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Crafting Anti-Corruption policy from ACC judgements

26 July 2018 at 19:15 | 1715 views

By Amira Hudroge

Anti-corruption is one of the most topical rule of law concerns in Sierra Leone. The efficiency of rule of law institutions is optimized when they operate collaboratively and in good faith and are not just an expression of nomocracy but of liberal democracy, since these seemingly bureaucratic institutions can equally be employed as political pawns. Corruption has been a longstanding hallmark of Sierra Leonean politics across political regimes. Corruption continues to affect the nation’s economic development as can be seen in the effects of unlawful procurement processes for highly lucrative government contracts, and of tax evasion in the extractive industry. It also affects the exercise of socio-economic rights in the form of impeded access to basic public amenities. Against allegations of political interference and bribery within the justice system, corruption affects the consolidation of the rule of law. Clearly, corruption touches and erodes Sierra Leonean lives in a spectrum of ways daily.

The ACC was established in 2000 for the investigation and prosecution of corrupt practices. It also houses prophylactic wings such as the Public Education and External Outreach Department and the Systems and Processes Department (SPRD). The former addresses detrimental cultural attitudes towards corruption and informs the public about the ACC’s work. The SPRD takes a systemically reformative approach to combating the virus of corruption by seeking to identify “loop holes of corruption in the MDAs” and replace them with transparent and accountable systems. The SPRD is comprised of 3 units; the Systems and Processes Review, Monitoring and Compliance, and Policy and Ethics Units. The Systems and Review unit seeks to identify structural vulnerabilities and develop best practices within MDAs, the Monitoring and Compliance unit monitors MDAs to ensure they comply with systems and processes’ review recommendations, and the Policy and Ethics Unit develops and implements ethical procedures for MDAs and anti-corruption policies in both private and public sectors.

As of 2016, the ACC had charged 51 cases to court in total (CARL Press, Max Katta) and by 2017, it put the number of convictions secured at 105 i.e. excluding the outcomes on appeal (The Sierra Leone Telegraph, Abdul Rashid Thomas.) The public spectacle value of the trials has translated into somewhat emotive media coverage, but intensive PR efforts by the ACC have also secured public attention for the SPRD, although to a lesser degree. This is understandable, since trials of government officials are publically perceived as political indictments, (the ACC would beg to differ), and while politics can be populist and emotive, policy speaks to “drier” perhaps less titillating Science, or at least purports to. Simply put, the development of anti-corruption policy is not sexy.

On 1st July 2016, the Access Report, a minor policy initiative funded by the U.S. Government’s Bureau for Law Enforcement Affairs was submitted to CARL and CGG. The work, a curious hybrid between policy developmental work and conventional case reporting, was inspired by a deeply considered exhortation from leading authorities in anti-corruption policy for it to be developed by employing contextually rich case studies which fuse quantitative and qualitative research methods. While the quantitative may discern generalities and quantifiable trends from structured data aggregation, the qualitative may discern key particularities which give a human dimension to the subject. Interviews of knowledgeable insiders and proximate parties may be both quantitative and qualitative depending on their design. Beyond ascertaining how things worked, qualitative analysis really aims to secure subjectivities; what the sentiments were around work. In this sense, it is discursive analysis, i.e. of the discourse surrounding the case; the method predominantly employed in the Access Report.

Sierra Leone ranks 93 out of 113 countries on the World Justice Project’s rule of law index for 2017-2018 and donor funded justice sector related projects are essentially rule of law consolidation projects. The Access Report typified the role of the rule of raw in enhancing democratic governance, with the ACC, like other watchdog institutions at the hub, straddling the divide between law and governance, using the supreme authority of the law to optimize governance through accountability processes that involve transparency. Naturally then, pitted against the scale of corruption, the very nature of the process and high public expectations, the seeming hyper-mediatization of the ACC’s activities is actually vital. The AU and UN conventions against corruption recognize that added publicity and pervasive dissemination of anti-corruption efforts are critical components of the anti-corruption machinery, imposing such dissemination obligations on anti-corruption agencies. In line with this paradigm and with one fell swoop, the Access Report sought to, on one hand, detect gaps in law and policy formulation/implementation that could help foster corruption, and, on the other, to counter the concerns raised by the disturbing protracted neglect of case reporting. As ss. 170 (1) and (2) of the 1991 Constitution identify common law (court decisions), as one source of law, the lack of case reporting is in itself a major rule of law concern since it engenders whopping access to information, judicial transparency and accountability issues, which themselves raise a host of rights issues. When I previously produced a case reporting volume published by the ACC in 2015; “The Anti-Commission Case Reports,” there was a lot of interest expressed by stalwart members of the justice sector in revitalizing and revamping the area of case reporting, but alas, the glimmering lights all too quickly got siphoned off into that ubiquitous black hole, we regretfully hear so much about.

The Access Report’s Findings and Recommendations section was geared towards realizing the aims of its wider “Accountable Governance, Justice and Security Project” to improve the effectiveness of justice and security institutions and government practices. The Report sought also to increase access to information and to enhance institutional transparency, in order to further reinforce accountability, civic participation and public confidence. However, since the work identifies issues in both law and policy innovation/implementation at the levels of the commission of offence and of the trial process, it is not sensu strictissimo policy-focused, since it evaluates both potentially legislative and policy reformative action; a near inevitability, as the policy development process operates as a continuous feedback loop at various stages of governmental action, at its most rudimentary mirroring GAP analysis.

Anti-corruption policy development is still very much a budding field and like all public policy must deal with the unpredictability of human nature. The sheer breadth and complexity of the phenomenon collectively labeled corruption, the infinitely varied nature of reality and the distinctive nature of corruption in the developed and in the developing world, are why anti-corruption policy development must be highly contextualized and why the qualitative method must go hand in hand with the quantitative. And though we must forge on bravely, the truth is that there is at least for now, limited empirical evidence on what works; the efficacy of anti-corruption trials and other modes of anti-corruption is unclear. “The messiness of reality makes it very difficult to figure out what works, and to isolate the impact of any one intervention(…)long-term behavioural change(…)is(…)very difficult to measure.” What is certain is that any impact that reformative efforts might have at all, depends on enforcement and responsive governance.

During a brief spell as lead in the Policy Unit of the ACC, I learned that target MDAs for an institutional anti-corruption policies’ project were determined by studies done by the Systems and Processes review unit, in conjunction with decisions taken by the ACC Management, donor directives, the preponderance of public complaints and trials. No clear research and drafting methodology behind these works was articulated. Apart from hard copies of completed policies, there were neither any e-docs nor e-databases indicative of a process. Neither qualitative nor quantitative research methodologies were apparently being employed in the true sense. Research is a highly intuitive process, largely at the analytical stage, not at the outset of garnering information, when intuition may only inform a broad framework of action, not replace it. “Surveys” of entire institutions were conducted with only one questionnaire, leading questions were employed during interviews, and the data from either of these sources might not necessarily inform the progress of the process, no broad stroke preliminary analyses of all this data being made for contextualization. This reliance on a slapdash, wham bam, ad hoc, largely predetermined rather than truly investigative approach and on drafting meetings with institutional reps., churns out mainly uninventive works and wastes great opportunities to devise creative solutions. Fusing qualitative and quantitative analyses of more widely conducted surveys, I surmised that unlike most issues raised which we were either not mandated or ill-equipped to handle, the lynchpin of combating corruption here was through increasing awareness of the activities of internal disciplinary mechanisms, enhancing their efficiency and improving their interaction with the ACC. This experience and the salience of the Findings made in the Access Report lead me to believe that the ACC’s policy development methodology would be greatly enriched, by absorbing the “fused quantitative and qualitative methods within contextually rich case studies” approach.

Although the Access Report is a limited study, I am of the conviction that twice or even thrice the number of sector specific cases could be reported and analyzed in like manner. This would of course, be more time and energy consuming, but many hands make light work. Equally, this approach could be employed across the board in justice sector institutions and to areas problematic for the consolidation of the rule of law; for e.g. MSGWCA could funnel the conclusions derived from contextually rich SGBV case studies into both its pre and post legislative enactment policies in that area of dire urgency and JSCO could use the same method with regards to corporate responsibility.

The Report’s Findings are subsumed under the headings; Information and Knowledge Management; Conspiracy and Procurement; Financial Control and Management and Diligent Case Preparation. The selection of cases being limited (8/30+ ACC judgments), the Findings are based on a circumscribed view of the available jurisprudence; we cannot avouch that they would subsist as is, were the parameters of this review to be drawn more widely. However, the salience of issues identified as being consistent across most of the 8 judgments, selected only on the basis of their notoriety, and of the fact of their being tried during the single tenure of Former Commissioner Joseph Kamara (2010 to 2016), is exceedingly persuasive. The finding that; “the MDAs concerned failed to make IM/KM values and principles central to their organizational management styles…resulting in a generalized practice/culture of non-reporting,” is credible because it is derived from 7 out of 8 cases. The same is true of a lot of the Findings. By contrast, the Finding that; “The absence of provisions in the GBAA/FMR on the Finance Officer (FO) and the Director of Financial Resources or the relationship between them fostered a culture of programme officers/managers hogging the financial management of public/donor funds, (and) bypassing FOs,” is derived from intra and not inter judgment analyses. However, the validity of these mono-sourced analyses is substantiated by analyses of laws and interviews; methodological authenticity that renders the Report’s incisive conclusions compelling.

The recommendation that; “IM and KM should be incorporated as key values and essential modus operandi into current MDA management styles and strategies,” and that; “Durable KM/IM systems should be built,” would seem to apply across all MDAs including the ACC. My experience in trying to access information from the ACC and other MDAs testifies to this generalized problem. The ACC largely does not maintain critical data logs and retrieving judgments and information from it was quite the rigmarole. Additionally, IM/KM is intricately woven into the four cross-cutting topics above and would have tightened the efficiency of the controls in each of these areas, had it been prioritized; for e.g. IM/KM weaknesses likely contributed to some less than optimal case preparation. Faced with the perennial research conundrum of how knowledge can be consolidated and human efforts maximized in the absence of a foundation of knowledge, the ACC should take the lead and put its own house in order first.

The Report is geared towards policymakers, members of the legal profession and the justice sector and in its current form should be accessible to the interested public. Its reach would be wider if further broken down, but then the value of certain nuances and complexities would be lost. Its public confidence utility is best achieved when employed by policy advocates in their public discussions as the credible basis supporting their policy positions and work. I opted to present moderately detailed case reports over essential ones to enable their future reliable use by policy makers and litigators and as a justifying frame of reference for my process and conclusions. The minor analysis of the public procurement process based on the PPA 2004 and PPR 2006 was completed before the ratification of the PPA 2016 in February of the same year. Insightful research into areas under reform is naturally quite arduous, but in this case proved constructive since the foci of our Recommendations were not addressed by the new law, hearkening back to the call by anti-corruption experts for the political framework conditions within which change is negotiated to itself be the subject of reform. Again, it might reinforce reformative studies conducted prior to parliamentary review, if these were infused with the method endorsed here.

External Consultants grapple with the same constraints as other unsupported seekers, the usual suspects: lack of electricity, water, poor library facilities, poor internet, a culture of sexual harassment, the alarming tendency for institutional knowledge to sometimes seem to reside purely within living repositories, again invoking IM/KM. That said, and notwithstanding the discrete selection of cases covered by the Access Report, its methodology and conclusions present and represent a unique opportunity to begin to address the gap in case reporting, while simultaneously developing impactful and effective policy. Local limitations then pale in comparison to this beacon. Bearing these contrasts in mind, I readily admit that unearthing previously concealed information, assembling and presenting it in a novel light, does come with the territory and that if anything, it is that I feel instead privileged in bringing to birth the modest but solid foundations on which future seekers, innovators and strategists can sturdily build…should they choose to do so. “Everything begins with an idea.” ― Earl Nightingale.

Amira Hudroge is an independent consultant that has worked as a legal and policy analyst for the ACC, CARL and CGG. She has also worked in International Criminal Tribunals including the Special Court and the ICC. She holds an LLB (Univ. of Westminster) and LLM (UCL).

Source: The Access Report

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