Depoliticizing the Removal of Heads of Anticorruption Agencies

In December 2017, a civil society organization that aligns itself with Philippine President Rodrigo Duterte made good on its threat to submit an impeachment complaint against Conchita Carpio Morales, head of the Philippines’ independent anticorruption agency (ACA), known as the Office of the Ombudsman. This came after President Duterte himself called for the impeachment of Ombudsman Morales, publicly accusing her of engaging in “selective justice” and of being part of a “conspiracy” to oust him. Notably, President Duterte leveled these accusations at a time when the Office of the Ombudsman had opened an investigation into the Duterte family’s alleged hidden wealth, and into a multi-billion peso illegal drug trafficking case that implicates President Duterte’s son. This is hardly a unique case. In Nigeria, Nepal and Ukraine, among other places, conflicts between politicians and ACA heads have resulted in the latter’s actual or threatened removal.

Unfortunately, most countries place the decision whether to remove an ACA head in the hands of their politicians (see here and here). The Chief Executive often plays a key role in removals—sometimes on his or her sole authority (as in Afghanistan, Brazil, Botswana, South Korea, Mexico, Singapore, and Tanzania), or in conjunction with the legislature (as in Uganda and Lithuania) or a judicial body (as in Ghana and Kenya). In most other cases, the power of removal is exercised by parliament or any of its members or ministers, often through an “impeachment” process of some kind. Only Barbados, Bangladesh, and Yemen have removal procedures for ACA heads that are strictly and purely judicial in nature.

While there are, at present, no universally-accepted standards against which ACAs are measured, the non-binding 2012 Jakarta Statement on Principles for Anti-Corruption Agencies lays out principles for states to follow in establishing or maintaining effective ACAs. The Jakarta Statement’s position on appropriate procedures for removing an ACA head may be influential in shaping how at least some countries address this issue. And because the Jakarta Statement is currently being revisited (see here and here), now is an opportune time to consider revising its provision regarding the removal of ACA heads.

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Dispatches from the UNCAC Conference of States Parties, Part 1: Revisiting the Jakarta Principles of Anti-Corruption Agencies

Last month, the UN Convention Against Corruption (UNCAC) Conference of States Parties (COSP) was held in Vienna, Austria. In addition to the formal meetings of government representatives, the COSP also featured a number of panels, speeches, and other side events, at which leading experts discussed and debated a range of anticorruption topics. GAB is delighted that Northwestern Pritzker School of Law Professor Juliet Sorensen and her student Kobby Lartey, who attended the COSP, have offered to share highlights of some of the most interesting sessions in a series of guest posts. Today’s post is the first in that series.

Though specialized anticorruption agencies (ACAs) are dismissed by some as redundant or ineffective, last month’s COSP panel on “Revisiting the Jakarta Principles: Strengthening Anti-Corruption Agencies’ Independence and Effectiveness” made a strong case for ACA’s importance to the fight against corruption. (The Jakarta Principles are drawn from a 2012 statement drafted by anticorruption practitioners and experts from around the world; these broad, aspirational principles help anticorruption to protect themselves, and to offer inspiration for their work.) The panel, which included ACA commissioners from Indonesia, France, Romania, and Burkina Faso, as well as representatives from Transparency International, the UNODC, and UNDP, the panel highlighted the diverse struggles and successes of member states’ ACAs. Continue reading

When Should We Put Anticorruption Agencies in the Constitution?

To fight corruption more effectively, many countries have created specialized government institutions that focus primarily on corruption issues. Most common are specialized anticorruption agencies (ACAs) with investigative and/or prosecutorial functions, although some countries have also created specialized anticorruption courts, special coordinating bodies, or other entities. This trend has generated a great deal of debate, both about whether to create such specialized bodies at all and about how they should be designed (for example, whether ACAs should combine prosecutorial and investigative power). Absent from much of this debate, however, is a discussion of the means countries should use to create these specialized bodies—in particular, whether these specialized anticorruption bodies should be enshrined in the nation’s constitution, or should be created by ordinary law.

Anticorruption bodies vary quite a bit on the extent to which they are constitutionalized. Most existing ACAs and other anticorruption institutions—including many considered highly successful—are not mandated by the constitution. For example, Indonesia’s anticorruption agency (the KPK) and its anticorruption courts (the Tipikor courts) were created by ordinary legislation, as was Belgium’s anticorruption investigation body and Spain’s anticorruption prosecutor’s office. However, in other countries specialized anticorruption bodies are explicitly established (or required) by the constitution. For example, the Philippines’ anticorruption court, the Sandiganbayan, is enshrined in that country’s 1987 constitution. Indeed, the trend (if one can be discerned) seems to be in the direction of constitutionalization. Tunisia’s new constitution, adopted in 2014, includes a specialized anticorruption investigation body. Egypt’s 2014 constitution similarly includes a specialized anticorruption prosecutor. Mexico’s 2015 amendments constitutionalized three types of anticorruption agencies (investigative, prosecutorial, and judicial), as well as a coordinating body.

But should these agencies be constitutionalized? And if so, when? Continue reading

Guest Post: Fishing for the Right ACA Heads, and Keeping Them Safe

Sofie Arjon Schütte, Senior Advisor at the U4 Anti-Corruption Resource Centre, contributes the following guest post, adapted from her recent U4 research paper, “The fish’s head: appointment and removal procedures for anti-corruption agency leadership”:

There has been much discussion on this blog (see here, here, and here) about the requirements for an effective, independent anticorruption agency (ACA). A number of factors are important, including (as emphasized in the Jakarta Statement) the ACA’s mandate, permanence, budget security, autonomy over financial and human resources, and internal and external accountability mechanisms, to name a few. But among the many important factors, the procedures for appointment and removal are particularly critical. As the saying goes, “a fish rots from the head down”: when the leadership of an organization is unethical or ineffective, these failings infect the entire organization. Undue external interference with an ACA is likely to target the head, and a co-opted or corrupted ACA head can do serious damage to the effectiveness and reputation of the ACA.

My research on the appointment and removal procedures for heads of 46 ACAs around the world has highlighted some of the important factors that can promote or undermine effective, ethical, and independent ACA leadership. Given different contexts, no specific set of procedures for appointments and removals can be considered ideal for all environments. Nevertheless, some general guidelines are possible: Continue reading

More on International Principles for Anticorrution Agencies: A Cautionary Example from Human Rights?

In my last post, I raised questions about the 2012 Jakarta Statement on Principles for Anticorruption Agencies (ACAs). My main concerns were (1) that many of the principles were framed in such open-ended and flexible terms that they failed to really commit to anything in particular; (2) that a number of the principles that do endorse concrete criteria are questionable on substantive grounds; and (3) the statement failed to acknowledge or address a key tension between its calls for more mechanisms to promote ACA independence and its call (in more general terms) for mechanisms to preserve accountability and prevent ACAs from abusing their power. Here I want to follow up on the first concern, and highlight recent research on the effect of the 1991 Paris Principles on the Design of National Human Rights Institutions (NHRIs).

The comparison between the Jakarta Statement and the Paris Principles is apt. Samuel De Jaegere, a UN official and one of the main proponents and advocates of the Jakarta Statement, published a 2012 article outlining principles for anticorruption agencies, which the Jakarta Statement itself tracks closely, though not precisely. (I am not sure whether De Jaegere’s paper formed the basis of the Jakarta Statement, or whether both the paper and the Statement were the result of ongoing behind-the-scenes discussion and dialogue, but they are clearly related.) De Jaegare’s article specifically references the Paris Principles for NHRIs as a model that ACAs could follow, and goes so far as to suggest that the voluntary “accreditation” system that the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC) has created for NHRIs (in which letter grades are assigned based on the degree of compliance with the Paris Principles) could be emulated for ACAs. As De Jaegere puts it, “The main lesson learnt from NHRIs for ACAs is: a set of principles and a monitoring mechanism may strengthen the independence, effectiveness and success of ACAs.”

That sounds appealing, but recent empirical research on the actual impact of the Paris Principles should give us pause. That research, by Katerina Linos of Berkeley Law School and Tom Pegram of University College London, suggests that while the Paris Principles appears to have succeeded in promoting adherence to the Principles’ fixed terms (in both democratic and authoritarian states), the results were quite different for those Principles framed in more flexible, open-ended terms: For those provisions, implementation generally did not improve, and in authoritarian states adherence to those Principles articulated in flexible language sometimes actually worsened. Linos and Pegram speculate, plausibly in my view, that states responded strategically to the Paris Principles, redirecting their efforts toward tasks that were specified in firm, precise, unconditional language (where there would be less room for dispute about compliance), and away from the more amorphous, open-ended tasks.

Linos and Pegram’s paper is clever, in part because they have found (or believe they have found) a clever way around an inferential problem that ordinarily bedevils efforts to assess the impact of international agreements on state behavior. Their results, insofar as we believe that they are valid, may have important implications for how we think about attempts to emulate the approach to international assessment of NHRIs for ACAs. Let me say a few words about each. Continue reading

The Jakarta Statement on Principles for Anti-Corruption Agencies: A Critique

In response to one of my early posts (from over a year ago) on the problem of politicized anticorruption enforcement, Samuel De Jaegere of UN Office of Drugs & Crime (UNODC) helpful drew my attention to the Jakarta Statement on Principles for Anti-Corruption Agencies, a non-binding resolution promulgated by representatives of anticorruption agencies (ACAs) from around the world. The Statement was endorsed by the International Association of Anti-Corruption Authorities at its Panama meeting last year, and noted (though not explicitly endorsed) also by the United Nations Convention Against Corruption (UNCAC) States Parties in its most recent resolution on the prevention of corruption.

I’ll admit that although I’d heard references to the Jakarta Statement before, I’d never actually read it. Now I have. I’m not quite sure what to make of it. On the one hand, I recognize that this is a political document, rather than an analytical document, and perhaps as a political document it will achieve its intended purpose, and do some good in the world in the process. After all, an international manifesto that affirms the importance of preserving the independence and authority of anticorruption enforcement is likely valuable, and perhaps the Jakarta Statement will prove useful — or perhaps has already proved useful — for beleaguered anticorruption agencies and their supporters to defend against attacks and to build up legitimacy.

On the other hand, as an operational document and guide to institutional design, I have to say I found the Jakarta Statement to be mostly unhelpful and/or simplistic. I want to be cautious in how I phrase this, because I am sympathetic to and respectful of the motivation behind the Jakarta Statement, and I don’t have enough of a sense of the nuances of international politics and norm diffusion to be able to evaluate its actual impact on the world. But taking it on its own terms as a set of institutional principles and guidelines, I was disappointed. I think the international community can and should do better when outlining the basic principles and objectives for ACAs. In the spirit of playing Devil’s Advocate, in the hopes of stimulating some critical debate on this critical issue, let me lay out my critique of the Jakarta Statement as it currently stands: Continue reading