Tag Archives: specialized anticorruption agencies

A Cautious Challenge to Constitutionalizing Anticorruption Commissions

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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.

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When Should We Put Anticorruption Agencies in the Constitution?

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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 →