Corruption and constitution
- The drafting of a new constitution provides a valuable opportunity to take a broader view of corruption
Apr 27, 2014-After the first Constituent Assembly (CA) election in 2008, as the country was preparing to draft a new constitution, I had contributed an article expecting to trigger some debate on the drafting of the constitution and its provisions related to the control of corruption (May 21, 2008). Instead of looking at corruption on a piecemeal basis and punishing perpetrators after the event, the process of drafting a new constitution provided, and now again provices, an opportunity to take a broader view of corruption and institutionalise systemic ways to combat it. With an adequate system of checks and balances in place, along with provisions for transparency, integrity and accountability, we can design a constitution that is corruption proof.
The last CA failed to draft a constitution because the political parties could not come to consensus on some crucial issues like federalism, forms of governance and the electoral system. Let us begin with the last one. We introduced a mixed electoral system comprising of majority and proportional representation (PR) systems. But we never questioned the integrity of the electoral systems we adopted. Both systems are prone to corruption but PR is said to be more so than the majority system. Similarly, with regard to forms of governance, it is said that the presidential system is more prone to corruption than the prime ministerial system. Rather than getting down to the details and appraising the pros and cons of each system, we took them for granted. Now, we are stuck with an absurd system where parliamentary seats under the majority system are bought through ‘votes’ and PR through ‘notes’. The only respite here seems to be the fact that the federal structure is less prone to corruption than a unitary state. Still, one should be careful since corruption exhibits both centralising and decentralising tendencies.
Politics was recently heavily bogged down by the transitional justice bill, ie, how and in what way should war-related crimes be dealt with. Should we focus on finding the truth, delivering justice or reconciliation? We may end up with a similar debate over corruption crimes committed in the past. The earlier Lamsal Commission gave amnesty to panchas accused of corruption by only holding to account public officials holding positions post the 1990 multi-party regime. Amnesty for corruption crimes may be sought by public officials post the 2006 Janaandolan or, similar to the transitional justice issue, during the insurgency period.
Instead of taking a broad approach, the drafters of the constitution in the erstwhile CA seem to have concentrated only on the institutional arrangement of the Commission for the Investigation of Abuse of Authority (CIAA) under the federal structure. Even here, they failed to take notice of some critical issues. Let us first take note of some of the recommendations offered by the drafters in a draft document. First, the number of CIAA commissioners, including the Chief Commissioner, has been recommended as three in total. As per the Interim Constitution, there is no such limit on the number but in the past, a maximum of five commissioners, including the Chief, have been appointed. The implicit justification for limiting the number of commissioners, as reported to this scribe by one of the drafters, is that with a federal structure, there will be several anti-corruption
agencies. Here, the drafters failed to properly appraise the central role of the CIAA in a new federal state structure.
It is equally interesting to surmise just how the drafters sought to achieve the goal of ‘proportionate and inclusive’ appointment of CIAA commissioners by limiting the figure at three.
Second, as in the present Interim Constitution, there is a provision guaranteeing the tenure of commissioners. But a change is being sought to include a provision to allow the reappointment of commissioners for one more term, provided the age limit is not violated. Clearly, the drafters have sought to introduce jagire culture into the system. Third and probably the most critical recommendation regards the clipping of the CIAA’s wings. Unlike in the present constitution, the drafters have recommended that the CIAA prosecute corrupt officials only after getting approval from the attorney general. This will relegate the CIAA to an investigative body.
How and in what way will the present CA grapple with this (contentious) issue has yet to be observed. Reading the rhetoric document, the drafters have clearly failed to take into account the obligations arising out of Nepal’s ratification of the UN Convention against Corruption (UNCAC). The drafters have also failed to take notice of the broadening mandate of the CIAA, as is recently being felt, to include corruption in the private sector. In fact, reading the document gives the impression of a student preparing for their Masters thesis.
Recently, Transparency International (TI) compiled valuable country specific information on how to deal with corruption issues in the drafting of a constitution. The international anti-corruption NGO states that “a well-designed constitution can set up solid governance structures that promote
the rule of law, protect fundamental rights and guarantee the separation of powers between the executive, judicial, and legislative branches of government. This includes respecting the right to information, creating an independent judiciary and designing mechanisms to hold the different state branches to account.”
In broad terms, when it comes to dealing with the issue of corruption in the constitution, TI finds six models in operations. These include creating mechanisms to ensure the integrity and accountability of public officials as found in Belize (1981), Colombia (2005) and Serbia (2006). The provisions include asset declaration requirements, codes of conduct and conflict of interest provisions for all public officials, as well as publishing budgets and carrying out independent audits. Second is upholding the integrity of political life and the democratic process. This can be observed in Thailand (2007), Greece (2008) and the Dominican Republic (2010). The democratic process should remain free from undue influence and capture by special interests. Some constitutions have specific provisions on the financing of political parties and electoral campaigns.
Third, upholding the integrity and primacy of public interest as the governing principles of the state as observed in Qatar (2003), Colombia (2005) and Angola (2010). Fourth, creating institutions to monitor and investigate corruption as observed in countries like Thailand (2007), Bhutan (2008), Kenya (2010) and Morocco (2011). More or less, we are pre-occupied with this model and have failed to grasp the role and significance of anti-corruption agencies.
Fifth, making acting with integrity a fundamental duty for all citizens. This is not a common feature but can be found in Bhutan (2008), Bolivia (2009) and Madagascar (2010). And finally, explicitly committing the state to combating corruption. This model can be observed in Nigeria (1999), Sudan (2005) and Ecuador (2008). A database for reviewing constitutions (www.constituteproject.org) is also available online for our own CA members to study.
On a final note, Nepal is one of the few countries in the world where there is an anti-corruption clause in the Comprehensive Peace Agreement (Clause 3.4) and in the Interim Constitution (Article 33). Unfortunately, it is also a country that has failed to translate its words and commitments into actions.
Manandhar is a freelance consultant with an interest in corruption and governance issues.
Published: 28-04-2014 09:11