The first phase of developing strategies against Corruption is the assessment of the extent and nature of corruption in a given country or sector

The first phase in crafting and implementing an anti-corruption strategy entails the assessment of the corruption situation in the subject country and the state of institutions necessary for the anti-corruption strategy. In this phase two Tools are identified as follows:

TOOL #1:

ASSESSMENT OF THE NATURE AND EXTENT OF CORRUPTION

The first tool in fighting corruption is the quantitative measuring of the extent of corruption in the country or within a specific target sector. This is necessary prior to the development of an anticorruption strategy to, among other things, set priorities, make preliminary estimates of how long the strategy will last and the resources required to implement it.

Assessment will also be necessary in the follow-up phase to help assess progress against the baseline data gathered at the preliminary stage.

Assessment should include objective measurements of what is actually occurring and subjective assessments of how those involved perceive or understand what is occurring. This is because people's reactions to anti-corruption efforts are often governed by their own perceptions.

The types of information to be sought in the assessment stage include information about:

•  Where corruption is occurring;

•  What types of corruption are occurring;

•  The costs and effects of corruption;

•  Factors that contribute to or are associated with corruption; and

•  The subjective perception of corruption by those involved/affected by it.

The methods to be used in gathering the data are as important as the data to be collected. This is because corruption is, by its nature, a covert activity for which accurate information is hard to obtain and where many of those involved have a motive for distorting or falsifying information. To obtain an accurate assessment, therefore, it is essential to ensure diversity in the sources and methods used. The major techniques for gathering information are:

•  Desk Reviews : This entails the gathering of as much data as possible from pre-existing sources such as previous research or assessments by academics, interest groups, public officials, auditors-general or ombudsmen, as well as information from media reports.

•  Surveys : This is the technique of gathering information from responses to written questionnaires or verbal interviews to the general populations or samples specifically chosen for comparison with other samples. Where samples are used, they must be representative of the general population. Sample comparisons are useful but can only be valid only if the samples were correctly selected and identified in the first place. It is advisable to safeguard anonymity and confidentiality of those being interviewed - corrupt officials will not provide information if they fear disciplinary or criminal sanctions, and many victims may also fear retaliation if they provide information.

The formulation of survey instruments is also critical. Questions must be drafted in a way that can be understood by all those to be surveyed, regardless of background or educational level. The question must be understood in the same way by all survey respondents. Where respondents are illiterate or deemed unlikely to respond to a written questionnaire, telephone or personal interviews are often used, with interviewers trained to use the same terminology.

•  Focus Groups : In this technique, targeted interest groups in Government and society hold in-depth discussion sessions. The technique usually produces qualitative rather than quantitative assessments, including detailed information concerning views on corruption, precipitating causes of corruption and valuable ideas on how the Government can combat it. Specific agendas for focus groups can be set in advance, or developed individually, either as the group starts its work or by advance consultations with the participants. Focus groups can also be used to generate preliminary assessments as the basis of further research, but should not be the only method used for such assessments.

•  Case Studies : This techniques involves an in-depth examination of specific occurrences of corruption to identify the type of corruption involved, exactly how it occurred, who was involved and in what manner, what impact the occurrence had, what was done as a result, and the impact of any action taken. Information is usually gathered by interviewing those involved, although other sources, such as court documents or reports, may also be used if reliable. Case studies are particularly useful in assessing the process of corruption and the relationships that exist between participants, observers and others, as well as between causal or contributing factors. They are also useful in educating officials and members of the public about corruption. As with other areas of research, care in the selection or sampling of cases is important. Cases may be chosen as "typical" examples of a particular problem, for example, or attempts may be made to identify a series of cases that exemplify the full range of a particular problem or of corruption in general.

•  Field Observations : In this technique, observers are sent to monitor specific activities directly. Field observation, however, is expensive and time-consuming to permit its widespread use; it is usually limited to the follow-up of other, more general, methods and to detailed examinations of particular problem areas. Field observers can be directed to gather and report information about any aspect of the activity being observed, and this can generate data not available using the majority of other methods, for example the speed, efficiency or courtesy with which public servants interact with the public. In one recent example, as part of a comprehensive assessment of judicial integrity and capacity in Nigeria , field observers attended courts and reported on whether they were adjourning on time and how many hours a day they were actually sitting.

In many cases, it is difficult to distinguish between observers (who simply to gather data for research purposes) and investigative operations (who identify wrongdoers and gather the evidence needed for prosecution or discipline). That is particularly true where observers are working under cover or anonymously, which will often be the case so as to ensure that their presence does not influence the conduct they are observing. Field observers should bear in mind that constraints may apply to covert or anonymous observation or may operate to prevent the use of information thus obtained against offenders in any subsequent prosecution. They should also be given appropriate guidelines on when to notify law enforcement agencies if serious wrongdoing is observed.

•  Professional Assessment of Legal and other Provisions : In most countries, criminal and administrative law provisions intended to prevent, deter or control corruption already exist and range from criminal offences to breaches of professional codes of conduct or standards of practice. An assessment of those should be conducted and compiled by researchers who are professionally qualified but independent of the sectors or bodies under review. Professional bodies can also be requested to review and report on their inventory of laws and regulations.

The entire legislative anti-corruption framework should be assessed, including:

•  Criminal laws including the relevant offences; criminal procedure; laws governing the liability of public officials and laws governing the tracing and seizure of the proceeds of corruption;

•  Regulatory or administrative law, including relevant public service standards, practices and regulations, such as the operation of the financial services sector (for example, banking and the public trading of stocks, securities and commodities), the employment of public servants and the making of Government contracts for goods and services;

•  Other areas of law, including legislation governing court procedures and the substantive and procedural rules governing the use of civil litigation as a means of seeking redress for malfeasance or negligence attributable to corruption; and

•  Any area of professional practice governed by established rules, whether enacted by the State or adopted by the profession itself. Critical areas include the legal and accounting professions and subgroups, such as judges and prosecutors; but other self-governing professional or quasi-professional bodies may also be worth examining. It should be noted that the primary purpose of such examination is not necessarily to identify corruption but to assess what measures have been developed against it so that they can be used as the basis of reforms for other professions, or to identify and deal with inconsistencies or gaps.

•  Assessment of institutions and institutional relationships: Most assessments of institutions and institutional relationships will involve consideration of their capacity or potential capacity to fight corruption (Tool #2). They should also be assessed to determine the nature and extent of corruption within each, as well as in the context of the relationships between them. The assessment should include public agencies and institutions as well as relevant elements of civil society, including the media, academe, professional bodies and relevant interest groups. The methods set out under Tool #1 can be used for this purpose.

RISKS OF TOOL #1 : The major risks associated with assessment of the nature of corruption are that data obtained will be inaccurate, or that they will be misinterpreted, leading to the development of inappropriate anti-corruption strategies or to incorrect conclusions about progress against corruption, both of which represent a serious threat.

The methods for gathering, analysing and reporting data and conclusions must therefore be rigorous and transparent. Not only must the assessments be valid, but they must be perceived to be valid by independent experts and by the population as a whole.

The second phase of developing an anti-corruption strategy is the assessment of the institutions involved in the fight against corruption

TOOL#2:

ASSESSING INSTITUTIONS THAT HAVE A ROLE IN FIGHTING CORRUPTION

The second Tool is the assessment of institutions as opposed to the assessment of corruption itself. It therefore entails the assessment of institutions involved in building integrity to curb corruption so as to determine each institution's capacity to participate, at the outset, in the anti-corruption strategy; and the degree of success achieved at each stage.

The nature of corruption may require the assessment at some point of virtually every public institution and elements of civil society and the private sector. Priorities must be set, nonetheless, to conserve resources and maintain a relatively focused national strategy.

In many cases, determining which institutions should be given priority in the assessment process will depend on factors individual to the country involved. Those factors may vary over time, particularly if the strategy is relatively successful. In assessing the roles to be played by various institutions, therefore, it is important to consider their existing or potential roles in the major areas, (social, political, economic, legal and other), in which anticorruption efforts are generally required.

The target group at which institution-building reforms are directed must also be widened to include the media and all parts of society interested in creating and maintaining national integrity. While the focus of donor attention has traditionally been public administration institutions, the new approach requires coordinated elements to address stakeholders extrinsic to those institutions but whose participation and support are nevertheless necessary if effective reforms are to take place.

The key public-sector groups that must usually be included in such strategies are the executive and legislative branches of Government at the national, regional and local levels; the judicial branch and its supporting institutions; key "watchdog" agencies, such as auditors or inspectors; and law enforcement agencies and other elements of criminal justice systems. From the private sector, there should also be inclusion of the media, relevant academic individuals and institutions, and other organizations, such as trade unions, professional associations and general or specific interest groups, who play a vital role in promoting integrity and ensuring transparency and accountability.

Developing a successful anti-corruption structure requires an assessment of the demands made on each of the elements, the strengths and weaknesses of each element, and of how these relate to the strengths and weaknesses of other elements. Attention may then be focused on setting priorities and addressing significant weaknesses. In the 15 countries that have so far embraced the reform efforts of the U.N. Global Programme against Corruption , inadequate rule-of-law elements have been seen as a critical area that has undermined the effectiveness of other reforms. Rule-of-law reforms are also viewed by most as a major priority because the necessary legal and judicial skills and expertise cannot simply be imported. They take time, in most cases 10 to 15 years, to produce.

Once specific institutions have been identified, they should be assessed both individually and in the context of their relationships with other institutions and relevant extrinsic factors. The overall assessment of the potential role of judges, for example, may be affected not only by their degree of professional competence and freedom from corruption but also by the competence and integrity of prosecutors and court personnel. The nature of the legislation that judges have to apply in corruption cases also affect the role they play.

The data-collection methodology for assessing the potential roles of institutions is essentially the same as that used for assessing the extent of corruption (Tool #1), and many of the same caveats apply.

The Third phase in developing a strategy against corruption is taking the necessary measures to build or reform institutions related to the fight against corruption

ASSESSING SPECIALIZED ANTI-CORRUPTION AGENCY

Subsequent to making assessments of the extent of corruption and the capacity of the relevant institutions, the second phase of an anti-corruption strategy entails building or reforming institutions to support the anti-corruption strategy. Indeed, elements of institution-building are found in most, if not all, international treaties, plans of action and specific development projects which deal either with corruption or more general topics such as good governance.

Reforms may include the introduction of elements of accountability into organizations, the de-layering or simplification of operations to reduce errors and opportunities to conceal corruption, as well as more fundamental reforms seeking to change the attitudes and beliefs of those who work in an institution. In some cases, institutions may be restructured for a fresh start, or completely new institutions may be created.

In the past, institution building has focused on the creation or expansion of institutions and the technical skills needed to operate them. In many cases, results have fallen short of expectations because the attitudes and behaviour that supported or condoned corruption were carried forward into the new institutions. Reforms must, therefore, deal not only with institutions but also with the individuals who work in them. There is also a need for results-based leadership that promotes and applies integrity, accountability, transparency, as well as a general acceptance of the mind-set, beliefs and customs that favour integrity over corruption.

The realization that institutions are interrelated and that reforms must often be coordinated has also led to an expansion of the meaning of "institution" and of the list of institutions commonly included in anti-corruption strategies. While much of the focus remains on key elements of public administration, it is now understood that other institutions of government and civil society require attention as well.

TOOL #3:

BUILDING SPECIALIZED ANTI-CORRUPTION AGENCIES

In seeking to build or reform institutions needed in an anti-corruption strategy, the place to start – and therefore the third Tool – is to determine the necessity or otherwise of establishing a separate specialist institution to fight corruption such as an anti-corruption agency (ACA) or whether to modify or adapt existing institutions, or some combination of both. As it is, the United Nations Convention against Corruption requires the establishment of such agencies where they not already exist, particularly preventative anti-corruption bodies (Article 6) and specialized law enforcement bodies (Article 36). Whether this requires two separate bodies is left to the discretion of governments.

From a political standpoint, the establishment of a specialized institution sends a signal that the government takes anti-corruption efforts seriously. A separate agency may, however, generate competing political pressures from groups seeking similar priority for other crime-related initiatives. It may also be vulnerable to marginalization through under-funding or inadequate reporting structures.

It is important to keep in mid that, generally, the dividing up or fragmentation of law enforcement and other functions will reduce efficiency. On the plus side, however, specialization will incorporate an additional safeguard against corruption by placing it in a position to monitor the conventional law-enforcement community and, should the agency itself be corrupted, vice versa. A high degree of specialization also tends to lead to greater expertise, greater public credibility, greater political, legal and public accountability, greater clarity in the assessment of its progress, successes and failures and a high degree of autonomy to insulate the institution from corruption and other undue influences.

The legislative and managerial challenge in this area is to allow just enough redundancy, and even rivalry, to expose corruption if the primary ACA fails to do so. There should not, however, be so much duplication allowed that the flow of intelligence becomes reduced or the investigative and prosecutorial opportunities available to the primary authority are diminished. The disadvantages of ACA must also be kept in mind - greater administrative costs, isolation, barriers and rivalries between the institution and those with which it will need to cooperate and the possible reduction in perceived status of existing structures that are excluded from the new institution

INDEPENDENCE OF SPECIALIZED AGENCIES

A degree of autonomy is necessary where a completely independent agency must be established. This can usually be achieved only by statutory enactment or, in some cases, even constitutional reforms. Fundamental rule-of-law principles such as judicial independence are often constitutional although, in many countries, reforms are likely to be aimed at ensuring satisfactory interpretation and application of existing constitutional rules rather than adopting new ones. While anti-corruption agencies may not be considered as judicial in nature, where corruption is sufficiently serious and pervasive to require the establishment of a specialized institution, something approaching accepted standards for the independence of judicial or prosecutorial functions may be required. They may include:

•  Constitutional, statutory or other entrenched mandates;

•  security of tenure for senior officials;

•  Multi-partisan and public review of key appointments, reports and other affairs of the agency;

•  Security and independence of budgets and adequate resources;

•  Exclusivity or priority of jurisdiction or powers to investigate and prosecute corruption cases and the power, subject only to appropriate judicial review, to determine which cases involve sufficient elements of corruption to invoke this jurisdiction; and,

•  Appropriate immunity against civil litigation.

Substantive elements of specialized anti-corruption agencies could include an investigative and initial prosecutorial function; an educational and awareness-raising function; an analysis, policy-making and legislative function and a preventive function.