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Position
Paper on the Independent Anti Corruption Commission
Transparency International Zimbabwe
(TI-Z)
July 02, 2002
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Corruption
Survey
In an anti-corruption
perception survey conducted by TIZ in 2001, the general perception
among people interviewed was that an anti- corruption commission
is necessary which must be independent, this was said by 76% of
the interviewees. The survey took into account the need to get the
views of both men and women so that the gender analysis would be
part of the findings of the survey. It was crucial to find out the
views of men and women because corruption affects the sexes differently
due to the economic, social and political position of men and women
in the Zimbabwean society. 72.7% stated that this commission should
be appointed by a Parliamentary committee and not by the President.
The creation
of such a commission requires independence from government to enable
it to investigate and prosecute government officials involved in
corruption cases, as government being the biggest employer in the
country corruption is inevitable. Looking at other African Commissions
these problems have arisen, as the commissioners do not effectively
investigate government officials or those closely associated with
the President, as they know on which side their bread is buttered.
If such a commission is independent, the ideal situation would be
that members of parliament appoint it and it gets endorsed by the
President after a selection process that is described above.
Another problem
with African Commission is the reporting mechanism. If appointed
by the President, does the commission report to the President and
what happens to cases involving the President or his family and
friends? In other countries where these commissions exist the major
complaint was that they do not investigate grand corruption involving
senior officials. One leader stated, "Unsure of political commitment
from leadership, these officials are left trying to interpret political
signals to determine whether or not certain public leaders are immune
to investigation. As a result, the institutions are seen to be less
willing to undertake investigations of close allies political authority"
The commission,
provided its appointment is done through Parliament, should report
to the Public Accounts Committee. Parliament is a representative
body of national interests. It is more profitable in terms of accountability
for the Commission to report through a parliamentary committee and
not an individual. A proper reporting mechanism of the commission
is imperative for the success of this commission. There have been
many cases involving senior government officials that have not been
concluded in the courts, as there has been political interference.
The Zimbabwean
commission could be formed following the highly successful Hong
Kong Independent Commission Against Corruption (ICAC). The main
emphasis of this commission was prevention and public participation.
This commission recognized the need to involve the public in the
fight against corruption and it was determined that the best possible
way to win the public was to prosecute and punish high-level perpetrators.
"Big and corrupt actors must be named and punished so that
a cynical citizenry believes that an anti-corruption drive is more
than just words." This commission was "responsible for
taking a good hard look at practices and procedures within the Government
and public utilities. This is done through careful examination and
analysis of systems; methods work approach, and policies. The object
is to eliminate and simplify wherever possible or desirable, unenforceable
laws, cumbersome procedures and vague and ineffectual practices
conducive to corruption." – This was stated by one of the officials
of the ICAC.
The ICAC has
three components,
- Operations Department, which was in charge of investigations
- Corruption Prevention Department, which evaluated where various
agencies were vulnerable to corruption and helped the agencies
take remedial measures,
- Community Relations Department, which involved the people in
the fight against corruption.
When confronted
with systematic corruption, understanding that the usual law enforcement
approaches are insufficient; it is almost impossible to succeed
with the investigations aspect when the investigatory arm of the
government is regarded as corrupt.
The secret to
the success of anti-corruption activities is in the formulation
of policies and a change in systems. There has to be a strategy
against corruption, this strategy must focus on corrupt systems
instead of on the corrupt individuals. It is necessary to concentrate
on the systems that enable one to participate in corrupt activities.
These systems include situations where there are few checks and
balances, where there is a blurred line between the executive, the
legislature and the judiciary (no separation of powers) and no good
systems of control.
This strategy
should examine ways of reducing monopoly power, as this is where
corruption can thrive and increasing transparency in the public
sector. It is imperative to always keep in mind that corruption
is a crime where the risk is small, the penalties insignificant
and the benefits enormous. Where there is monopoly power, the probabilities
of greater rewards are higher, in order to reduce corruption information
and incentives have to be increased. The anti-corruption strategy
requires the development of clear concepts of ends and means in
the short and long term and in order for an anti-corruption commission
to be taken seriously it needs to be successful in the early stages.
Closer to home,
several countries in Africa have established anti-corruption commissions,
it is necessary to discuss these briefly to learn lessons from their
mistakes as well as their successes.
Nigeria
An
Independent Corrupt Practices and Other Related Offences Commission
was established by The Corrupt Practices and Other Related Offences
Act of 2000. This Commission has the power to investigate and prosecute
offenders, and it also has the protection of whistleblowers functions.
The Act clearly stipulates the type of people who can become commissioners
and the duties they are expected to perform.
Of all the African
states, the Nigerian commission is the most progressive as it is
independent, in that it is a corporate body with perpetual succession
and can sue and be sued in its own right. This commission incorporates
all the provisions being requested by TIZ in the Zimbabwean commission.
This commission is relatively too new for it to show any noticeable
decrease in the levels of corruption. Strength is that the government
has manifested the political will to combat corruption.
Malawi
The
Anti-Corruption Bureau was set up, it has the statutory responsibility
to undertake public education, corruption prevention, investigating
and prosecuting cases of corruption under the Corrupt Practices
Act. Critics have, however, stated that no successful prosecutions
have been completed by the commission since its inception.
Zambia
The
Anti-Corruption Commission was established in 1986 and amended in
1996 but it has not been sufficiently effective in the fight against
corruption. The Anti-Corruption Commission Act in itself is a commendable
piece of legislation as it categorically states that " the
commission shall not in the performance of its duties, be subject
to the direction or control of any person or authority." This
however has not been the case as it has been marred by political
interference and it is not independent hence its ineffectiveness.
This commission
has the power to arrest, search and seize, its mandate is mainly
to highlight management weakness and prevent corrupt practices in
both public and private sectors. The Act gives the commission the
right to prosecute any offences under the Act, after receiving directions
from the Director of Public Prosecution. There is however no protection
of the whistleblowers, which is a major oversight.
Botswana
The
Corruption and Economic Crime Act of 1994 established the Directorate
on Corruption and Economic Crime and it has adequate government
support in terms of manpower and financial resources made available
to it. The Directorate has the power to investigate any public official
as well as to educate the public on the evils of corruption. However
it is a public office and its success is dependent on the government
in power and this undermines its independence.
Namibia
Namibia’s
Ombudsman’s office has the power to determine corruption cases and
it does so as the office was empowered to investigate all instances
of alleged corruption and the misappropriation of public funds and
forward them to the relevant authorities. This office has however
not been successful because it is not easily accessible as the general
public does not know of its existence and its functions. It is also
not independent as the Ombudsman is appointed by the president and
it is a public office.
Sierra Leone
The
Anti Corruption Act 2000 creates the Anti Corruption Commission,
this commission is through a presidential appointment which is not
desirable. Its functions include investigation of alleged corrupt
practices, taking steps to eradicate corruption, examining the practices
and procedures of government departments and public education. This
commission is limited in that it lacks independence and it does
not have the right to prosecute. It is considered progressive because
it protects whistleblowers and it deals effectively with those make
who false reports.
Tanzania
Tanzania
has the longest serving anti-corruption commission, the Prevention
of Corruption Directorate, which was established in 1968. The government
of Tanzania has acknowledged that support from the civil society,
the media and the private sector is essential for the successful
implementation of an anti-corruption strategy. The Directorate is
empowered to have public awareness programmes on how corruption
hinders the development of a country and how it ultimately damages
the fabric of society.
This directorate
also recognizes the need for the protection of whistleblowers and
that this information of protection has to be disseminated to the
public for them to co-operate. It has not shown a decrease in the
levels of corruption even though the government has demonstrated
its political acceptance of the anti-corruption drive.
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