4. Independence
Applying the Capacity Assessment Methodology to anti-corruption agencies
Enabling environment
An assessment of the legal framework must also look at what an ACA needs in order to perform its functions. Article 6 of the UNCAC states that “each State Party shall grant the [anticorruption] agency or bodies the necessary independence to carry out its or their functions effectively and free from any undue influence." In practice, the issue is a rather complex one, as independence is a highly contextual concept.
A distinction between various forms of independence is useful, and a systematization offered by the International Organization of Supreme Audit Institutions (INTOSAI) applies equally to agencies considered here. INTOSAI distinguishes between three types of independence:
- Organizational independence refers to the least possible degree of government participation in the appointment of the agency’s authorities, implementation of its functions, and its decision-making;
- Functional independence refers to the agency’s ability to can carry out its functions without the undue interference of any third party or the executive;
- Financial independence refers to the impossibility of the government to impede or restrict the agency’s activities by reducing its budget.
The level of each of type of independence needs to be reviewed in line with the specific functions that the ACA performs, as different functions will require different types and levels of independence. For instance, if an agency is mandated to implement preventive anti-corruption policies, its independence is unlikely to be organizational, simply because most implementing agencies form part of the executive and are therefore unlikely to be organizationally independent. However, that same agency should enjoy a level of functional independence so that another government agency cannot unduly interfere with its initiatives. For instance, if an ACA is responsible for implementing the national conflict of interest regime, it should be able to impose sanctions on all non-compliant officials without fearing interference for the executive in this function.
Most of these independence issues will be regulated by the legislation through which the agency is established. In most cases, agencies should be created through a law adopted by a (normal) legislative procedure, rather than by decree or another type of act that can easily be changed or even abolished. In order to guarantee operational independence, the Constitution or the statute should guarantee that the most senior officials in the ACA be appointed and dismissed through clear and transparent procedures and have security of tenure, and that the ACA should have a say in the recruitment process of its lower ranking officials.