3. Legal Framework
Applying the Capacity Assessment Methodology to anti-corruption agencies
Enabling environment
The legal framework pertaining to ACAs is of key importance, and ACAs need a clear legal mandate for their work. Some ACAs may only have a preventive mandate, while others have a law enforcement mandate. Still others may have both mandates. Some anti-corruption agencies only have temporary mandates.
ACAs should avoid duplicating parts of their mandate with other institutions. As part of the assessment, a broad range of legislation should be reviewed, pertaining to access to public information, civil service, public procurement and political party financing, among other issues, as it may have direct implications on the ACA being assessed. To strengthen preventive work, ACAs should also have the legal authority to provide directives to government departments to develop and implement new procedures to reduce corruption risks.
ACAs with law enforcement functions will only be able to undertake effective action against corruption offenders if the law criminalizes all corruption offenses. UNCAC Chapter III provides a comprehensive list of corruption offenses that need to be criminalized under the law. Ideally, non-mandatory provisions in the UNCAC, such as illicit enrichment, should also be criminalized under the national law. Money laundering should also be considered an offense. This will allow ACAs to take action against corruption offenders even in the absence of a conviction for a predicate offense. By freezing, seizing and confiscating the proceeds of corruption, the ACA may reduce the incentives for corrupt transactions. The statutes of limitation and immunity from prosecution should also be reviewed under the legal framework, as they may hamper the ACA’s mandate.