FAQs:

Corruption and possible cures:

National (local) anti-corruption strategies and policies

The political will to fight corruption

Leadership within government is critical in both driving a reform programme and in leading by personal example.

However, electing an honest head of state or government does not necessarily guarantee the launch and implementation of an effective reform programme: support from a broad section of society is critical to its success, or failure. Champions of reform must also muster commitment from a wide variety of constituencies. To be sustainable, they should build a cross-party political consensus in support of reform.

The task of building political will can begin at the grassroots, and does not end with the government embarking on reforms. Reforms must be supported through the difficult times that often lie ahead. Leadership-led reforms in Tanzania and Nigeria have experienced acute difficulties, as the leaders were virtually alone in their endeavours. However, they succeeded in Hong Kong and Singapore, where constituencies were developed.

If there are no clear and unambiguous signals of support emanating from the top, those responsible for administering and enforcing crucial aspects of the country's national integrity system may well feel inhibited from doing their jobs as they should, and reform efforts will fail.

"Political will" is not simply the "will of politicians". There are leaders throughout society - professional groups, the private sector, trade unions, religious institutions and other civil society groups - who can be energised in the cause of containing corruption and furthering integrity. The emergence of a champion can lead to the establishment of a coalition in support of change, which is drawn from several sectors.

Moreover, there is frequently "political will" among the citizenry at large, but this can be frustrated by the political elite. When leaders obstruct demands for reform, disillusionment can grow, confidence in institutions erode and the government's legitimacy to rule become called into question.

Obstruction of reforms from above can be countered through access to information procedures and rendering political parties accountable to the citizens, rather than simply to their members. Countries such as Ghana have tried to ensure democracy within political parties by having the party elections organised by the National Elections Commission.

A lack of political will is commonly found in countries where political office is seen as the quick route to acquiring personal riches where the challenge is to attract public-spirited individuals into political life ('kleptocracy').

Political risk is a very real constraint. Reformers face considerable opposition from corrupt interests. Corruption is frequently a systemic problem (as opposed to exploiting occasional opportunities), so only comprehensive reforms can be effective in reducing it. But a comprehensive reform package contains inherent unpredictability as it threatens systems that are serving corrupt interests very well.

Those who rise to the highest levels of political leadership, too, have often compromised themselves in a variety of ways, not least in the area of illicit political campaign financing and so enter political life with skeletons already in their cupboards.

References

• Kpundeh, Sahr J.: Political Will: The Core of Anti-Corruption Reforms
  
  
• Pope, Jeremy (2000): TI Source Book 2000. Confronting Corruption: The Elements of a National Integrity System, Chapter 5 - Building Political Will, Berlin, Transparency International
  
  
• Hossain, Kamal: The Challenge of creating sustainable political will to combat corruption
  

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National anti-corruption strategies

The causes of corruption are multifaceted, the consequences manifold - so must be a strategy trying to address it. A good strategy aims to focus on causes and not just demonstrations, on cures and not just diagnosis, on corrupt systems and not just units. It should seek to establish a systematic and concerted approach for countering corruption using the various institutional pillars in place.

Strategies largely limited to ex post facto measures such as the detection and punishment of corrupt officials lacking preventative measures and sufficient political will can significantly diminish their overall impact (such as Korea's responses to countering corruption in late 80s - early 90s).

While the components required for a successful national strategy would vary depending on respective country's systems currently in place and the prevalent patterns and levels of corruption, it would perhaps not be an over-generalisation to say that anti-corruption strategies should be:

• Justified and need-based
• Comprehensive and integrated
• Transparent
• Non-partisan
• Targeted
• Measurable
• Resource and capacity based
• Locally owned and driven (ensuring longer-term sustainability and commitment as opposed to short to mid-term viability, often solely based on donor funded initiatives).

Resources and Links

• UN ODCCP, CICP (2001 - 2002 drafts): Developing Anti-Corruption Strategies: An Integrated Approach, United Nations Manual on Anti-corruption Policy, Vienna, UN
  
  
• Asian Development Bank (11/2000): Developing Anti-Corruption Strategies, in Combating Corruption in Asian and Pacific Economies, Conference Papers and Proceedings, ADB
  
  
• Von Einsiedel, Nathaniel, Regional Coordinator for Asia Pacific of the UNDP/UNCIIS Urban Management Programme, (25/10/1998): Understanding Corruption and How it Can be Curbed, Bangkok Post
  

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Legislation and regulation, legal reform

Even the most well-thought laws will not of themselves control corruption. However, a sound legal framework is essential in the fight against corruption. To a large degree, the present crisis in many countries stems from the fact that laws and legal institutions have failed, owing to the weaknesses in judicial systems and in part owing to the lack of will to strengthen the system.

When laws are drafted they should be simple, both to understand and to enforce. Rather than trying to list numerous acts of illicit conduct, it is usually more effective to adopt the approach of a catch-all offence of "abuse of office", although this can risk being used for political purposes. The laws also need to take account of the capacity of the institutions available to enforce them.

The failure of "repressive" laws by themselves to suppress corruption throws the legal focus on to other laws with a preventative role. Corruption activists see a range of laws being relevant. Among them are laws providing for:

• Access to information (including official secrets legislation)
• Resolution of conflicts of interest
• Open public procurement
• Freedom of expression
• Freedom of the press
• Protection of "whistleblowers" and complainants
• Enabling civil society to mobilise
• Democratic elections
• Banning those convicted of offences of moral turpitude from holding or running for election to public office or from holding directorships
• Managing gifts and hospitality
• Creating the office of the Ombudsman
• Judicial review of the legality of administrative actions.

There are eight general principles that should govern remedies under the criminal law:

• Compliance with international human rights standards
• Not being unduly repressive
• Clear guidelines on sentencing so that sentences are consistent
• Combining the various criminal laws dealing with corruption and secret commissions together in a single law has much merit
• Regular reviews of the criminal law framework
• Special provisions in corruption cases, which require individuals to establish the origins of "unexplained" wealth to the satisfaction of the court
• Proceeds of corruption can be recaptured by the state
• The crime of corruption is seen to include both the payment as well as the receipt of bribes.
  

References

• Messick, Richard E. and Kleinfeld, Rachel (2001): How to Write an Effective Anti-Corruption Law, World Bank PREM Note No. 58
  
  
• Pope, Jeremy (2000): TI Source Book 2000. Confronting Corruption: The Elements of a National Integrity System, Chapter 27 - Laws to Fight Corruption, Berlin, Transparency International
  
  
• Spelville, Bertrand de (1997): Reversing the Onus of Proof: Is it Compatible with Respect for Human Rights Norms
  

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Procurement legislation and procedures

Every level of government and every kind of government organisation purchases goods and services, often in quantities and monetary amounts that defy comprehension. This is where the largest bribes are paid, and where incalculable damage can be done to the public interest. Too much is paid for too little, and in the most corrupt countries, for nothing whatsoever (as the contracts can be paid out but never fulfilled).

The principles of fair and efficient procurement are that procurement should be economical; contract award decisions should be fair and impartial; the process should be transparent; and the procurement process efficient. Accountability is essential.

How corruption poisons procurement

Contracts involve a purchaser and a seller. Each has many ways of corrupting the procurement process, and at any stage.

Before contracts are awarded, the purchaser can, for example:

• Tailor specifications to favour particular suppliers
• Restrict information about contracting opportunities
• Claim urgency as an excuse to award to a single contractor without competition
• Breach the confidentiality of suppliers' offers
• Disqualify potential suppliers through improper pre-qualification
• Take bribes

At the same time, suppliers can, for example:

• Collude to fix bid prices
• Promote discriminatory technical standards
• Interfere improperly in the work of evaluators
• Offer bribes

The most direct approach is to contrive to have the contract awarded to the desired party through direct negotiations without any competition. Even in procurement systems that are based on competitive procedures, there are usually exceptions where direct negotiations are permitted.

What are the remedies?

Transparent and open procedures ensuring honest competitive bidding backed by sound laws on procurement and prohibiting collusion are essential. These can be reinforced by "value for money audits" and by civil society monitoring project implementation. "Integrity Pacts" are a way of protecting the integrity of specific projects now used in a number of countries. A powerful tool, and one used by a growing number of countries and municipalities, as well as by the World Bank, is "debarment" (or "blacklisting") whereby corrupt corporations are debarred from tendering for future business, either permanently or for a fixed period. Finally there is public exposure. The public can be provided with the details of corruption: who was involved, how much was paid, how much it cost them, and thus the media can play a critical role in creating public awareness of the problem and generating support for corrective actions.

Good practice

South Africa accorded procurement special attention in its 1994 Constitution. Section 187 provides that:

• The procurement of goods and services for any level of government shall be regulated by an Act of Parliament and provincial laws, which shall make provision for the appointment of independent and impartial tender boards to deal with such procurements.
• The tendering system referred to in subsection (1) shall be fair, public and competitive, and tender boards shall on request give reasons for their decisions to interested parties.
• No organ of state and no member of any organ of state or any other person shall improperly interfere with the decisions and operations of the tender boards.
• All decisions of any tender board shall be recorded.
  

Guidelines and resources

• World Bank Procurement Standard Bidding Documents
• OECD Guidelines on Public Procurement
• OECD Policy Recommendations on Regulatory Reform
• Transparency International Bribe Payers Index (2002)
• World Bank guidelines for Improving Governance and Controlling Corruption
• World Bank list of debarred firms and consultants
  

References

• Pope, Jeremy (2000): TI Source Book 2000. Confronting Corruption: The Elements of a National Integrity System, Chapter 22 - Public Procurement: Where the Public and Private Sectors Do Business, Berlin, Transparency International.
  
  
• Wiehen, Michael (2001): The Integrity Pact (IP) of Transparency International: The Concept and the Present Applications.
  
  
• Lester, John (2000): How to Minimise Corruption in Public Works Construction Contracts.
  
  
• World Bank: Brazil - Learning from Best Practice in Five Urban Projects
  Wittig, Wayne A.: Building Value through Public Procurement: A Focus on Africa.

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Privatisation and deregulation

Deregulation consists of the removal or relaxation of a government's supervision and control of economic activities. Aiming at a decrease in the state's discretionary power as well as at a decrease in the number of public officials and public institutions involved in any one transaction, regulatory reforms are designed to simplify procedures and to cut red tape. This removal of non-essential procedures and regulations that increase the cost of dealing with government and create corrupt opportunities is expected to increase public sector efficiency and economic activity by allocating less time and resources to superfluous formalities - or their perversion.

Deregulation cannot be treated in isolation but must be seen in the wider context of reforms addressing quality improvement and management. It can be difficult to accomplish, as heavy regulation tends to provide corrupt returns powerful groups.

Failure to provide a functioning institutional and regulatory environment can have disastrous consequences. Deregulation must not lead to a situation where essential services are not provided, where unsupervised monopolies exist outside the public sector, where arbitrariness reigns the system in the absence of clear and enforceable rules - and of institutions to enforce these rules - and where corruption flourishes due to confusion of regulators and other actors over the rules in place. For deregulation to provide benefits, certain core institutions like, for example, property rights, a competitive markets and judicial bodies, need already be in place and functioning. It is thus essential that regulatory reforms be carefully designed and adapted to the respective local or national context.

Prerequisites for a successful deregulation reform include:

• Legitimacy and openness of the regulatory decision making process
• Ensuring political support for the implementation of new principles (See also Political Will)
• Ensuring compliance to the (new) rules
• Careful design of reform that takes into account local circumstances and institutional capabilities and capacities.

Resources

• OECD Regulatory Reform Page
  
  
  
• The World Bank, (1997): Helping Countries Reform Economic and Sector Policies. In: The World Bank, (1997): Helping Countries Combat Corruption.
  The Role of the World Bank. World Bank, Washington, DC
  

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Asset declaration for public officials

Asset declaration is a measure whereby public officials (and sometimes members of the judiciary and the legislature) are required to periodically declare their personal income and wealth for scrutiny by a state authority. It often also includes the income and assets of family members.

Legal Framework

A number of countries, faced with corruption and public discontent with the performance of government, have adopted legislation on asset declarations. Others, in particular many western democracies, have done without asset declarations - relying instead on traditions of institutional ethics, efficient income tax systems and public access to information. A notable exception is the USA, which has an extensive system of financial disclosure for public officials and members of government.

Asset declaration provisions are either incorporated into anti-corruption laws or adopted as stand-alone legislation or codes of conduct, such as South Africa's Asmal Code, an asset declaration for all office holders and elected members. In drafting the legal provisions, particular attention should be paid to respecting legitimate aspects of privacy.

Monitoring

As an alternative to or, in some cases, in addition to establishing independent mechanisms specifically for monitoring of assets, institutions dedicated to this task can include:

The Ombudsman, which is an institution independent of government, with a high level of public trust and profile, can be an effective instrument. In some counties, the Ombudsman is seen as being in a unique position to review and to monitor declarations of income and assets made by senior public officials (such as Papua New Guinea and Taiwan). Where a large number of applications for information are likely to be disputed, the option of establishing a separate Ombudsman's Office to handle them has been opted for by some countries, such as Finland.

Anti-Corruption Agency or Commission can be involved in the monitoring of the assets, income, liabilities and life-styles of categories of public decision-makers and public service officials. The monitoring as such is a key element of a corruption prevention framework and can thus be among prime functions of an Anti-Corruption Agency or a Commission.

Prerequisites for success include:

• Apart from declaration requirements, effective monitoring by dedicated agencies is essential. It must be decided whether the Agency should have responsibility for the random policing of income tax returns of the officials whose incomes are being monitored. A system of random checks on accuracy of declarations can be a cost-effective addition to the conventional monitoring mechanisms.
• Any tax secrecy provisions should not prevail against the exercise of investigative powers. Views may differ as to whether the authorisation to inspect them should come from a court order or simply be given to an investigator by the head of the Agency. If others are to have responsibility for the monitoring processes, the Agency must still be afforded timely access to the disclosures.
• Creating a framework where persons are prosecuted for making false declarations would only be wholly effective if they were then subject to forfeiture of the undeclared property.
• A prime value of declarations is also to identify actual and potential conflicts of interest.

In order to prevent conflicts of interest, and also to signal public probity, governments often need to take additional legal measures, including:

• Prohibiting ownership of certain business interests
• Introducing administrative law restrictions on holding other jobs and accepting gifts
• Administrative or criminal law restrictions on the use of information for personal purposes
• Introducing an administrative law requirement that officials must transfer decisions to someone else if there is a potential conflict, that elected officials must abstain from voting, and that judges must relinquish their seat when there is reasonable doubt on their capacity to make impartial decisions.

Declaration requirements are also a means of reminding public servants of the rules and obligations they must follow in the course of fulfilling their official duties. Education and training systems should support this process by informing and continuously educating public servants of what those rules are.

Resources and Links

• Stevens, Mike, World Bank page, (submitted 05/04/2000): Administrative and Civil Service Reform, Enforcement and Disciplinary Issues, World Bank
  
  
• Pope, Jeremy, (2000): TI Source Book 2000. Confronting Corruption: Elements of a National Integrity System, Chapter 20 - Monitoring Assets, Berlin, Transparency International
  
  
• Constitution of Thailand, (1998): Declaration of Assets and Liabilities, Chapter 10, Part 1
  
  
• TI Best Practice Documentation: Section on Monitoring Assets and Lifestyles of Public Officials
  

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Transparency and access to information

The less the information that is kept from citizens, and the greater the confidence they can have in its accuracy, the more likely they are to achieve the aim of just and honest government. Access goes hand in hand with sound records management, without which rights of access can be an illusion. Access to information acts as a check on corruption by unlocking the media to perform its investigative functions, informing political opposition, fuelling public debate and empowering civil society and individuals to monitor budgets, spending and projects.

The right to information is guaranteed in international law, including as part of the guarantee of freedom of expression in Article 19 of the International Covenant on Civil and Political Rights. Many countries around the world are now giving legal effect to the right, both by enshrining access to information in their constitutions and by adopting laws which give practical effect to the right, providing concrete processes for its exercise.

Ordinary citizens need access to government-held information in order to exercise their rights in just about every phase of their lives - be it to gain entry to education, to apply for a job, to gain access to a poverty alleviation scheme, to build or to buy a house, to start a business or to collect a pension.

Above all, when it comes to publicly held information, we need to be able to have access to it in order to have confidence in our public institutions and be assured that they are working as they should. The very fact that there are policies and practices of openness can, of themselves, provide much comfort.

The Right to Information movement is at its strongest in India, where a population in excess of one billion renders it the world's largest democracy. There, civil society groups such as the Mazdoor Kisan Shakti Sangathan (MKSS) took the view that if records could not see the light of day, no position [they] took could be vindicated by 'objective' data.

It is generally considered desirable for information access rights to be enshrined in legislation. Any Freedom of Information Act will have to prescribe limits, and a major issue is what the criteria should be. Inevitably there will be a list of exceptions, with state security, law enforcement, personal data (other than of the person in question) and commercially sensitive information among them. National laws can impose access to information obligations on local government and municipalities, where much information is held that citizens need and which can be used to check against corrupt uses of power.

In some countries there is a right of appeal against refusals of access to an independent Information Commissioner or an Ombudsman. Costs of providing information can be charged, but usually these are very modest amounts and do not represent full cost recovery.

Resources (good practice)

• Article 19: Model Freedom of Information Act
• US Freedom of Information Act
• New Zealand: Official Information Acts

References

• Aitken, Judith, (1997): Open Government in New Zealand, Address to the Conference on Open Government in Britain, Nuffield College, Oxford, United Kingdom, 13 March 1997
  
  
• Jenkins, Robert and Goetz, Anne Marie, (1999): Accounts and Accountability: Theoretical Implications of the Right-to-Information in India, Third World Quarterly Vol. 20 No. 3 (1999), pp. 603-22
  
  
• Jenkins, Robert and Goetz, Anne Marie, (2001): Hybrid Forms of Accountability: Citizen Engagement in Institutions of Public-Sector Oversight in India, Public Management Review Vol. 3 Issue 3 (2001), pp.363-383
  
  
• Pope, Jeremy, (2000): TI Source Book 2000. Confronting Corruption: The Elements of a National Integrity System, Chapter 24 - The Right to Information - Information, Public Awareness and Public Records, Berlin, Transparency International
  
  
• Relevant Case Law of the European Court of Human Rights

Links to NGO websites

• Article 19
• Common Cause
• Public Citizen
• Campaign for Freedom of Information
• Privacy International
  

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Public reporting and disclosure

Public disclosure of information and reporting are fundamental for ensuring transparency and accountability. Increasingly governments adopt disclosure policies to enhance public access to government information.

For this purpose, limitations on types of documents made available to the public should be minimised. A right balance must be struck between public disclosure and the conflicting privacy and/or confidentiality concerns, often framed as official secrets acts and other similar legislation. Freedom of Information Acts can be an effective framework for regulating such conflicts.

Disclosure provisions are adopted to regulate a number of areas, including:

• Public service: One aspect of public disclosure is asset declaration by public officials along with broader conflict of interest disclosure (including, already enacted in a number of countries, reporting by members of the Legislature on actual and potential financial interests related to the laws they pass).
• Public records: Public records management is often reformed to allow greater transparency and public access. E-filing and e-management are among the means of achieving greater levels of transparency.
• Lobbying: specific regulations are often put in place requiring lobbyists to register and publicly disclose their lobbying activities and beneficiaries to the head of the Legislature.
• Party and campaign finance: reforms and laws on disclosure of donations to political parties are essential. It is important that donations are disclosed immediately instead of the public often having to wait months, long after the election is over, before being able to retrieve this information (as suggested in a recent call for reform by Australia's Greens in response to revelations that Brisbane's largest property developers have donated almost $1 million to Lord Mayor Jim Soorley's fundraising group, Brisbane's Future Committee).
• Private sector: laws are enacted requiring annual, company-specific disclosure about economic development subsidy deals, etc. In the US, for example, the SEC requires annual and quarterly disclosure of public companies' financial dealings. This disclosure is to be made through detailed reports prepared by independent third-party auditors, using generally accepted auditing standards and accounting principles. The 2001-02 developments in the US have once again demonstrated the crucial importance of the issue along with its devastating implications.

Prerequisites for success

As with most anti-corruption measures, disclosure alone will not yield the desired results. As noted by John Dean, counsel to President Nixon during the Watergate era: "Disclosure laws rest on the assumption that improper influence peddling, or quid pro quo conduct, cannot prevail in the spotlight of publicity -- the idea that "sunlight is a disinfectant". This is a naive assumption. It is well known by those who must disclose their dealings with the government, such as major campaign contributors and lobbyists, that no one really polices the disclosed information."
Unless accompanied by effective enforcement and monitoring mechanisms along with civil society responses and scrutiny, "un-policed" disclosures will hardly have significant impact.

Resources and Links

• Dean, John, (19/04/2001): More Disclosure Laws Won't Prevent Another Marc Rich Controversy, FindLaw Forum, © 1994-2000 FindLaw
  
  
• Pope, Jeremy, (2000): TI Source Book 2000. Confronting Corruption: The Elements of a National Integrity System, Chapter 20 - Public Service Ethics, Monitoring Assets and Integrity Testing, Berlin, Transparency International
  
  
• Greens Australia, (12/01/2002): Reform Funding Disclosure Laws to Combat Corruption, Media Release, Greens, Australia
  
  
• Web Resources of the Information Clearing House, Japan (a non-profit, formerly the Citizens' Movement for Information Disclosure Law, founded in 1980)

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