Despite marathon meetings of political parties to narrow down differences, determining the basis of federalism and the number of states has remained an uphill task despite the approaching deadline. Once the country is carved into different provinces, the kind of institutional set-up, approach and strategy Nepal will adopt to fight corruption in the new federal setting will decide the success or failure of its overall anti-corruption efforts.
Corruption and the right approach to tackle it has baffled policy makers not just in Nepal but across the world who wonder what would be an effective remedy for it. Comparison of anti-corruption approaches in some Asian countries shows basically two types of corruption control patterns. First, a single agency approach that has been adopted by countries like Bangladesh, Singapore, Malaysia, Hong Kong, South Korea and Thailand. Second, a multi-agency approach as seen in India, China, Philippines, Mongolia, Vietnam and Cambodia.
Of the two approaches, a single-agency model has proven to be the best and most cost-effective. But countries like Nepal must be mindful of the fact that the mere existence of a single anti-corruption body doesn´t automatically guarantee success in combating corruption, if we fail to enforce some minimum preconditions. Strong political will, adequate resources and personnel, favorable laws and extensive investigation outreach are some of the pre-requisites to create a conducive environment for the robust functioning of that single agency.
Faced with the second highest level of corruption in South Asia, Nepal needs to urgently restructure its corruption control structure in tune with the new federal system. Nepal has adopted a single-agency model to deal with corruption through the Commission for the Investigation of Abuse of Authority (CIAA) since 1991. The Constituent Assembly’s committee for determining the structure of constitutional bodies has proposed that Nepal continue with this model even in a federal structure. It has recommended a CIAA with a chief commissioner and two other commissioners with tenures of six years at the federal and provincial levels.
However, replicating a single-agency model without initiating institutional and legal reforms is sure to witness more failures than successes. Our experience shows that a lack of political will essential reforms, wanting investigation modalities and inadequate staff recruitment process have made the CIAA an underperforming body over the years. An analysis of the lapses of our anti-corruption laws and other institutional areas that require pressing reforms is, thus, a must in if we are to empower the CIAA and make it more effective in the new federal Nepal.
There are at least half a dozen institutional and legal loopholes that need immediate correction. Priority must be given to widening the CIAA’s current mandate. It is estimated that corruption in the private sector, non-governmental organizations (NGOs), army, judiciary and political parties constitutes for 60 per cent of the total corruption in Nepal. Given its current powers, the CIAA can only investigate public sector corruption which is roughly 40 percent of the overall figure.
NGOs, private sector and political parties are emerging as the new actors perpetuating and engaging in corruption. Transparency International’s survey has listed political parties as the most corrupt institution in Nepal with the Parliament coming a second close. Unless the CIAA’s powers are expanded to investigate irregularities in these sectors, which have hitherto remained out of its reach, the anti-graft body’s ability to control corruption will remain seriously limited. It is difficult to imagine a new Nepal without stamping out corruption from all these sectors.
The CIAA has lost some of its high profile cases at the Special Court (SC) because of the poor quality of its corruption charge sheets. Recently, the SC gave former inspector general of police Achyut Krishna Kharel got a clean chit on corruption charges because his total property value was less than proceeds from corruption that he had amassed according to CIAA. Similarly, the CIAA had charge-sheeted 36 police personnel including two suppliers in the Sudan scam. But the court convicted only five and gave a clean chit to the rest. This has raised questions about the CIAA’s investigative competence and prosecutorial strength. To ensure high quality prosecutions, there should be a legal provision for pre-testing every prosecution before it is filed at the special court.
The other area of reform includes synchronizing sentencing and enforcement of the court verdict on graft cases. A verdict on a corruption case by the special court should immediately be enforced. Any imprisonment sentence must instantly take effect even if the court’s decision is appealed at the Supreme Court. For instance, Indonesia’s corruption eradication commission has had a 100 percent conviction rate against top officials in all major branches of the government after introducing this reform in 2003.
In our case, the special court’s decision does not get executed if an appeal is filed at the Supreme Court, which has proved to be a dampener for the CIAA as high profile cases have been pending at the apex court for a long time. This has given the accused/convicted enough time to do all they can to influence the judicial processes. Thus, there is a need to revisit this current legal provision.
The existing investigation system must also be reviewed. Currently, the CIAA is more focused on the ‘reactive approach’. It lacks pro-activeness as displayed by the Central Bureau of Investigation in India and anti-corruption agencies of Hong Kong, Malaysia and Singapore. If the fight against corruption is to be made more effective, it needs to augment its proactive investigative capability while tying up with reactive modality.
The institutional set-up, approach and strategy Nepal will adopt to fight corruption in the new federal setting will decide the success of its anti-corruption efforts.
Staff composition and their recruitment process also affect the anti-graft body’s efforts. The current provision of the civil service staff working with the CIAA needs to be scrapped since it has only led to further politicization of the agency. A separate service cadre for the CIAA must be created and staff recruitment should take place through an independent agency. This will ensure professionalism, efficiency and impartiality in the CIAA.
There is also a need to create a strong and vibrant intelligence body trained in corruption investigation, commando training and chasing techniques within the CIAA. It also needs to have a pool of trained informants and whistleblowers for timely tip offs as a part of the proposed proactive anti-corruption approach. Anti-corruption bodies like the CIAA should also be equipped with an internal-control system for surveillance of its own staff to avoid possible manipulation during investigations. Such bodies in Singapore and Hong Kong have a mechanism to keep close tabs on their staff during office and non-office hours.
Existing institutional and legal loopholes should urge us to initiate some urgent reforms. But, blindly replicating the CIAA in the federal structure without introducing substantial and operative reforms will just render it even more toothless and ineffective. Therefore, unless the CIAA’s current structure, staff recruitment process, investigation modalities and legal jurisdiction undergo complete restructuring, the fight against corruption will remain incomplete even in the new federal set-up.
pbhattarai2001@gmail.com
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