Luís de Sousa, Research Fellow, Instituto de Ciências Sociais, Universidade de Lisboa (ICS-ULisboa), e-mail: luis.sousa@ics.ulisboa.pt

The growth of ACAs

Over the past three decades, and especially after the signing of the United Nations Convention of Corruption (UNCAC), international standards have converged regarding the need to increase specialization and coordination in the field of corruption control in terms of both prevention and containment. One proposed option for doing this was to set up a body, bodies, or persons specialised in overseeing and coordinating the implementation of anti-corruption policies, producing and disseminating knowledge about corruption prevention (article 6, UNCAC), and/or combating corruption through law enforcement (article 36, UNCAC).

Since then, there has been an unparallel mushrooming of ACAs due to a confluence of efforts, intentions, and expectations:

• by multi- and bi-lateral donors as part of structural adjustment programmes and borrowing conditionality
  • by a fast-growing anti-corruption industry who regards ACAs as an appealing consultancy product
  • by public pressure for visible results in the fight of grand corruption
  • by incumbents under domestic and international pressure, desperate to obtain reputational gains.

This tendency to see institutional responses to corruption as instrumental to reputational deficits is particularly visible in countries with high public debts, but also extends to those going through a period of turbulence concerning ethical standards in public life.

Nowadays, a country’s perceived capacity to fight corruption is one among several political risk factors that are used to evaluate a country’s borrowing capacity or its ability to attract investment. This explains why some countries have prioritised the fight against corruption in their agendas and have implemented a series of anti-corruption reforms, including the creation of specialised bodies.

How can we explain this growth in ACAs?

When countries seek to address a similar problem with institutional solutions, in a context where we know very little of what actually works and why, the end-product is likely to suffer from what DiMaggio and Powell (1983) called “institutional isomorphism”, through persuasion, imitation or normalisation:

• In countries where the conventional investigative (judicial) authorities are pervasively corrupt, thoroughly discredited and unfit for the job, and the country is going through major political, economic and social transformations supported or overseen by influential external actors, governments may be persuaded by these same external actors to adopt this type of institutional response (this is what we call coercive institutional isomorphism or, in its milder form, “conditionality”).

• Sometimes governments in the midst of a political crisis caused by a corruption scandal or succession of scandals, and the perceived incapacity to handle them, react to uncertainty by simply imitating a “model” available elsewhere. Basically, governments “compensate” for the lack of comparative knowledge, time, and skills to conduct a feasibility study by praising the “great achievements” of a given foreign agency, while ignoring the context and conditions that explain such alleged success. As Beckert (2010) suggested, imitation is often motivated by political “disorientation rather than by conviction that the model to be imitated is superior”.

• ACAs have also become a norm in the anti-corruption field. They are increasingly perceived as an optimal solution to problems of coordination, capacity, independence, knowledge-production, etc. They are also increasingly regarded as attractive institutional solutions to a complex, transnational, and systemic problem. To that end, governments often adopt these specialised bodies with the expectation that this will somehow upgrade the existing integrity system and deliver better results in the fight against corruption. They do so by looking at the repertoire of possible solutions; often delivered to them by experts, international review panels, and international anti-corruption fora and networks, to try to see which solution would be more economical (from a political and financial perspective) and fit most adequately with the existing legal and institutional framework. In this case, governments are not pushed or pulled to a particular institutional design, but still imitate a given model as a means of circumventing some of the learning costs associated with establishing a new institutional design. This is what is often referred to as normative institutional isomorphism.

Despite this tendency for institutional isomorphism, the world of ACAs is more colourful than it seems at first sight. There exists a variety of institutional arrangements:

• Specialised bodies with multiple competences: This refers to anti-corruption agencies sensu stricto with preventive and enforcement powers and a wide spectrum of activities. Examples: the Latvian KNAB or the NSW ICAC.
• Specialised units within existing law enforcement and prosecutorial bodies. Example: the Romanian National Anti-Corruption Directorate (DNA) or the Croatian USKOK.
• Specialised bodies with exclusively preventive competences. Example: the Portuguese Corruption Prevention Council or the French Anti-corruption Agency.

These categories are neither exhaustive nor exclusive. Some agencies have seen their mandates upgraded in recent years, from a strictly prevention role to an investigative one. Whether such powers have been used to their full extent, however, is a matter of dispute.

What is the function of ACAs?

ACAs are specialised bodies, hence they are expected to contribute to the fight against corruption in an independent, innovative and knowledge-based manner (de Sousa 2010). This is the main reason for increasing specialization: we cannot fight what we don’t know or are unable to understand. This “knowledge production and dissemination” imperative is set out under article 6 of the UNCAC.

ACAs can bring added value to integrity systems through the combination of various specialized competences:

• Coordination capacity (to play a leading role in implementing national strategies and action plans).
• Investigative capacity (i.e., to pre-investigate, investigate or even instruct the case, that is, to initiate infringement procedures).
• Preventive capacity (through counselling, training, risk analysis, legal opinions, reviewing of integrity systems, surveying, etc.).
• Oversight and enforcement of ethics regulations (such as COI laws, financial disclosure laws, etc.).

Key features or principles to be taken into consideration when putting in place an ACA

ACAs are not silver-bullet solutions to (perceived) declining ethical standards in public life or mounting corruption and serious misconduct allegations, but they can help to upgrade the existing legal and institutional anti-corruption framework through better coordination and specialisation.

Prior to taking any decision of this nature, some considerations need to be made:

Principle 1: Consider why, what for and how to set up an ACA

• Carry out a feasibility study to inform the legislator about constraints and enablers.
• Gather substantive evidence from experts, practitioners, and CSOs in the field.
• Ensure a high-quality and participative legislative process.

Principle 2: If there is sufficient evidence that the potential benefits of setting up an ACA outweigh the costs, careful consideration should be given to the following aspects when designing the agency:

• The agency’s mission, core values, general goals and specific objectives must fit into the broader anti-corruption strategy and action plan
• The agency must have the formal capacity and the necessary operational autonomy to carry out its mission without political interference
• Shared competences and inter-institutional cooperation must be considered beforehand – ACAs are part of an integrity system; hence it must share some of its competences and functions with other public bodies
• The organisation’s structure must be defined in relation to its competences (goodness of fit between structure and function)
• Ponder all resource implications – funding, staffing, IT, premises and equipment – to ensure that the agency fulfils its mission and achieves the proposed objectives (goodness of fit between goals and means)
• A clear procedure for reviewing the agency’s mandate to respond to new challenges must be set forth – flexibility and adaptability are essential to a successful institutional design.

Principle 3: Avoid vagueness in the definition of the ACA’s mission, goals and objectives, both at the statutory and strategic levels.

• More often than not, ACAs’ statutes set general goals such as “improving the fight against corruption nationwide” or “improving prevention in the public sector”
• Few actually define specific objectives, such as “reduce integrity risks in urban planning”, “set up a quality-oriented verification procedure for asset declarations”, or clearly defined expected outputs and outcomes of their work in their strategic plans.
• This level of vagueness in the organization’s strategic objectives raises an attribution problem: it makes it difficult to assess how successful they have been and to give them credit for their achievements (Johnsøn et al. 2011)
  • ACAs should disaggregate their strategic goals as much as possible. Unpacking is necessary in order to assess their added value at two levels of analysis:
    • what is their original contribution; in other words, what do they deliver that other entities would not be able to deliver at a reasonable cost (contribution analysis); and
    • how much of what has changed is owed to their intervention (attribution analysis).

Principle4: Motivated, experienced, and inspiring leadership and a transparent and merit-based recruitment policy are important to the agency’s performance.

• Most ACAs tend to be small units. Like in other small organisations, highly motivated, experienced, and inspiring leadership makes a difference to ACAs’ overall performance.
• Chairpersons tend to be politically appointed (few ACAs have open competitive recruitment procedures for leadership positions), but at least some degree of transparency and accountability should be ensured through parliamentary hearings of shortlisted candidates and their mission statements for the job.
• Recruitment should be optimised. Specialised knowledge on corruption is essential to the role and performance of ACAs. The inadequacy of recruitment and training procedures is one of the major causes for the lack of specialisation. Merit-based recruitment procedures, integrity screening of candidates, security of tenure, and specialized training need to be considered.

Principle 5: Research needs to be at the core of ACAs’ work.

• ACAs have a quasi-regulatory function in the field of public ethics. They act in a way as to detect, prevent and, in some cases, investigate integrity risks and what is perceived to be a conduct or action deviant from legal norms and standardised expectations governing an office of entrusted authority. They often have norm-setting competences (either by prescribing regulations or by issuing recommendations on anti-corruption legislation), oversight functions and some enforcement capacity of ethics regimes, such as asset disclosure, political financing, compliance regimes, etc. Because ACAs often find themselves in the eye of the storm and are expected to deliver solutions that can help restore public confidence, it is important that their intervention is informed and evidenced-based.
• Knowledge is the key to success. One of the main reasons for setting up an ACA is the need to address corruption in a knowledge-based manner, in other words, to carry out significant empirical research about the causes, mechanisms, attitudes, contexts and consequences of corruption in order to make evidence-based recommendations that can help to improve control policies and avoid the pitfall of “the (anti)corruption folklore”, as coined by Gunnar Myrdal. Fighting corruption is not a reality show. Many achievements in this domain have less to do with heated parliamentary debates and the razmataz of yet another anti-corruption law, and more to do with the discrete daily work of specialised bodies and thousands of public officials who take an active role in safeguarding and upholding ethical standards in public life.

References

Beckert, J. (2010). Institutional Isomorphism Revisited: Convergence and Divergence in Institutional Change. Sociological Theory, 28(2), 150-166.

de Sousa, L. (2010) Anti-corruption agencies: between empowerment and irrelevance. Crime, Law and Social Change, 53, 5–22.

DiMaggio, P., & Powell, W. (1983). The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields. American Sociological Review, 48(2), 147-160.

Johnsøn, L.; Hechler, H.; de Sousa, L.; and Mathisen, H. (2011). How to monitor and evaluate anti-corruption agencies: Guidelines for agencies, donors, and evaluators. Bergen: Chr. Michelsen Institute (U4 Issue 2011:8) 84 p. Available online: https://www.cmi.no/publications/4171-how-to-monitor-and-evaluate-anti-corruption