Basics of corruption and the justice sector
When justice can be bought, it is worthless. Equality before the law should not be for sale to the highest bidder; rather, it is a living principle that is implemented by designated institutions and must be subject to continuous oversight and scrutiny.
When those who serve in the justice sector bend the law in exchange for monetary bribes or favours in kind – by losing case files, evidence, or even suspects, delaying proceedings, issuing questionable sentences, or providing prisoners with preferential treatment – public trust in the institutions of justice is eroded. Citizens may then turn to informal justice mechanisms, sometimes run by insurgents or terrorists, vigilantes, or mafia-like structures, to resolve conflicts and secure their rights. Ultimately, the legitimacy of the state is undermined.
Assessing the problems
As the state’s enforcers of justice, actors who work in justice sector institutions are crucial to the effective implementation of anti-corruption legislation and strategies. But when justice sector institutions themselves succumb to corruption, no anti-corruption strategy is likely to be successful.
Unfortunately, international indexes such as Transparency International’s Global Corruption Barometer and the World Justice Project’s Rule of Law Index regularly point to poor public perceptions of the integrity of justice sector institutions. In fact, in many countries the police and judiciary lead the list of those perceived to be corrupt.
Systematic evidence of the extent of corruption, however, is difficult to find. Experience-based surveys may reveal whether respondents have paid a bribe within the last year or so, but they do not tell who asked for the bribe and who benefited from it. Was it the lawyer, the court clerk, the judge? A specific instance of bribery may involve a few low-level clerks supplementing their meagre salaries or a wide network of corrupt, highly placed officials.
In addition, such surveys are usually confined to straightforward bribery; they do not assess trading of influence, conflict of interest, nepotism, extortion, and other forms of corruption. These crimes are more difficult to observe. Occasionally a scandal comes to light, allowing a glimpse of these more insidious forms of corruption. While such revelations do not provide a complete picture of the corruption within a jurisdiction and offer no systematic data on changes over time, they may nonetheless point to systemic weaknesses and corruption risks.
In our Issue Corruption risks in the criminal justice chain and tools to address them we asked sector experts in 2015 to compile existing corruption risk analysis approaches for the investigation, prosecution, trial, and incarceration stages. Since then, we have observed a refinement and further development of tools, as well as the testing of new approaches. For example, UNDP Asia and the Pacific in collaboration with the International Consortium for Court Excellence has led the development and piloting of a judicial integrity checklist in addition to the existing International Framework on Court Excellence. This extended instrument is currently being piloted by the Supreme Court in Malaysia.
Between 2013–2017, CDA Collaborative Learning Projects (an NGO) and the Fletcher School at Tuft University piloted a systems-thinking approach to corruption in the criminal justice systems of the Democratic Republic of Kongo, Uganda, and the Central African Republic. The results were maps that identify factors that cause people to participate in corruption (drivers) and factors that facilitate or make corruption possible (enablers). The maps captured the outcomes of the corrupt practices and the mental models of actors from within the justice system and citizens. Mental models concern the – generally implicit – ways of framing or thinking about issues that often influence behaviours.
Addressing the problems
The enforcement of anti-corruption legislation requires an efficient, predictable, and accountable justice sector. In the past, judicial reform programmes have often focused primarily on facilities and equipment, court administration, and capacity building – thereby ignoring some of the main factors driving corruption in the justice sector. For such programmes to have an impact on corruption, the reforms also need to address issues related to judicial independence, accountability, and transparency. This includes establishing structures for an independent judiciary capable of self-governance and capable of dealing with issues such as:
- establishing criteria and procedures for appointing judges and court staff;
- issuing codes of conduct/ethics for members of the judiciary;
- oversight of implementation of these codes; issuance of disciplinary measures and/ or dismissal of staff; and
- providing adequate compensation.
Other measures include drafting and passing procedural legislation providing direction to investigators, prosecutors and judges on how to implement anti-corruption legislation. International conventions and principles offer guidance.
With the ratification of the UNCAC, most states have agreed to Article 11 on strengthening integrity and to prevent opportunities for corruption among members of the judiciary and prosecution services. You can find guidance on what this means for implementation in the UNODC Implementation guide and evaluative framework for Article 11 and the U4 Brief The UNCAC and judicial corruption: Requirements and avenues for reform.
Article 11 of the UNCAC requires all parties ‘to take measures to strengthen integrity and to prevent opportunities for corruption among members of the judiciary.’ In states where the prosecution service is separate from the judiciary, this same obligation applies to the service. Acknowledging that judges and prosecutors are to discharge their duties independently of the government of the day, the article directs that integrity and anti-corruption measures are to be implemented ‘without prejudice to judicial independence.’
To help states comply with article 11, the UNODC launched the Global Judicial Integrity Network in April 2018. The Network promotes peer learning and supports activities among judges. It facilitates access to relevant tools and resources on various issues relating to judicial integrity and supports further development and effective implementation of principles of judicial conduct, corruption prevention within the justice system.
The UNCAC’s relevance for the judiciary and prosecution services, however, is not limited to article 11. The definition of a public official in the UNCAC includes persons holding executive, legislative, or judicial office. This means that some additional UNCAC provisions can also be considered relevant to the judiciary, especially Articles 7, 8, and 13 from Chapter II on prevention. They promulgate measures like human resource management in the public sector, codes of conduct, and civil society participation to prevent corruption.
Professional associations such as the International Commission of Jurists have developed guidance on integrity standards for their members. The International Association of Prosecutors has its own standards and a Network of Anti-Corruption Prosecutors. The American Bar Association has worked for 25 years with lawyers world-wide through its Rule of Law Initiative, integrity and accountability being part of much of this work, including in its assessments of various justice sector institutions.
If, however, corruption within the justice sector is systemic, and there appears to be little incentive or momentum toward reform, then many of these measures may fail to be implemented despite their adoption. Capacity building may not change the basic incentives driving judicial behaviour. In such cases, actions to make court procedures more transparent to the public, civil society, and the media may have some positive impact. In particular, they may work if combined with efforts to familiarise citizens with, and improve access, to these systems (eg improved court administration and case management connected to information systems).
One approach used to overcome problems related to corruption cases, as when slow case processing or even corruption prevents fair and unbiased case treatment — is to establish specialised anti-corruption courts. In a 2016 review of about 20 specialised courts currently existing, U4 found very different models at work. These range from individual judges who are given special authorisation to hear corruption cases, to special branches or divisions (for example in Slovakia, Uganda and the Philippines) and separate, stand-alone units within the judicial hierarchy (for example in Indonesia). See U4’s page dedicated to specialised anti-corruption courts on what questions to consider when contemplating judicial specialisation.