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.

Continue reading