Born to fail? The plight of anti-graft watchdogs

Arusha. Unlike other state organs, such as the police or army, anti-corruption agencies in African countries go by different names, which are also habitually changed every time there is change of guard in the highest echelons of power, or each time the rulers of the day feel so.

In Tanzania, it is the Prevention and Combating of Corruption Bureau (PCCB), while it is the Ethics and Anti-Corruption Commission (EACC) in Kenya. For the latter, the anti-graft agency has changed names several times in the last two decades.

PCCB, too, has had names change. It began as the Anti-Corruption Squad in the 1970s.

Yet all anti-corruption agencies all over the continent are formed with one common official task: to fight graft which analysts believe has seriously impacted on the development of many countries, affecting the provision of social services and draining economies.

Legal experts from across the continent who met in Nairobi recently during a conference organised by the Pan African Lawyers Union (Palu), a body of lawyers affiliated to the African Union (AU) and based in Arusha, discussed in length the challenges facing the anti-graft agencies and realised that Africa has a long way to win the war.

It emerged during the three days of intense discussions at Strathmore University that the way corruption has become sophisticated, often involving big businesses and leaders in key positions means eradicating it could be a Herculean task.

Essentially, the agencies are set up to gather information on corruption, but in other countries they have been empowered to prosecute suspects. The latter mandate has been favoured as it is seen to give them teeth to bite when necessary.

Other core activities of anti-corruption bodies are investigating, tracing and seizure of illegally acquired assets. They also freeze ill-gotten wealth and assist in the prosecution process. For those agencies with powers to prosecute, they can arrest and charge the suspects.

But anti-corruption agencies have other powers that may not be known to many. One of these is seeking alternative dispute resolution in cases that are complicated and which can lead to a win-win situation to the disputing parties.

These are mainly business disputes involving billions of shillings or millions of dollars. The anti-graft bodies come in because such disputes have elements of corruption.

Creating awareness

Other roles include education and creating awareness among the public on the dangers of corruption, vetting and clearing public officials, administering the Code of Conduct and Ethics and jurisdiction over public and private sectors as well as overseeing the ethics and moral issues in the society, focusing mainly on public officials.

Yet most corruption watchdogs have been at the receiving end of criticism over inefficiency and lack of clout. They have been dismissed as extensions of political offices of ruling elites – in many cases not targeting per se the corrupt, but ‘enemies’ of those in power.

Patrick Owiny, a senior official of Kenya’s EACC, says there are important factors no anti-corruption agency can deliver without. These include the political will and public intolerance (to corruption) and support on efforts to eradicate the vice.

The performance of graft bodies in any country would also depend on a strong and independent civil society and media, he told the conference, adding that the economic environment of a country at any particular time would also influence on the fight against graft.

But Mbithi, the executive director of Transparency International - Kenya, sees things differently. Anti-graft agencies can become scapegoats if they are left to fight corruption alone.

He said many corruption cases often touched the politically powerful individuals and that without the political will, the watchdogs -which are themselves government institutions - cannot do much to prevent high level graft scams.

He challenged the African countries to copy the Hong Kong model in which anti-corruption agencies are law enforcement agencies playing the role of prevention and prosecution of suspects.

“Criminal law enforcement aspects such as fines has its advantages. You can see the results in a shorter time than in public awareness,” he said.

The respected lawyer decried the fact that most watchdogs in Africa are not independent – they operate under political interference.

“The success of the war against corruption depends to some extent on the lawyers and impunity. Generally, the state is a creation of the law and operates under the law,” he said.

He cited economic crime cases in his home country of Kenya where those convicted end up being fined KSh500,000 for embezzling KSh8.9 million or others where some KSh250 million was lost but the culprit is fined to pay a mere KSh2 million.

“In such cases, corruption suspects end up thanking the judges,” he said, causing laughter among the participants.

The apparent little impact of anti-graft agencies in Africa has led to some scholars arguing that they have failed and that they should either be scrapped or abolished and give the powers to parliaments.

However, in the discussions which followed Mr Mbithi, stressed the need to let anti-corruption agencies operate without undue interference from the governments.

“Give them space to do their work,” he said, urging African states to emulate Botswana, Rwanda and South Africa which have given full mandate to their respective anti-graft agencies to operate with minimum interference.

He said only 10 per cent of corruption cases were reported in Africa, pointing a finger at another equally dismaying deterrence: “The biggest business people in Africa are also leading politicians or those closely linked to the top officials.”

Ms Aisha Simba, a Tanzanian participant, said the war against graft “hit a wall” from the beginning because top politicians failed to lead by example.

She noted that the lack of political will to fight corruption in many countries manifests itself mostly in the refusal by senior public servants and politicians to declare their wealth.

“This has been the case in Tanzania where senior public officials do not ordinarily declare their wealth before the Ethics Commission,” she said, “There have also been reports that scores of Tanzanians have stashed millions of ill-gotten wealth in overseas accounts.”

Patricia Atim P’Odong from the Makerere University’s School of Law said although Uganda has an Anti-Corruption Court, the capacity of the staff working for it was low.

“These institutions are designed to fail. They were created to impress the international donor community,” she said, noting that decentralisation of the local government in her country has fuelled corruption.

In a 2002 review for the World Bank, Prof Patrick Meagher of the IRIS Center, University of Maryland, noted that the limitations of anti-corruption agencies are usually much more severe than people realise.

“Where the agency is not structurally independent, then it can be no more powerful than its bureaucratic and political patrons,” he said.