Budget process and corruption:

5. How to reduce corruption in the budget process

5.1 Legislation, judiciary, and legislature

CONTENT ON THIS PAGE:

• Legislation
  
  
• Judiciary
  
  
• Legislature
  

Legislation

There are certain areas of legislation and regulation that come particularly into focus and which may not be totally appropriate in some countries where corruption is a major problem. Four important elements of effective anti-corruption legislation are:

• Rules that criminalise corruption
  
  
• Formal laws against accepting bribes
  
  
• Laws making it illegal to abstain from disclosing corruption
  

Moreover, the media may play an important role in detecting and putting a spotlight on cases of corruption. Media regulations therefore ought to ensure freedom of information, for example through a Freedom of Information Act. Legislation requiring government agencies to make information available, libel laws that offer protection to the press and the public, and clear rules for government interventions in censoring the press, are helpful in this respect.

The legal framework for public expenditure management has to combine legal principles with economic considerations and management rules. Particularly important legislation with regard to budgetary corruption includes arrangements for disclosure of key politicians' and civil servants' assets, their handling of extra budgetary or earmarked funds, and special accounts, as well as sales of state property, natural resources, or marketable goods to the private sector. The latter is particularly important in countries in transition where it perhaps represents the most fertile ground for misappropriation of public resources.

Disincentives for the would-be corrupt may need to be hardened or broadened by including as civil penalties the blacklisting of corrupt firms, extradition arrangements, and provisions to enable the profits of the corrupt to be seized and forfeited.

Judiciary

It is widely recognised that one of the main reasons for corruption is not an absence of appropriate laws and rules, but that they are ignored without consequences for the perpetrators. A basic requirement for rooting out corruption is therefore that perpetrators - in our case particularly politicians and civil servants - are held accountable for corrupt acts. Important overall conditions for this to take place are that there is:

• Proper separation of power between judiciary and government
  
  
• Effectiveness of the judiciary in the implementation of the law
  
  
• Integrity and management of the judiciary itself

The capacity of the police may be strengthened to function effectively as an investigatory agency. In addition, one can appoint independent investigators, prosecutors, and adjudicators. One can also develop channels for effective whistleblowing, whether it takes place internally by a public servant or by a member of the public.

Legislature

The role of the legislature in anti-corruption work may need to be strengthened in various ways to ensure accountability and transparency in the institution and in its processes. The situation may require an examination of the activities of important committees of the legislature such as the Public Accounts Committee - the parliament's primary financial review body - as well as any disciplinary committees which may investigate allegations of improper conduct by members of the legislature. Also, legal requirements for reporting on proceedings and the results of votes may be put in place, including the reporting on who voted what. Special committees should investigate allegations of misdoings within all three branches of government.

To prevent corruption creeping into the central activities of democracy, the financing of political parties must be regulated, and the mechanism of the poll itself protected against corrupt practices. This may for instance take the form of parliamentary / legislative commissions to oversee election campaign funding and / or by setting maximum contributions and impose reporting requirements for political parties.

In some countries the legislature may have insufficient capacity to conduct its functions. Additional training or resources may be introduced to ensure understanding of the basic functions and responsibilities of the legislative body.

One detection and enforcement mechanism used successfully is the Corruption Commission such as the Hong Kong Independent Commission. Such commissions usually have broad investigative and prosecutorial powers, as well as a public education mandate. Such a Commission must be genuinely independent of the country's rulers but subject to the rule of law, or it risks becoming a force for repression in its own right. It must also have political backing and leadership of high integrity. The Commission must take human rights norms into consideration, operate according to the law, and be accountable to the courts.

A number of other measures may be tried to make sure that rules and regulations become enforced and locally rooted. These may include the strengthening of oversight institutions like the Office of the Auditor-General and the Office of the Ombudsman. The process of appointment of these officers is important. It must happen in a way that ensures independence and professionalism, and governments must act to implement recommendations from their reports.

Last but not least, procurement procedures in many countries do have precise rules and regulations. Establishing an Office of the Contractor General would provide independent oversight of government contracting and performance.

go to next page: 5.2 Systems, institutions, and administration

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