Today’s guest post is from Franklin De Vrieze, a Senior Governance Advisor for the Westminster Foundation for Democracy (WFD), a UK public body that works with parliaments, political parties, and civil society groups to promote fairer, more transparent, and more accountable democratic political systems.
In many countries, especially developing or transition countries, an independent anticorruption agency (ACA) is an important part of the country’s national anticorruption strategy. Today, there are more than 100 ACAs around the world, and though there are many different types of ACAs—some have only preventive and policy coordination roles—many ACAs have law enforcement powers (investigation and/or prosecution). To be effective in carrying out these law enforcement responsibilities, particularly when dealing with high-level corruption, ACAs must be sufficiently independent and sufficiently powerful. At the same time, though, the interest in autonomy may sometimes be in tension with other interests. For one thing, an ACA needs to maintain constructive working relations with state bodies dealing with corruption, including courts and the police. For another, accountability is also important. Any entity with law enforcement powers might wield those powers abusively, and in extreme cases, one must worry about the politicization of ACAs
What is the appropriate role of the parliament in addressing these challenges? Somewhat surprisingly, relatively little has been written on this topic. Relatively few ACAs report directly to parliament, probably due to understandable concerns regarding the need for independence from politicians who might themselves be the target of anticorruption investigations. Yet some have argued that for ACAs to be effective, they must be overseen, at least to some degree, by multiple external bodies, including parliament. More generally, in a democracy parliament will often bear ultimate responsibility for establishing measures that guarantee ACA independence but that also provide for sufficient ACA accountability.
In order to assist researchers and the democracy assistance community in optimizing parliament’s relationship to an ACA, the Westminster Foundation for Democracy (WFD) has recently published a research paper on parliament and independent oversight institutions (including ACAs), together with a companion assessment framework for the analysis of the relationship between parliaments and independent institutions. The assessment framework, which is rooted in existing international and comparative standards such as the Jakarta Statement on Principles for Anti-Corruption Agencies, focuses on four main aspects of parliament’s relationship with the ACA:
- First, has parliament established a legal framework for the ACA through primary legislation, legislation that (among other things) guarantees independence, provides a clear and strong mandate, and appropriately regulates the ACA’s relations with other state and public authorities?
- Second, what is parliament’s role in the selection, appointment, and removal of the ACA’s leadership? Has parliament provided for timely and merit-based selection of ACA’s senior officials, as well as a fixed term in office?
- Third, what is parliament’s role in approving or reviewing the ACA’s budget? Has parliament given the ACA the authority to prepare its draft annual budget, with guarantees that the executive will not hamper the execution of that ACA’s budget? And does parliament ensure that the ACA is allocated adequate resources to fully perform its functions?
- Fourth, is the ACA required to submit an annual report to parliament and/or the government, and what is the structure and content of this report, and does parliament have a responsibility to put this report on the agenda and consider its recommendations? And does the ACA have the authority to submit information and reports on its own initiative to parliament?
The parliament must meet these criteria to fulfil its intended role as the guarantor of the ACA’s independence, effectiveness, and accountability. To get a sense of how these criteria might apply in concrete settings, here are summaries of the WDF’s assessment of the parliament-ACA relationship in four European countries (Lithuania, Slovenia, Serbia and Ukraine):
- Lithuania: Shortly after regaining independence in 1990, Lithuania established the Special Investigation Service (SIS), which carries out both anticorruption investigations and outreach campaigns. SIS reports are considered by Parliament on an annual basis, and topical reports on specific corruption issues receive widespread media coverage. In addition to the SIS, several other bodies address various aspects of anticorruption strategy. An inter-ministerial committee coordinates the state’s anticorruption activities. There is also a Chief Institutional Ethics Commission (which governs conflict of interest of high public officials), a special anticorruption office within the Prosecutor General’s Office, and specialised law enforcement units within the Ministry of Interior. Lithuania’s anticorruption efforts are based on the 2001 Law on Prevention of Corruption and an overall National Anti-Corruption Programme, and the overall approach is overseen by the Lithuanian Parliament’s Anti-Corruption Committee. This Committee reviews the reports of the different anticorruption institutions, acts as the scrutiny committee for new legislation relevant to anticorruption, and reviews legislation for its anticorruption implications. The Committee can also receive citizen complaints. Lithuania’s model strikes a balance between the need to allow independent professional bodies to address corruption with the need to monitor the overall functioning of the individual anticorruption institutions and the overall system. This approach establishes an effective role for the Parliament.
- Slovenia: In 2004, Slovenia adopted a National Anti-Corruption Strategy and created a Commission for the Prevention of Corruption (CPC), which combines the roles of prevention, investigation, and civic education. After a preliminary investigation, though, dossiers are handed over to the police for full investigation, and the regular state prosecution service retains the authority to prosecute corruption case. The CPC thus supports the work of the regular law enforcement and justice systems, rather than supplanting them. The CPC is directly accountable to parliament. The members of the CPC are elected by parliament following nomination by the Slovenian President (for the chair and deputy chair of the CPC), the government (one member of CPC), the judicial council (one member of CPC) and the parliament itself (one member of CPC). The Slovenian Parliament has established a special committee with the responsibility to coordinate and following up on the CPC’s work. The CPC reports annually to this committee, and also produces ad hoc reports on specific issues at the request of the parliament and the government, among others. The reports produce comprehensive discussion and meaningful follow up in parliament, and indeed review of these reports is one of the Slovenian parliament’s mechanisms for overseeing the executive.
- Ukraine: Ukrainian law stipulates that the National Anti-Corruption Bureau (NABU) report to Parliament twice per year to the Parliament. The law provides very detailed instructions regarding the content of the reports and the data that the NABU must deliver. However, the parliament’s performance in discussing and following up on NABU’s reports is rather poor.
- Serbia:The Anti-Corruption Agency of Serbia (ACAS) submits annual reports to the Serbian parliament. However, between 2014 and 2018, although some of these reports have been discussed in parliamentary committees, the Serbian Parliament had not considered the reports, or the committees’ draft recommendations based on those reports, in plenary sessions. In July 2019, for the first time in five years, the ACAS’ annual report was debated and adopted in plenary session. It underscores the vulnerability of ACAS, meaning that it can only be effective if it has a productive working relationship with the parliament.
In these countries, the biggest difference between the more successful cases (Lithuania and Slovenia) and the less successful ones (Ukraine and Serbia) is the degree of parliamentary follow-up on the ACA’s reports. The ACAs in each of these four have a clear mandate, sufficient guarantees of independence, and funding from the state budget. But in the former two countries, the parliament’s consideration of ACAs’ regular and special reports is a key mechanism for both enabling the ACAs to fulfil their mandate and ensuring their accountability. A parliament that protects the independence of the ACA and enables it to function with a strong mandate and leadership contributes to corruption prevention and law enforcement, but a weak parliament that doesn’t exercise its oversight role will ultimately undermine the ACA’s effectiveness.