental pre-condition for its financial support to Burkina Faso’s national development plan 2016-2020.