Review of Experience
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The planning unit can also commission opinion polls, undertake interviews, and request relevant documents and information. Moreover, this unit administers the civil servants’ sworn financial asset disclosure statements. It evaluates and controls their content, and analyzes those cases that may constitute illicit enrichment, conflict of interest, and incompatibilities with the civil servants’ duties. All high- ranking civil servants are required to disclose their financial assets. This also applies to civil servants who occupy positions through which federal funds are administered directly. Last, in the planning area, SIGEN (Sindicatura General de la Nación--the executive branch oversight institution) is in charge of reviewing plans and notifying the ACO if discrepancies have occurred in their execution. The ACO has been very active through a variety of initiatives in providing policy advice, opinions, and cooperation to other government institutions, including the President’s Chief of Staff Office; Congress; Federal prosecutors and courts; several line ministries; Customs; and international organizations and foreign governments. The ACO has also delivered workshops on corruption and accountability to improve the oversight operations of different units of the federal administration and non-governmental organizations. Malaysia The Malaysian Anti-Corruption Agency’s functions are to:
Along with the Anti-Corruption Act 1997, the ACA enforces relevant parts of the Penal Code, the Customs Act 1967, and the Election Offenses Act 1954. What these statutes lack are provisions for corruption-related crimes such as prostitution and gambling -- i.e. syndicated crimes. Also, other forms of white-collar crime such as fraud, tax evasion, stock manipulation, corporate self-dealing, etc. come under the purview of the Commercial Crimes Bureau of the Police Force and not the ACA. Fortunately, the new Anti-Money Laundering Act 2001 and the Mutual Assistance in Criminal Matters Bill 2002 provide important powers for addressing cross-border offences. The Anti-Money Laundering Act 2001 enables the ACA to track ill-gotten assets deposited abroad by those involved in corruption, and thus limits the offender’s opportunities to escape investigation. The Agency’s officers have all the powers of police officers. The ACA also has the power to investigate reports and complaints (and on its own initiative), to examine or interrogate persons, to carry out searches and seizures, and to arrest people. Under the present structure, the ACA conducts the investigations and then refers the case to the Attorney General, who decides whether more evidence is needed and ultimately whether a case should be prosecuted. Thus, the ACA Director General has administrative powers only – the prosecutorial powers of the office (for example, issuing orders for investigations) were removed in 1997. In addition, the Public Prosecutor has the following powers, and can authorize the ACA to exercise them:
The Agency does not have the authority to select cases – it investigates all complaints. It is the Attorney General who ultimately decides whether a case is taken to court or not. Concerning protection of confidentiality, Section 53(1) of the 1997 Act prohibits disclosure of the identity of the person who provides information to an ACA officer, and all other circumstances relating to the information, including the place where it was given – nor can any Court, tribunal or other authority order that such information be disclosed. The Act also provides that once a report has been lodged with the ACA, the writer of the report cannot discuss or divulge any information about the case to anyone else. This confidentiality requirement is critical for facilitating investigations, as well as for the security of witnesses. The immunities of ACA officers are derived from Section 54 of the Anti-Corruption Act: no legal proceedings, civil or criminal, shall be instituted against any officer of the Agency or any other person assisting such officer for any act which is done in good faith or for any omission which is omitted in good faith by such officer or other person. ACA officers also enjoy all the immunities of police officers. There are eight divisions in the ACA, each with its own specific functions: 1. Intelligence Division – detecting and receiving evidence of corrupt practices, through surveillance and intelligence.20 2. Investigation Division – receives, considers, and investigates complaints alleging corrupt practices. 3. Prosecution Division – reviews ACA Investigation Papers and recommends a course of action to the Attorney General regarding prosecution of the cases. 4. Communication and Education Division. 5. Monitoring Division – studies systems and advises departments with a view to remedy weaknesses that could provide opportunities for corruption. 6. Training Division. 7. Management Services Division. 8. Policy Planning and Coordination Division. There are ACA offices in each of the 14 states headed by a State Director, and 9 branch offices in 6 large states.
2. Investigations 3. Research, Control and Statistics 4. Liaison and Community Education. The Management Committee of Directors, chaired by the Director General, (DG) meets regularly to assess the needs and evaluate the performance of the Bureau. During these management committee meetings, directors for the different departments make performance reports to the Director General. Safeguards and Relationships To what extent do these agencies enjoy operational autonomy and supportive relationships with other components of government? None is formally independent, but their operational freedom and the obstacles posed by complementary agencies vary considerably in practice. Argentina The performance of the Argentine Anti-Corruption Office is not guaranteed by stringent formal safeguards. Rather, its factual independence of action and its effectiveness seem to depend more on political dynamics and relationships. Vertical Reporting: The ACO is a special unit of the Ministry of Justice and Human Rights and responds directly to the Ministry and ultimately to the President of Argentina. It has no structural safeguards or guarantees of independence. On paper, this status could severely limit the ACO’s ability to pursue its mandate independently. Its members are political appointees under provisional contracts. However, interviews with several of the ACO’s top managers and political analysts in Buenos Aires point to the fact that, since its creation, its non-partisan staff and its effective work to date have made it possible for the ACO to shield itself from political interference. Indeed, although five presidents have been in charge of Argentina since December 1999, none of them have made any direct effort to obstruct its work. This is due in part to the good reputation established by the ACO as well as its visibility with the media, which would surely generate bad press should the institution face a major assault on its independence. The ACO is supervised by SIGEN, which checks the agency’s compliance with confidentiality rules. Also, individuals can file law suits against the ACO in federal court. Our preliminary investigation shows that the SIGEN so far has had a good relationship with the ACO and did not start any proceedings against it, nor are there lawsuits against the ACO from individuals or other government agencies. The confidentiality of individual data is protected under the stipulations of Law 25.326. The agency is also bound to observe clear rules in its investigations under Decree 467/99. The ACO chair is responsible to the Minister and the President. The chair has the rank of Secretary of State (this is the rank immediately below that of minister) and is appointed and removed by the President upon the advice of the Minister of Justice and Human Rights. All staffers can be removed with little notice since they are appointed under “provisional” contracts. That is, they are not regarded as full time civil servants but rather as political appointees.
The relationship with the President has been much more distant. Shortly after assuming office, President de la Rúa lost interest in the ACO’s role and this is even more so under current President Eduardo Duhalde. Under the de la Rúa administration, the ACO signed with former Chief of Staff Chrystian Colombo an agreement (Decree 103/01) to assist the government in its plans to modernize the state, prevent corruption and coordinate efforts with national and international institutions to this end. The Office of the Chief of Staff pledged to secure the enactment of new norms to help the ACO in this task, and financial support for the purchase of needed computer software to create a new data-base. However, since de la Rúa resigned, the implementation of this program has slowed down considerably. Relations with line ministries were stronger during the de la Rúa administration, but are much weaker now, partly due to the change of personnel at the head of all ministries and partly because the current administration has not made the fight against corruption a priority. By contrast, the relationship with SIGEN, the ACO’s supervising agency, has been cooperative according to senior SIGEN officials. This is in part due to the fact that the ACO, since its inception, has provided SIGEN a lot of documentation that the agency found useful in performing its oversight job. According to SIGEN’s top management, the ACO has been instrumental in SIGEN’s efforts to uncover government waste as well as illicit behavior within the public administration. The ACO seems to have a good, informal, rapport with Argentina’s main NGOs concerned with transparency issues. The same is true for think-tanks and universities. The ACO provides these organizations public information about its activities, and opinions on issues of concern. The ACO also has a very good relationship with some of Argentina’s leading pollsters, including Gallup Argentina and Mora y Araujo & Associates, which provide the agency with current public opinion data regarding corruption and transparency issues. Moreover, the ACO has begun a collaborative effort with important Argentine and foreign companies operating in the country to improve corporate governance standards. As for the media, the relationship seems to be very supportive. The main newspapers (La Nación, Clarín, Pagina 12) have some of their leading reporters covering the ACO activities and checking in on weekly basis. This has helped in giving the ACO visibility in the printed press. Moreover, some of the most important radio stations regularly cover the ACO’s findings on corruption issues. Still, the problems facing the ACO are many. The following are the problems mentioned most often by ACO staffers. First, the lack of independence is a serious issue. Political intrusion has recently become a factor. Peronist congressmen close to both former President Menem and President Duhalde are arguing that the ACO should be disbanded altogether to reduce the government budget, but the real reason behind this seems to be the ACO’s investigations affecting people close to both politicians. Second, the staff are still employed under temporary contracts, hence are subject to sudden dismissal. This could be remedied by a simple administrative initiative, but there is little chance that this can happen in the near future. Third, the budgetary situation remains very uncertain and subject to further cuts, which would hamper the ACO’s ability to fulfill its mandate. Fourth, the ostracism and lack of collaboration by several judges has often frustrated the efforts of ACO staffers. In forty-nine cases, the ACO had to defend its right to appear in the lower courts, despite the federal appeals courts’ recognition (on two occasions) of the ACO’s right to do so. Fifth, the legislation could be improved by facilitating ACO activities, but there is little political will from the executive branch to help in this regard. An example would be creation of protections for whistle-blowers, which would encourage honest civil servants to come forward without fearing retaliation from dishonest managers. Furthermore, despite a lot of debate about it, Argentina still lacks the equivalent of a Freedom of Information Act. Malaysia The Malaysian Anti-Corruption Agency seems to have greater operational freedom in practice than its formal structures admit. Unlike its Argentine counterpart, the ACA lacks a strong constituency outside government – but can rely on effective cooperation with government. Vertical Reporting: The ACA operates as a special unit within the Prime Minister’s Department. There are many other “independent” agencies that come within the Prime Minister’s Department, like the Elections Commission and Attorney General’s office. These agencies, like the ACA, are ostensibly set up within the Prime Minister’s Department for administrative purposes, i.e. budget, recruitment, and building allocations. The ACA reports regularly to Parliament, and it is this accountability – along with the professionalism of the staff and the agency’s support base within and outside government – that provides it a measure of independence. Also supporting this are the ACA’s other lines of accountability. One of these derives from the division of powers between investigation and prosecution. The investigative powers of the ACA are checked by the Attorney General’s power to give orders to obtain further evidence necessary to secure the successful prosecution of a case. Also, the ACA, like other government agencies, must comply with public service codes of ethics, Treasury circulars, and the like. The 1997 Act provides that The Yang di-Pertuan Agong (the King) shall, on the advice of the Prime Minister, appoint a Director-General of the ACA for such period and on such terms and conditions as may be specified in the instrument of appointment. The Director-General’s position is an open post, meaning that she/he can be recruited from any other government agency. The position is usually contracted for a period of two years, subject to renewal. The Director-General is directly responsible to the Prime Minister, who can recommend that a Director General be removed. In the past, only one Director General has been removed from office for misconduct prior to the completion of his contractual term. There is a proposal by the ACA that a two-year term is too short for effective and sustained anti-corruption initiatives, and that a fixed term of four years would provide the Director General with greater security of tenure. Two deputies i.e. Deputy Director General (Operations) and Deputy Director General (Prevention) assist the Director General. One can gain some insight into the politics and perceptions surrounding the ACA – and its independence and accountability – by referring to parliamentary debates on the 1997 bill. For example, Mr. Lim Kit Siang, an opposition leader, spoke about the bill under review.21 One of his main concerns was the limited access given to NGOs and the public to the legislative drafting process, and the need to involve civil society actors in order to increase the credibility of the bill, as well as to promote the goal of “enlisting and fostering public support in combating corruption” (see Section 8(g) of the final Anti-Corruption Act).22 Mr. Lim proposed several amendments to the bill, such as an inclusion of the definition of “corruption” in Section 2, provision for annual public declaration of assets by Members of Parliament, and restoration of the ACA Director General’s powers as Deputy Public Prosecutor. Mr. Lim also suggested the ACA be made accountable only to the Parliament, thus ensuring its “independence, impartiality and professionalism.”23 He opposed Section 20 of the Bill, which imposes a U.S. $26,000 fine, ten years’ jail, or both for any person who makes a false statement on corruption (see section 19 of the 1997 Act). Another proposed amendment was to protect Malaysians’ civil liberties by requiring a Magistrate’s approval for prolonged interception of communications (Section 39 in the 1997 Act) by a Magistrate. To safeguard against abuses of power by the Attorney General, Mr. Lim proposed to set up a Parliamentary Review Committee to review cases submitted by ACA to the Public Prosecutor but never prosecuted. None of these recommendations were adopted. Horizontal Relations: The ACA has effectively drawn on support from other parts of government. One obvious reason is that it is an offense under the Act for public bodies not to cooperate with the ACA. Section 28 of the 1997 Act makes it an offense to obstruct investigations. Also, since the 1997 Act has provisions that take precedence over other legislation, there are in principle no conflicts in applicable laws and regulations. The ACA is not perceived as suffering from overt political intrusion. Not much initiative has been displayed by Members of Parliament in the campaign against corruption, other than rhetorical support and questioning – but other elements of government appear to be strongly supportive. The Director General briefs the Prime Minister on the current level of corruption in the country, and seeks the latter’s advice on issues of policy. The Prime Minister is also briefed on high-profile investigations, and is said to be very supportive of the ACA’s initiatives to fight corruption. Cooperation with closely associated agencies appears to be strong. Approximately 16 Deputy Public Prosecutors are assigned by the Attorney General’s office to work on ACA cases. These Deputy Public Prosecutors scrutinise the Investigation Papers and give orders to facilitate the investigations. These prosecutors are not permanent staff and are transferable. The ACA also uses its own senior officers to prosecute cases, though only in the lower courts. The ACA works closely with the Police in investigations, search, seizure, and arrest. Additionally, the ACA and Police recently established a Joint Committee to Combat Corruption, whereby the Director General of the ACA and the Inspector General of the Police meet regularly to promote cooperation between the two structures. Cooperation with the police helps expedite investigations, disciplinary actions, and the sourcing of information. The ACA uses the services of the Auditor General, consultants, and its own resources to conduct audits for its investigations, should a particular case require one. On the non-governmental side, the ACA works cooperatively with Chambers of Commerce, the Institute of Directors, and Securities Commissions, besides Transparency International (TI)-Malaysia. The Policy Planning and Coordination Division was in charge of press conferences and press releases in 1999 (there were about 15 press releases from the Department in 1999). Due to the confidentiality requirement, information about ongoing investigations and reports lodged with the ACA is not divulged. As for cases that have been or are being prosecuted, the press can obtain reports through the Courts and the Attorney General’s office. The ACA has a Public Relations department that works on press releases. The Agency provides statistical information to the media. To ensure that sensitive information that would affect investigations is not revealed, only the Director General makes statements about cases that are being investigated. The Director of Investigations and State Directors can also give press statements, based on established guidelines and prior approval of the Director General. Tanzania The Tanzanian Prevention of Corruption Bureau comes under the President’s Office, and so supervision and directives on policy flow from the Presidents Office to the agency. There are no formal guarantees in law or administrative practice to safeguard the independence of the Bureau. Nor has the PCB thus far garnered the necessary public support and credibility to act independently. The Director General of the Bureau is appointed by and responsible to the President of the United Republic of Tanzania on all executive matters of the Bureau, and reports to the Chief Secretary in the State House on administrative and finance matters. The Director general has no fixed term, but serves at the will of the President. The President alone has the authority to remove or sanction the DG if she/he does not live up to the expectations of the public. These expectations are addressed through the government’s Annual Report on the State of Corruption. There is also a Control and Evaluation Committee, chaired by the Chief Secretary, that oversees the performance of the Bureau, but its findings are not published. Moreover, neither parliament nor any citizens’ committee has formal oversight authority for the Bureau. As for the PCB’s relationships with other agencies, these in principal are important to its success, but are not highly supportive in actuality, it seems. PCB does not benefit from an express legal duty on the part of other agencies to cooperate and facilitate its work. However, the agency is located at the pinnacle of government, in the President’s Office, and hence should be able draw on the full power and prestige of the chief of state. This is buttressed by the existence in the President’s Office of the Good Governance Coordinating Unit, a body charged with ensuring coordinated government action on the anti-corruption strategy, and with providing policy guidance to the PCB in accordance with that strategy. The Unit aims to sustain the momentum built in the mid-1990s by the Warioba Commission, President Mkapa’s anti-corruption campaign platform, and the development of Tanzania’s first national anti-corruption strategy. These factors, along with PCB’s placement at the apex of government and of anti-corruption strategy, have been enough to extract commitments of support from other relevant actors in government. These include the DPP; the Commission on Leadership Ethics, which reviews asset declarations and enforces the public service code of conduct; the police; the judiciary; and line ministries. Also, PCB’s collaboration with NGOs and the media has been significant. However, this surface picture of accord clearly does not carry through into effective action against corruption (see below). There are a few explanations for this. Most obviously, neither PCB nor its key collaborators has sufficient capacity to rein in corruption. This is clearest in the case of the judiciary, which has a large and long-standing case backlog. This seems to have resisted the efforts of Tanzanians and foreign aid donors in the field of judicial reform. Similarly, the police and the DPP cannot pursue the full range of corruption cases in a timely way. PCB’s institutional linkages to these entities in practice are not strong enough to overcome the capacity constraints. The cooperation of the public has also apparently been slow in coming, due to public antipathy, fear, and lack of awareness of PCB and its mission. Looming above all this is the political equation. President Mkapa did not assume office as the head of the ruling party – that role, in actuality, still belonged to Dr. Nyerere, who continued to command CCM party loyalists until his death, and was known to be unsupportive of reforms that posed a threat to the party’s dominiance. Also, the usual coalition-building plays a role, with the chief of state and the ruling party being beholden to a range of economic and sectional interests. Informed observers would agree that, even assuming the President continued to have the strongest possible interest in combating corruption, his actual power to do so is significantly constrained by political factors. Lacking a strong independent political base, PCB’s power can only be as great as the President’s. Resources How well-resourced are these agencies? The Malaysian ACA is by far the richest. The ACO of Argentina is smaller, but it had equivalent resources on a per-professional basis until recently. The retrenchments and the currency devaluation in response to current economic crisis have taken a severe toll. Tanzania falls in-between in terms of staff numbers, and salaries for its senior most staff are converging with the averages for the Argentine ACO after massive salary cuts and devaluation. Argentina The Argentine ACO, in the short time since its founding, has gone from being a well-resourced agency staffed by highly paid professionals to a more typical Third World ACA suffering from shortfalls in funding, underpaid staff, and diminishing morale. The recent macroeconomic crisis brought about this shift. Personnel: The ACO counts on 30-odd employees. The bulk of the technical staff (about 18) have law degrees and a few have backgrounds in accounting and economics. Aside from the top management, the staff are divided into the following three broad categories: technical (lawyers and accountants), clerical (secretaries), and support (drivers). The last two categories were inherited from the OEP and tend to be a bit overstaffed and underqualified due to the previous patronage system. The technical staff may need to be augmented, since the volume of work has increased over time, and due to budgetary cuts some of its members have been laid off. Moreover, since the beginning of the Argentine economic crisis in December 2001, some staff members have left due to low salaries. The ACO can also hire consultants on short-term contracts for specific tasks. The top managers come with strong credentials. Massoni and Garrido have distinguished credentials in administrative and criminal law. De Michele comes from private practice where he worked in a law firm specializing in anti-corruption activity for almost a decade. He also headed Poder Ciudadano, Argentina’s best-known anti-corruption NGO, and has worked as a consultant for foreign governments and multilateral landing agencies, including the World Bank. Most of the lawyers working for Garrido and de Michele come from government oversight institutions (SIGEN, AGN), the municipality of Buenos Aires, NGOs, or private practice. The technical staff have been recruited, interviewed, and hired by Massoni and his two deputies. These are all administrative appointments. Apart from some employees retained from the OEP, staff have come from other government oversight agencies and the judiciary, with a smaller number from the private sector. The criteria used are a mixture of merit and personal contacts. The technical staff, including Massoni’s deputies, are hired on temporary contracts. Technically the staffers are all political appointees and therefore belong to a different hiring regime than the public service generally. The management style at the ACO is rather informal and ad hoc. Performance evaluation is done by both Garrido and de Michele and reported to Massoni, but there does not exist a clear procedure or written guidelines. There have not been disciplinary actions yet, but given the provisional contract conditions of the entire staff, should major violations occur, immediate dismissal would be easy. There does not seem to be any formal in-house training. Much of it is done informally by the top management while analyzing cases on a day-to-day basis. ACO staff receive the same retirement benefits and health coverage as their colleagues in the same function in the civil service. The compensation is very hard to assess at this juncture due to the economic problems that Argentina is suffering. In March 2001, the Ministry of Justice cut salaries across the board by 70 percent as a means to reduce its expenditures. Since the one-on-one parity between the Argentine peso and the U.S. dollar was abandoned in December 2001, inflation has jumped 26 percent while stipends have remained the same. Due to these conditions, morale across the public administration, including the ACO, is very low. In January 2000, salaries were very competitive. The top management of the ACO could earn as much as U.S. $11,500 monthly. Technical staffers could make U.S. $4,000-$5,000 monthly. Compared to the private sector, prior to the devaluation, these salaries were competitive. Nowadays the top salaries do not exceed U.S. $1,000 per month, depending on the exchange rate. Budget: There are three financing sources for the ACO – but no fiscal autonomy. One comes from the federal budget as part of the Ministry’s allocation, a second one is from taxes charged by the Ministry of Justice and Human Rights on specific services, and the last one is a fund from the World Bank, supervised by the AGN. In the year 2001 the allocated budget according to article 13 of the National budget was U.S. $ 4,592,000 of which $2,545,000 was actually spent. Of the budgeted amount, 72% was dedicated to personnel costs; and of expenditures, 56% were for personnel. Law 23.283 and 23.412 provide additional resources for payments of full time and short-term contract employees. The budget allocated under this rubric was U.S. $1,097,000, of which $975,000 was actually spent. An additional ad hoc source of financing came from the World Bank (DF 027.282) to strengthen the institution. The total amount disbursed was U.S. $201,000, of which $109,000 was spent – IT support and training were the largest items here – and the rest will be used in 2003. Hence the 2001 budget and actual expenditures from all sources were, respectively U.S. $5,890,000 and $3,629,000. Audit control of the use of these funds is exercised by the AGN. The large divergence between budget and expenditure is surely due to Argentina’s austerity measures in response to its deep economic crisis, which included a 70% across-the-board cut in Ministry of Justice salaries. Malaysia By comparison to its sister agencies in Argentina and Tanzania, the Malaysian ACA is well-resourced. On the other hand, the ACA’s personnel and budget are fully subject to civil service rules and ministerial budget decisions. Personnel: Each year the ACA submits a request for human resources to the Public Services Department. In 2001, the number of requested staff was 1,227 officers: 813 for “closed” (permanent) positions and 414 for “open” (seconded) positions. However, only 1,067 positions were actually filled in 2001 (702 closed positions and 365 open positions). The staff in “closed service” positions is nontransferable and, therefore, they are deemed to be permanent. Support staff can be transferred to another department. The ACA only hires consultants and experts occasionally, when the need arises. The difference between the figures for requested and filled positions implies that the ACA is somewhat understaffed for the duties it needs to perform – though not drastically so. The ACA has experienced a human resource shortage throughout its institutional history. However, drawing on the ranks of public servants instead of the police and increasing the ratio of “closed” versus “open” positions, improved the situation. The ACA has also worked on increasing the attractiveness of the Agency’s compensation packages, as compared to the police, the armed services and other government agencies. The appointment of ACA officers is provided for in Section 4 of the Anti-Corruption Act 1997. In practice, there are basically two levels of recruitment: recruitment of support staff and that of the professional and management level. Staff recruitment is done through the Public Services Department. However, ACA personnel themselves fill certain positions, usually at the rank of Sergeant (closed service). The ACA does not recruit members from the police force, although it has received applications from police officers. Support or administrative staff can be recruited on secondment from other government agencies or departments. The problem with seconded personnel is that the ACA feels an obligation to send them back to their home departments, so as to allow them promotion opportunities in the parent organization. One benefit of this process of secondment is that it builds networks within different government organizations. The salary scale for ACA personnel of all ranks is the same as in other government departments or agencies. The ACA, however, offers a special allowance to the staff immediately upon recruitment -- unlike other types of allowances that are only made available after a certain number of months of public service. Recently, the Government has introduced a New Remuneration Scheme with higher allowances for public servants. There is an initial on-the-job training, as well as subsequent courses on prosecution, intelligence gathering, prevention, and management course. Upon recruitment, all personnel are required to undergo a compulsory three months training, conducted by the ACA. Senior officers of the ACA conduct in-house training programmes. Special training programmes for the different ranks are also organised by the Institute for Public Administration. Specialist courses on prosecution, intelligence gathering, prevention, and management are sought in Great Britain and the United States. Prior to joining the ACA, recruits go through a thorough police screening. The ACA staff are also bound by the Public Offices (Conduct and Discipline) Regulation 1993. Promotions are based on seniority, performance, and merit. The heads of divisions make recommendations to the Public Services Department. Performance reviews are conducted on an annual basis. There is a special disciplinary unit within the ACA. A complaint of indiscipline would be investigated by the disciplinary unit and reported to the Disciplinary Board headed by the Director General. Sanctions include warnings, salary and promotion freezes, suspensions, demotions and terminations.
According to the above reports and information furnished to us by ACA, expenditures for the years 1998 through 2001 (actuals for 1998-9, estimates for 2000-1) were:
Of these expenditures, investigation and management services each comprised on average 31% of the total. Intelligence expenditures rose from 2% in 1998 to an average of 10% for 1999-2001. The Agency has no fiscal autonomy and draws all support from the government allocation. The ACA submits its budget proposal to the Treasury, which then tables it in the Parliament. The ACA does not have a separate line in the national budget, as it comes under the Prime Minster’s Department budget. The ACA can ask for an additional budget allocation through a special allocation request. One indication of the adequacy of the agency’s support is its number of computers: 614 in all, for a ratio of staff per computer of just under two to one. Tanzania Personnel: The Prevention of Corruption Bureau has a total of 412 employees (up from 142 in 1995), distributed as follows:
PCB is thought to have insufficient trained staff, although existing technical personnel are mostly university graduates. The PCB has various capacity building programs to enhance knowledge and specialized skills of key personnel. Due to increasing demand and capacity constraints, the PCB intends to recruit more staff. The DG and the four department Directors are appointed by the President. Other professionals fall within the Civil Service, and the relevant employment regulations apply. The posts are advertised in country-wide newspapers, a shortlist is compiled, and then senior officials and an outside expert interview and grade candidates before decisions are made. Those with the highest points are employed on a temporary basis. They become permanent employees after attending a three-month Course organized by the Bureau and passing a final examination. Promotions are considered every two years, and are based on a similar grading system. Employee salaries and other benefits are set in accordance with the Civil Service Regulations. The regular salary scale runs from approximately U.S. $120 to $500 per month. Beyond this, appointments and promotions are by Presidential appointment, and salaries are in accordance with the senior (Administrative Bureau) scale, which goes up to a maximum (for the DG) of U.S. $900 per month, plus living allowances up to U.S. $200. Evidently, these salary scales are far from being competitive with the private sector. Every new employee of the Bureau should attend a three month compulsory Basic Training Course, and pass the exam. There is also a compulsory Intermediate Course, intended to make the officers more competent in their investigation work. Up to now the Bureau has not offered this course and some of the officers have been attending courses outside the country. A Senior Command Course is envisioned as the next step for leaders of the Bureau at regional and district levels, and heads of sections at the headquarters, but this has not yet been offered. Disciplinary measures follow the Civil Service rules. Officers who contravene the ethical code of the Bureau are usually relieved of their posts. For contravention of other regulations applicable to government employees, staff are given three warnings and then may be subject to a range of administrative sanctions such as fines, expulsion, retrenchment, demotions and transfer. Budget: The PCB’s budget is a component of the overall budget for the Office of the President – there is no separate line in the public sector appropriations. As with other components of government, the PCB budget varies with the government’s general fiscal position, and aid funds are used to fill gaps, especially in capital expenditures. The process of compiling the budget also follows that of other government units. The Permanent Secretary, State House collects proposals from all departments and regional offices under the Office of the President, and submits this to the Minister of State, Civil Service to be presented to the parliament’s annual budget session. The approved budgets for the last two fiscal years were as follows:
Approximately 80% of the PCB budget goes toward administrative (recurrent) expenditures, and personnel compensation comprises some two-thirds of this. Performance Monitoring This final section of the case study discussion deals with the ACAs’ performance measurement and monitoring system, along with the actual performance data reported by these agencies. As with most such agencies, available figures mainly focus on output and efficiency. We defer our consideration of the meaning of this data to the next part of the paper. Argentina The Anti-Corruption Office sets its strategic objectives at the beginning of each year, and these provide the benchmark upon which its internal evaluation is performed. The internal review is covered in the agency’s semi-annual and annual reports, which point to the accomplishment of many key objectives. The ACO estimates that its actions have allowed the federal government to save some U.S. $11 million. It has also started judicial proceedings aimed at recovering $113 million in funds that it believes were poorly administered. External evaluation of the ACO is handled by SIGEN. The latter’s reports are confidential, but interviews point to a satisfactory review both in 2000 and 2001. The AGN is responsible for the oversight of donor funds used by the ACO. In the area of financial and asset disclosures, the ACO has achieved almost a 100 percent compliance rate by the civil servants obliged to file disclosure statements. Compliance increased from 67 percent under the OEP (the ACO’s predecessor agency) to 99.9 percent under the ACO. There is also a marked improvement in terms of voluntary filings. One reason for this, as reported by the ACO, is the reduction in the cost per filing from U.S. $70, under the old paper system, to U.S. $8 under the current web-based system (according to ACO estimates). This use of the internet has enhanced the visibility and accessibility of the ACO, when compared to the OEP – prompting a much greater number of queries from both the media and civil society. (ACO statistics) In the field of investigations, the ACO reports an increase in efficiency between 2000 and 2001 in terms of unsolved cases (-9 percent), hence an increase in the proportion of cases solved. Moreover, there was a 14 percent increase in cases under judicial investigation. Since December 1999 the ACO started 1,784 investigations of which 81 percent have been concluded, and a total of 489 have been referred for judicial proceedings (including 317 in 2001). In 31 cases, the ACO has intervened as a plaintiff, and in 43 cases the ACO decided to monitor the proceedings in court. Of these cases, 44 resulted in prosecutions, in 20 cases judges threw out the case for lack of probable cause, and in four instances the case was dropped. Most investigations have concerned high-ranking civil servants. Some of the above cases concerned financial and asset disclosures. The ACO found that 89 filings may have been deceptive, according to Art. 268 of the Criminal Code. Of these, 35 cases are still being investigated and 54 were referred to the judicial authorities. In the area of conflict of interest, the ACO has launched 331 investigations, completing 317. Most of these – 253 – found no illegality, while in 35 cases the ACO made recommendations to the individual involved for avoiding potential conflicts of interest. The remaining cases were resolved either by referral to administrative agencies or courts, or by steps taken by the employee in question. Last, in the area of incompatibility with public office, the ACO opened 58 cases of which 57 percent were solved, 29 percent are still pending, and 14 per cent were sent to other agencies of the public administration. While it is too early for definitive conclusions, the above indicators are suggestive. On the one hand, it is probably safe to say that if one did a random poll of Argentines, most would not know of its existence. Interviews with political analysts, journalists, academics, and foreign diplomats who know these issues quite well, invariably portray the ACO as a very dynamic, well managed, non-partisan, and pro-active institution in the fight against corruption. Most interviewees suggest that for the first time in Argentina there is an agency that seems clearly devoted, against great odds, to bring some transparency and accountability into government. In the very cynical climate that dominates Argentina today, such good standing is quite remarkable. Malaysia The Director General is the key person who monitors the performance of the Anti-Corruption Agency through a reporting system whereby State offices and branches are required to submit monthly, quarterly, and annual reports. The Auditor General conducts selective financial and performance audits on all government agencies. An audit of the ACA would come under the heading of the audit of the Prime Minister’s Department, and the Auditor General would then present its findings to Parliament. (To date, no performance audit has been conducted on the ACA.) Thus the ACA is part of the regular government audit system – but with one exception. There is a Secret Fund under the control of the Director General that is not subject to the usual government audit. An internal process within the Agency audits this Fund and strict procedures are followed before disbursements from this fund can be made. The Public Services Department processes asset disclosure forms, which are required of all public officials – but does not examine them. Ministers declare their assets to the Prime Minister. Persons under investigation have the burden of proof to identify the source of their income. Also, under the provisions of the current Anti-Corruption Act, the ACA has the power to ask for a disclosure in the course of an investigation. The Agency can ask for an explanation, and if the answer is not satisfactory, it has the power to seize assets. However, the procedure for requesting a disclosure is cumbersome, and in effect means that the ACA does not have full authority to investigate cases based on living beyond one’s means. Initiative has been taken by the Agency to rectify this weakness. Also, the ACA has its own process of monitoring the take-home pay of its officers. The ACA documents its performance in published annual reports. The Annual Report 1999 states that a total of 360 prosecutions were conducted throughout the country for the fiscal year, of which 147 (41%) comprised new cases or charges, and 213 (59%) were cases outstanding from the end of 1998. Prosecution of 152 or 42% of cases was completed for 1999. Additional case statistics are summarized in the tables below. |