chapter  12
17 Pages

Post- conflict reconstruction, legitimacy and anti- corruption commissions

ByJOHN HEILBRUNN

This chapter traces the international development of anti-corruption commissions (ACCs) with a focus on post-conflict and fragile states. It explores the extent to which ACCs have become integral actors in post-conflict reconstruction settings. The chapter argues that ACCs have the potential to be effective in the fight against corruption. It notes that international donors and the diplomatic community have identified the reduction of corruption as a priority for rebuilding legitimacy in post-conflict and fragile states. Among the factors motivating leaders of fragile states to establish ACCs is the signing of the United Nations Convention against Corruption (UNCAC). With signatories from 140 countries, the UNCAC asks policymakers to comply with Article 6, Section 1 of the Convention which states: ‘Each State Party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies, as appropriate, that prevent corruption.’1 In many countries, the establishment of ACCs, some with mandates to investigate malfeasance and others with a focus on corruption prevention, followed the ratification of UNCAC. However, ACCs have a mixed record of achievements, even though they have come to be seen as one of the key instruments for reducing corruption in developing countries. The sheer number of ACCs around the world might suffice to mute critics who have suggested that ACCs are ineffective and costly diversions of scarce reconstruction funds (Heilbrunn 2006). Critical assessments of ACCs cite their failure to reduce corruption in a meaningful manner (De Maria 2008). Critics note that ACCs are often understaffed and they lack an adequate budget to ensure success. This problem of understaffing and inadequate training is especially a challenge for ACCs in post-conflict states that can only handle a small number of cases. This lack of capacity is a particular disadvantage when they negotiate with individuals who have vested interests in corrupt arrangements. It follows that for many observers, in such an environment, cleaning up corruption is akin to clearing the Augean stables. However, as this chapter argues, for governments in many post-conflict countries the function of establishing ACCs is not necessarily to address corruption directly, but to signal seriousness (whether genuine

or not) about addressing the problem, and to maintain the support of international actors. Since 1995, shifts in international norms have resulted in declining tolerance for corruption. This intolerance has found expression in pressures that international donors have put on governments to establish ACCs, in some of the most unlikely places. Most of these are modelled, to some extent, on the organisational structures and operational imperatives of Hong Kong’s Independent Commission against Corruption (ICAC) or Singapore’s Corrupt Practices Investigation Bureau (CPIB). Whereas in 1980, few ACCs existed worldwide, by 2010, ACCs had become commonplace, operating under a variety of titles. Some ACCs have the authority both to investigate and prosecute. Others engage in prevention by passing laws, establishing bureaucratic rules and closing loopholes that venal individuals exploit for their private gain. Investigation and prevention often enhance the public awareness work that forms the third arena of ACC activities. ACCs are state agencies that receive complaints about malfeasance; investigate alleged bribery, graft and fraud; develop prevention strategies and help citizens understand the costs that corruption imposes upon public life. In post-conflict states, ACCs can demonstrate to international donors that the government is intolerant of corrupt practices. In most instances, the government first nominates the ACC’s director, associate director and senior staff, and parliamentary select committees vet and approve the appointments. In principle, once the parliamentary committees confirm the appointments, the commission begins operations and within a specified time, generates periodic reports. In addition, many ACCs have oversight boards to advise on investigations and prevent abuses of powers, but which also help to protect ACCs against political influence, especially from the executive branch. Only an independent ACC can initiate investigations, recommend prosecution and register abuses of position by influential members of society without threat of reprisal or dismissal. In practice, however, executive interference is common; it undermines investigations of politically sensitive cases, and more importantly creates a sense that an ACC is a token agency or, worse, a tool to redress political debts. Thus, ACCs that lack independence are unlikely to reduce corruption. Independence is therefore a crucial element of an ACC’s effectiveness and contribution in the fight against corruption. This chapter examines the role of ACCs in fighting corruption in postconflict environments. It contests well-known arguments that ACCs are unsuccessful in their individual battles against corruption (Doig et al. 2007; Heilbrunn 2004), and proposes instead that they are better seen as part of a lengthy process of institutional and normative change in post-conflict societies, in which the rules of the game adjust to new norms that are intolerant of corruption and impunity. One of the unique aspects of the role of ACCs in post-conflict countries is the involvement of international

actors in post-conflict reconstruction and peacebuilding, and their interest in and push for credible governance reforms, including anti-corruption reforms. In cases where international involvement is deep, and might even involve the sharing of sovereign functions, local political elites must demonstrate to international actors – whether they are regional organisations, multilateral agencies, or bilateral donors – their credible commitment to reforms. While the establishment of ACCs is one way to signal the intention to take the issue of corruption seriously, actual change in the rules of the game takes time. Hence, this chapter suggests that ultimately, assessing the impact of ACCs in post-conflict states can only be made in the long term. ACCs are no quick fix for the problem of corruption. Norm changes, especially in areas such as anti-corruption, require lengthy interventions and are often accompanied by challenges that deny any linearity to the process. The remainder of this chapter is divided into four parts. The next section briefly discusses the relationship between corruption and state fragility, focusing on the impact of corruption on state legitimacy and ways in which ACCs can address these problems. In the second section, the chapter examines the history of ACCs in Hong Kong and Singapore, which have served as best practices for many countries that have established ACCs. The third section considers the cases of two ACCs established in post-conflict or weak states: Sierra Leone and Timor-Leste. Finally, the conclusion returns to the issue of post-conflict state fragility and legitimacy, assessing the extent of the contribution that ACCs can make to the (re)legitimation of the state after conflict.