U4 Helpdesk Query

U4 helpdesk reply

Summary

The assessment of commissions/tribunals of enquiry as means of investigating corruption cases is an area that is under-explored in the existing body of corruption literature. There is a lack of thorough analysis on legal and procedural implications. The commissions are however an important element of investigative and fact-finding machinery for looking into various forms of government malpractices and abuses of authority. To this extent, commissions of enquiry have been used by different countries for investigating corruption allegations in various key institutions. In this reply we have listed some examples of commissions of enquiry from African countries that have, or currently are, considering corruption cases. This is followed by a brief discussion on the legal framework most commonly used to convene such commissions of enquiry and by a section highlighting issues associated with the establishment of commissions of enquiry and the potential benefits and challenges to consider.

Reply produced by: U4 Helpdesk research team, London, with partial expert input from Dr. Jon Moran, University of Glamorgan, Wales.

Probing Corruption allegations through Commissions/Tribunals of Enquiry

Commissions of enquiries have been set-up and used for probing corruption allegations (at grand level and/or involving senior public officials) in a number of countries in Africa. Examples include:

Kenya
The Goldenberg judicial commission of enquiry was set up in February 2003 (with its terms of reference revised and the mandate significantly broadened in July 2003 by President Kibaki) to look into the multibillion-shilling Goldenberg export fraud of 1990-91. The expanded mandate of the commission includes tracing of stolen money and property related to the Goldenberg scandal within and outside Kenya, thus paving the way for possible seizure of the assets by the government. The inquiry can open for investigation bank accounts held by people connected to Goldenberg International and associated companies, etc.

The commission has also been asked to investigate whether any Goldenberg money was used to fund political party campaigns and to identify the beneficiaries. Incidentally, some of the delays in the work of the commission have included suspension of the Justice Daniel Aganyany, vice-Chairman of the enquiry, in late 2003 as one of the 23 alleged judges named in the Justice Ringera's report, produced as a result of a major probe into judicial corruption in Kenya set up by the Chief Justice.

Lesotho
A commission of enquiry to investigate alleged corruption in the issuing of building permits by the Maseru City Council in connection with the reconstruction of the Maseru city centre has been appointed by the government in 2003. Michael Ramodibedi, who is a senior judge in the Lesotho High Court and is a judge of the Court of Appeal, has been appointed to chair the commission, assisted by a practising engineer, and a member of the fraud division in the Lesotho Mounted Police Service.

Malawi
A commission of enquiry was set up to look into corruption in contract awards (procurement). Timely approval and implementation of commission's recommendations by the government has been included as an integral part of Malawi's national anti-corruption strategy (to be found at this World Bank page).

South Africa
The Jali commission of enquiry was convened to investigate claims of rampant corruption and maladministration in the Department of Correctional Services (the South African prison system), having held public hearings in Durban, Port Elizabeth, Cape Town and Bloemfontein, Gauteng and other cities. The Commission has been appointed by the President Mbeki in 2002 and has since continued its wide-ranging probes extending to senior prison officials. Calls for a similar commission to look into corruption allegations in the Department of Justice are being voiced by activists in South Africa.

Tanzania
A commission of enquiry against corruption (known as the Warioba commission - headed by judge Warioba) was set up and has published a wide-ranging report with recommendations in 1996. The enquiry had, amongst other issues. also looked into allegations of corruption against senior public officials.

This is not to be confused with the system of a Permanent Commission of Enquiry operated in Tanzania (that deals with maladministration in government with powers to investigate abuses of authority), which acts as country's Ombudsman. The implementation of recommendations related to corruption made by the permanent commission is coordinated by the Prevention of Corruption Bureau.

Legal Framework

None of the commissions of enquiry listed as examples above or others that have been looked into as part of this research seem to have been convened under the legal framework of a country's Anti-Corruption Commission Act (or the specific piece of legislation establishing that particular country's anti-corruption agency). As a rule, commissions of enquiry (be it for probing corruption allegations or looking into other matters of public maladministration and/or human rights abuses) are established in accordance with the legislative provisions of that country governing the establishment and operation of probing panels, including the commissions and/or tribunals of enquiry. In common law countries, these are mainly framed as commissions of enquiry ordinances/acts.

As to the question on whether it would be feasible to make provisions for corruption commissions of enquiry under the ACC Act, the advice would be to keep in mind that:

• It is important to clearly distinguish between the functions of the ACC and the commissions of enquiry. ACCs can have mandates to carry criminal investigations as part of their day-to-day operations and these powers should be provided for in the ACC Act. Whereas commissions of enquiries, while they can vary in terms of their powers and terms of reference, are in most cases convened as fact-finding enquiries and do not have full criminal investigatory powers.
  
• Matters of criminal investigation should, in the interests of jurisprudence, be kept separate from laws relating to commissions of inquiry. If a commission of inquiry of any sort may have criminal ramifications, this should be clearly stated and will affect the operation of such an inquiry. If criminal and other proceedings are confused this can create serious consequences in terms of rule of law guarantees.
  
• The general legal approach required for setting the commissions of enquiries and ACCs differs and making provisions for these different bodies under the auspices of a single Act is not likely to be feasible. Commissions of enquiries have distinct appointing authorities (in most cases the president on behalf of the state, the government, etc.) in each case; whereas the ACCs are permanent agencies with standard establishment, reporting and accountability procedures. The same applies to their operations and staffing.

While further exploring the commissions of enquiry versus (and/or in addition to) the ACCs route for corruption investigation, the fundamental question to ask would be: what is the prime objective you are seeking to achieve through the commissions of enquiry? In your query text you specifically mention one such objective to be "the possibility to obtain evidence and clear the innocent without resorting to a full criminal trial". This should indeed be achievable through the commissions of enquiry route, given their terms of reference are set accordingly.

Another route to achieve this (and this route ties closer with the ACCs framework and might be of particular interest to you) is to consider the Hong Kong ICAC's practice. At the conclusion of an investigation by ICAC's investigation team, if there is insufficient evidence for a prosecution, the case is tabled before the ICAC's Operations Review Committee, which can authorize the termination of the investigation. This means such cases can be cleared without resorting to full criminal trial/prosecution. Please consult ICAC's website for further details on this.

Other fundamental questions to consider would be: what are the gaps in the present legal system and the political ambience that the commissions could successfully fill? What are the main constraints of the Zambian ACC and would they be addressed in part through deployment of an additional corruption probing mechanism, such as the commissions of enquiry? Since you would be best placed to answer these questions against the background of the present legal framework in Zambia and the local circumstances, we would limit our advice to highlighting some benefits, operational issues and challenges associated with establishing and/or using commissions of enquiries.

Deployment of commissions of enquiry (potential benefits, issues and challenges)

Commissions of enquiry continue to serve as accepted tools for fact-findings in areas of great public concern and relevance, such as government maladministration and malpractices (both at institutional and senior individual levels).

Benefits of such enquiries include:

• When conducted appropriately, commissions of enquiries can be excellent tools for boosting public confidence in the state and its institutions and affirming such values as transparency and public accountability;
  
• The commissions are helpful for timely and targeted interventions and enquiries;
  
• Often as a result of enquiries, evidence and facts are gathered not only on the direct subject matter but also the associated institutional and procedural framework thus revealing institutional or sectoral loopholes for corruption and malpractices and contributing to broader public debate.

Operational issues to consider include:

• Composition issues: increasingly, strong arguments are emerging against the appointment of existing judges to commissions/tribunals of enquires as the practice may conflict with the judicial independence and separation of powers principles. A common practice is to appoint retired judges with outstanding professional records. Other professions (again being mindful on conflict of interest issues) may include lawyers, researchers and special technical experts relevant to the subject matter of a particular enquiry;
  
• Authorisation/mandate: some enquiries (with coercive powers) may require the approval of the Parliament, in addition to the main appointing authority;
  
• Powers: the exact remit of the powers would need to be clearly stated in the terms of reference of the enquiry and balanced against the necessary legal and procedural safeguards. At the same time, restrictive powers (such as no binding power to summon the alleged or call upon the witnesses, which has been the case in many instances) can make some types of enquiries impossible to conduct to the full effect.

Challenges to consider include:

• The potential of such enquires to harm reputations (including deliberate attempts driven by various personal and political motives) and potential to infringe on privacy and other human rights;
  
• Undue influences from the appointing authority, such as delaying the publication of the reports and/or reserving powers to interpret and accept or reject the recommendations of the enquiry without clear criteria;
  
• Length and cost of the enquiries, which can create difficulties and even compromise the quality of the enquiry.

Upcoming Resources/Events
We would like to highlight two resources of particular relevance to the query to keep an eye on:

• An upcoming report by Professor Robert Williams (commissioned by U4) on Anti-Corruption Agencies in Africa, with Zambia being one of the four case studies. The report is due in April 2004 and should be available in U4 resources section thereafter. You may also wish to contact him).
• An upcoming seminar on the impact of high profile corruption cases and the implications for countering corruption in Southern Africa: "Three strikes against Graft - assessing the impact of high profile corruption cases in Lesotho, Mozambique and South Africa", 15-17 March 2004, Gauteng, South Africa. Full details are available at the website of the Institute for Security Studies.