A Cautious Challenge to Constitutionalizing Anticorruption Commissions

Anticorruption commissions (ACCs) have had a turbulent history as a mechanism for fighting corruption. While some, such as those in Hong Kong and Singapore, have effectively executed their mandate to investigate and prosecute instances of graft, bribery, and other forms of corruption, others ACCs have been criticized as toothless, inefficient, or themselves corrupt. The failure of most African ACCs, in particular, has left some wondering whether these institutions were worth the trouble.

One influential view holds that the key to making ACCs more effective is constitutionalizing them. While a handful of countries began incorporating constitutional provisions on ACCs back in the 1980s, the trend towards constitutionalization accelerated in the 2010s. This practice reflected an emerging consensus in the anticorruption community. The 2012 Jakarta Statement on Principles for Anti-Corruption Agencies, for example, recommended that in order to ensure “independence and effectiveness,” ACCs should “be established by proper and stable legal framework, such as the Constitution.” Transparency International highlighted constitutionalization as a best practice in ACC design in 2014. That same year, a joint report by International IDEA, the Center for Constitutional Transitions, and the UN Development Programme (UNDP) cited a “growing international consensus” around the wisdom of enshrining ACCs in the constitution. And in the seven years since that report, some of the most high-profile, internationalized constitutional processes—including those in Tunisia (2014), Nepal (2015), Yemen (2015) Sudan (2019), and Algeria (2020)—have included an ACC in their interim or permanent constitutions. By my count, the number of countries that have an explicit constitutional provision mandating an ACC now stands at 23 and counting.

Does constitutionalizing the ACC help in the way that proponents hope? Are the benefits of constitutionalizing these institutions large enough to justify their inclusion in such a diverse range of constitutional processes? Possibly—but possibly not. The evidence is murky and inconclusive, but there are some reasons to doubt whether constitutionalization can overcome the obstacles that have limited the effectiveness of ACCs in the past.

  • First of all, many of the issues facing ACCs are not rooted in their legal authority, but in their ineffectiveness in enforcement. If that is so, then constitutionalization may not address the core problem. To put this another way: The effectiveness of an ACC (constitutionalized or not) depends on factors that the constitution cannot control, such as political will and the larger institutional environment. If that environment suffers from clientelism, capture, lack of proper resources or skilled workers, or other widespread maladies, the ACC is likely to inherit all those problems, regardless of whether the ACC is constitutionally mandated. Consider, by way of illustration, Kenya. Kenya’s 2010 constitution replaced the defunct Kenyan Anti-Corruption Commission (KACC) with a new body, the Independent Ethics and Anti-Corruption Commission (IEAC). In doing so, the 2010 constitutionally entrenched an ACC for the first time in Kenya’s history. But the IEAC proved no more effective than the KACC had been, and it failed for similar reasons, such as parliamentary refusal to grant the IEAC the prosecutorial authority it needed to carry out its mission. We see something similar in Zimbabwe, where the constitutionally mandated ACC has been unable to carry out its mandate, notwithstanding its new constitutional status. Kenya and Zimbabwe’s experiences demonstrate that constitutional change is sometimes not enough to overcome a weak or hostile institutional environment.
  • A related point here also bears mention: It is sometimes assumed that constitutional provisions command and receive respect and compliance. But this is not universally true. Where there is a broad lack of respect for the rule of law and the constitution generally, then it is unlikely that constitutionalizing the ACC will make all that much difference. This factor is one of the key reasons that, for example, Swaziland’s constitutionalized ACC has proved so ineffective.
  • Finally, in addition to these reasons for caution as to whether constitutionalizing an ACC will make it more effective, it’s worth also taking into account that in some situations, constitutionalizing an ACC can actually generate new structural problems that would not exist had the ACC been created through ordinary legislation. Constitutionalizing an ACC entails the risk of excessively curtailing flexibility with respect to the design and function of this institution, which might impede the ACC’s capacity to respond to evolving challenges and circumstances, and make it harder for the government to reform the ACC to improve its performance. Constitutionalization may also make it harder to replace or radically reform a failed or failing ACC, as doing so might require a constitutional amendment (or a new constitution).

To be clear, there are certainly many benefits to constitutionalizing an ACC. These include giving the ACC the institutional prestige it needs to attract skilled and experienced officers; making it more difficult for governments to defund the ACC or curtail its jurisdiction; insulating the ACC from allegations of unconstitutionality; and providing a guarantee in the highest law of the land that the ACC is independent and autonomous. But as the experience of the past few decades has demonstrated, constitutionalization has its limits, especially in a hostile institutional environment with a weak constitutional culture, and can sometimes create additional problems on its own. While constitutionalization may sometimes be helpful, this approach should be considered with more caution, and with open eyes to its limitations.

3 thoughts on “A Cautious Challenge to Constitutionalizing Anticorruption Commissions

  1. The situation in Kenya has changed markedly for the better in the last couple of years. The EACC has confiscated and returned significant assets following convictions. These successes have been coming over several years, it takes time to investigate and gather evidence. Changes to legislation and some institutional reform have taken place, but far more important, has been implementation of the law. It may be, therefore, that the constitutional status change in 2010 has been a factor which has taken time to take effect. The success of Kenya’s EACC is worthy of further study in this regard.

  2. Corrections required on Nepal: ACA in Nepal got constitutionalized a way back in 1975 giving it a sweeping power to investigate, prosecute and adjudicate corruption crimes. However, with the advent of multiparty democracy in 1991, ACA power got reduced to investigation and prosecution. Adjudication function to be handled by the Court. The Constitution in 2015 further reduced ACA mandate to investigate and prosecute corruption crimes only. In 1991, it had a mandate to investigate and prosecute “improper conduct” and “corruption” in the public sector bureaucracy. To sum up, there are variations in constitutional roles and responsibilities of Nepalese ACA, I would say, with little or no impact on ACA performance.

  3. Of course constitutionsing ACC is useful and essential! It only does not work if the constitution is badly written! At the very least, the constitution should ensure the independence of ACC so that it can be freed from political interferences, which is the key unsuccessful factor of ACC.

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