U4 Helpdesk Query

U4 helpdesk reply

Manifestations of corruption in the land sector are perceived to be rampant (BPI 2002), but ways to curb it have not been comprehensively discussed in the anti-corruption literature. The relative breadth of the question, as well as the short notice at which the query was submitted, mean that this reply can only take up some of the issues touched upon by the enquirer. Given further time, the Helpdesk team will be happy to elaborate on any of the areas that are of particular interest to the enquirer. Should this be the case, please do not hesitate to contact the researchers for further assistance.

Reply produced by: U4 Helpdesk research team, London, with expert input from Juanita Olaya (Programme Manager, Public Contracting Programme, Transparency International) and Raymond Dou'a (Coordinator, Forest-Environment Commission, Transparency International - Cameroon)

Introduction: Anti-Corruption Measures in the Land Sector

Anti- corruption measures in the land sector can take a variety of forms, and their adequacy will depend on the prevalence of the respective types of corruption and on the political and institutional environment of the country in question. This is particularly important in the context of post-conflict and transition countries, where institutional capacity is likely to be weak and where consequently the timing, sequencing and design of reform is crucial to ensure the feasibility and sustainability of the reform process.

Anti-corruption measures targeting corruption in the land sector can be sectoral (i.e. focussing only on curbing corruption in the land sector and closely related fields) or systemic (i.e. an holistic approach to curbing corruption in a state, in the hope that the benefits of an honest and transparent environment will improve the integrity of all parts of the state and society - including the land sector).

1. Sectoral approaches to tackling corruption

The choice of measures directed at targeting corruption in the land sector (as opposed to a more systemic approach) will depend on the analysis of those areas where the corruption problem is perceived to be most urgent.

One area highlighted in reports discussing the link between corruption and the land sector is the illegal use of concessionary powers by public officials to the detriment of both local communities and the environment (see, for example, reports by Global Witness, FIN and Kasanga and Kotey, 2001)

1.1. Integrity Pacts

Concessions in the land sector work like any other type of public contract, and are therefore subject to the same kind of abuse. While greater transparency rules and provisions generally promote greater accountability and oversight, their functioning depends, among others, on effective law enforcement and sound public institutions both of which are not necessarily a given in many developing countries. Other tools, which focus less on enforcement and more on the involvement of different stakeholders can therefore be employed to ensure a corruption-free concessions process.

One tool which has received considerable interest in the past and which has been successfully employed in the context of public contracting in over 14 countries is Transparency International's Integrity Pact. An Integrity Pact essentially consists of a process that includes an agreement between a government or a government department and all bidders for a public contract or concession. It contains rights and obligations to the effect that neither side will pay, offer, demand or accept bribes or engage in other corrupt activities to obtain the contract or while carrying it out. Bidders are obliged to disclose all commissions and similar expenses paid by them to anybody in connection with the contract, and sanctions ranging from loss of contract to liability for damages by the bidder or disciplinary action against government employees, will apply when violations occur. The Integrity Pact allows companies from bribing in the knowledge that their competitors are bound by the same rules, and it allows governments to reduce the cost of corruption on procurement and licensing.

The advantage of the use of Integrity Pacts in land concessions lies primarily in the possibility of the prevention of a corrupt attribution of concession contracts, many of which are long-term. It also potentially facilitates the cancelling of contracts should a breach by the contractor of the conditions set out in the Pact be discovered.

In terms of "damage limitation", that is, the dealing with corruption during the concession period, the recommendations are less clear cut and rely mainly on the enforcement of existing law. In most national regimes, the possibility of cancelling (annulment) of a contract obtained through corrupt means is clear and often includes arguing the illegality of contract object, purpose or cause, especially when a third party is a victim to this contract. In rather fewer cases, some countries (and courts) accept the ethical argument as sufficient ground for cancelling a contract without liability to the principal, even if the unethical conduct surrounding the contract is legal, or if no proven damage exists. Again, law enforcement may be difficult to obtain in the transition context, which points to the need for institutional strengthening, as outlined in section 2.

1.2. dedicated agencies

Another area highlighted in literature on land reform is the need to curb high levels of administrative discretion which, coupled with a lack of clear rules and regulations, is conducive to the persistence or facilitation of phenomena like land capture, the corrupt allocation and management of public land and land reform more generally.

Most of the causes and conditions contributing to corruption in these areas are best and most sustainably addressed by comprehensive institutional reform and capacity-building (see section 2). However, the extent to which public officials dispose of discretionary powers can be substantially reduced by the establishment or strengthening of a specialised agency whose sole aim is the administration of the land reform programme in a transparent and effective fashion (Kasanga, Kotey, 2001; IEA Kenya, 2000).

While the creation of a new agency in a weak institutional environment is not always advisable, a dedicated organisation with, potentially, a limited life time (like, for example, Germany's Treuhandanstalt), that comprises of national and international experts from outside the government administration and that is politically and financially independent has the ability to effectively and transparently implement reform and land policy, dilute corrupt networks and limit control rights over access to and use of public land by removing public officials from central decision-making positions, and thereby minimise corrupt opportunities in the land sector.

Prerequisites for the success of such agency include independence from political interference (through, among others, adequate supply with human and financial resources), technical expertise, and openness and transparency in the operations of the organisation.

2. Holistic approaches to tackling corruption

In post-conflict and transition environments as elsewhere, the design and implementation of anti-corruption strategies is a politically sensitive issue, with powerful interests standing to loose out in the process and with results manifesting themselves in the medium to long, rather than in the short term.

Generally speaking, given the often negative impact of conflict or indeed transition on the effectiveness of state institutions, the measures chosen should be in line with the institutional capacity already present, and ideally have an emphasis on further strengthening existing state institutions.

While a discussion of holistic anti-corruption strategies and their sequencing is out of the scope of this question, a number of measures that bear a more direct relation to issues of land tenure and land reform are outlined below.

2.1. Legal measures

Many problems related to corruption in land policy and reform are rooted in insufficient or incoherent and improperly enforced legal provisions, such as the lack of a comprehensive and unambiguous regulatory framework governing access to and use of land (in particular in national contexts where statuatory and customary laws co-exist), confusion over existing rules (in particular in transition economies where laws are subject to frequent change) and failure to enact of those rules and regulations whose presence is likely to reduce corrupt opportunities. The result is an institutional environment in which uncertainty and confusion facilitate the exercise of corrupt practices and where the risk of detection is reduced due to the insufficient nature of law enforcement agencies.

While regulations relating to issues like rights of ownership and land usage are likely to be different depending on the national context, three areas often missing from the legal dispositions - and complementing efforts to streamline legal provisions - are access to information provisions, conflict of interest legislation and whistleblower protection schemes.

• Access to information provisions are the basic prerequisites for citizens to hold public officials accountable for their actions. Information is the central to effective civil society participation and monitoring of government activities. Free access to information enables citizens, the media and law-enforcement agencies to uncover cases of corruption and maladministration. More importantly, however, the transparency herewith achieved acts as a deterrent to bad governance as the risk of detection of illicit or otherwise questionable practices, like for example the preferential treatment of government employees and their cronies in the distribution of land, increases. Freedom of information is thus an essential element of sustainable corruption control in the land sector.
  
• For further information on access to information, please this U4 FAQ answer and this section of selected literature.
  
• Conflicts of interest arise when the private interests of a public official clash or coincide with the public interest and potentially inhibit the official's objectivity in the exercise of his or her tasks and duties. As such, conflicts of interest rules explicitly demand the establishment of openness and transparency measures designed to limit corrupt opportunities, such as the declaration of interests and the interdiction of parallel activity of public servants in the political and business sectors, which is of particular relevance in areas such as the illegal use of land and concessions for the use of public land.
  For further information on conflicts of interest legislation, please refer to this paper.
• Whistleblower protection schemes i.e. the development of procedures to facilitate the reporting of actions perceived to be against the standards set in, for example, a code of conduct are important in that they reflect a commitment to openness and transparency, and a willingness to take action against those in breach of the rules.
  For further information on whistleblower protection, please refer to please this U4 FAQ answer and this section of selected literature.

Of course, without implementation by public institutions and proper enforcement by law enforcement agencies like the police and the courts, legal provisions remain ineffective in creating a corruption-free environment.

2.2. Capacity-building

Weak institutional capacity is an impediment to good governance and can seriously endanger the effective implementation of national policies and consequently of anti-corruption strategies.

Capacity-building aims at enabling organisations to handle increasingly complex tasks, such as the implementation of large-scale redistributive land reforms, by equipping them with the necessary technical and human know-how as well as with adequate resources.

Measures typically include

• Regular training of existing and new staff in their area of work in order to familiarise them with the technical requirements of their position as well as to update them on latest developments in the field. This can be done in-house, facilitated by external agents or be provided on an ongoing basis through, for example, secondment programmes.
  
• Ethics training for staff to familiarise them with the moral and professional standards of behaviour expected of them, and to encourage the development of a culture of integrity within the organisation. Ethics training can refer primarily to agency-specific codes of conduct, but also aim more broadly at raising awareness of anti-corruption strategies and mechanisms. For further information on public sector ethics, please refer to this U4 FAQ answer.
• Provision of access to equipment necessary for the execution of professional tasks
  
• Sufficient levels of funding for the organisation as well as for remuneration of staff to reduce incentives for corruption on the basis of need. For further information on public service pay, please refer to this U4 FAQ answer.
  
• For further information on public sector training and capacity building, please refer to this U4 FAQ answer.

Further measures include the strengthening of internal accountability mechanisms, through, for example, the establishment of clear reporting lines and responsibilities, whistleblowing procedures and internal and external audits, as well as through the elimination or simplification of arbitrary or inefficient regulations.

Finally, watchdog institutions like anti-corruption agencies, ombudsman, and supreme audit institutions can - if implemented properly - greatly contribute to an increase in overall public sector accountability.

2.3. civil society

Civil society is one of the most important actors in the fight against corruption, and has great potential to bring forward a government's reform agenda. Public awareness campaigns (of the costs of corruption, of the benefits of anti-corruption reform, etc), anti-corruption education and training of citizens in the exercise of their rights are crucial in bringing about lasting change in the way business and government are conducted. A society with little or no experience in dealing with properly regulated and functioning institutions will not be in a position to positively contribute to change if they are unaware of their rights and the way things should work.

One of the most powerful tools an empowered civil society can use is the monitoring of state institutions or state activity, which is particularly effective if the local population involved has a great stake in a less corrupt environment. Transparency International Cameroon is currently monitoring work on the Chad-Cameroon pipeline through its forest and environment commission. Raymond Dou'a is coordinating the commission's efforts.

2.4. private sector

Finally, the active involvement of the private sector in anti-corruption programmes can positively contribute to reducing corruption in the land sector.

Examples on the national and firm level include adherence by companies to no-bribery agreements like the Integrity Pact (see section 1.1.), the issue and enforcement of company codes of conduct and corporate guidelines, as well as the establishment of means to encourage compliance by employees to company policies, like confidential helplines, whistleblower protection and training.

On the international level, the subscription by firms to voluntary codes of conduct like the Business Principles for Countering Bribery) or to sector-specific initiatives like the Publish What You Pay campaign can complement the need for compliance to the requirements of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the accompanying national implementing legislation.

Summary

Corruption in the land sector can be addressed in an isolated fashion, which targets specific weaknesses within the land sector, or through an holistic approach, which aims at increasing integrity and openness throughout the political system in an effort to sustainably reduce opportunities for corruption.

The choice of strategy, as well as the timing, sequencing and design of reform will depend on the respective political and institutional context.

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Further Resources

Articles

• Institute of Economic Affairs (IEA), Kenya, 2000: Reassessing Kenya's Land Reform. In: The Point, Issue 40, November 2000.
• Kasim Kasanga, Nii Ashie Kotey, 2001: Land Management in Ghana: Building on Tradition and Modernity.
• Miguel Schloss, 2002: Transparency and Governance in the Management of Mineral Wealth
• Jeremy Pope, Confronting Corruption: The Elements of a National Integrity System (TI Source Book 2000)
• Transparency International, 2002Bribe Payers' Index 2002

Websites and organisations:

• Forest Integrity Network
• Global Witness
• Transparency International Public Contracting website
• World Bank - Land Reform website
• World Resources Institute

Content

• Please provide references to reports/documents etc identifying the links between HIV/AIDS and corruption, focusing particularly on Africa.
  
• What are the specific issues concerning HIV/AIDS as distinct from links between health sector and corruption?
  
• Are there examples of initiatives to tackle corruption related to HIV/AIDS?
  
• Which are the key donors/researchers/NGOs which might be working on these issues?
  

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Part 1