Transparency and Anti-Corruption


6. A national government’s viewpoint 

General

The Department or Departments responsible for mineral and oil and gas development presumably have a mandate to enhance the responsible development of such mineral resources. Part of that mandate would include encouraging investment in resources in such a way that the host country’s citizens can benefit through employment while protecting the environment and surrounding communities. As we outlined above, high levels of corruption both discourage foreign investment and can rob citizens of benefits  which they might otherwise receive. Consequently, governments should be doing all they can to discourage, prevent and fight corruption both at a macro-level and a micro-level.

At the macro-level in a mature democracy, changes in government often occur when one political party has governed for a long time and the public perception is that sleaze and corruption are becoming rampant. A new government is elected and attempts to clean up the corruption. Often, after a number of years, the process repeats itself.

Some high level policies and legislative solutions to assist in reducing corruption at the political level and in the public service are set out below. Possible departmental actions to fight corruption are discussed separately as a separate chapter.

Access to information

What is it that allows a mature democracy to renew its government when corruption reaches an unacceptable level? There are many factors including strong democratic structures and institutions, but one essential is ‘information’. It has been said that corruption thrives in the dark. If the public does not know what is going on, they will not have an opinion on it, let alone a political position. In order to obtain information, citizens (individually or in organised groups, such as NGO’s or opposition political parties) and the press, need to have access to information. Coupled with freedom of association and freedom of the press to publish what they discover, access to information is what allows democratic institutions to operate in a manner that keeps democratic governments accountable to the public.

If information is power, then increasing the public’s access to information will empower civil society to oversee the state. When done correctly, increased access to information will raise public awareness about: (a) their “consumer rights”, (b) government’s objectives, work programs, budgets and performance indicators; and (c) government’s planning and decision-making process, The objective of awareness raising is to expose government operation and functions to make public servants more accountable.

Access to Information Laws usually adopt four methods to achieve the objective of enforcing transparency in government:

  • Every government agency is required to publish an annual statement of its operations.

  • A legally enforceable right of access to documented information held by the government is recognized, subject only to such exceptions as are reasonably necessary to protect public interests or personal privacy. The subjects generally excluded from scrutiny include cabinet discussions, judicial functions, law enforcement and public safety, intergovernmental relations and internal working documents.

  • A person’s right to apply to amend any record containing information relating to themselves which, in their opinion, is incomplete, incorrect, out of date or misleading, should be recognized and allowed.

  • Independent bodies provide a two-tier system to appeal against any refusal to provide access. 

Government politicians and administrators naturally do not like to be embarrassed and, without legislation requiring them to disclose, they may exercise their discretion in such a way as to give themselves the benefit of the doubt. Consequently, lack of transparency in government can easily become an obstacle to having an informed public. ‘Freedom of Information’ legislation has been found to be an effective way of requiring more transparency in government. Since corruption prefers to work in the dark, such legislation helps reduce corruption by putting the onus on government to justify non-disclosure of information.

Other areas where hosts governments can take legislative action against corruption are as follows:

Public sector reforms

By legislative and administrative means the host government can ensure that systems for recruitment, hiring, retention, promotion and retirement of public servants, are based on principles of efficiency, transparency, and objective criteria, such as merit, equity and aptitude. Such systems should include procedures for the selection and training of individuals for public positions susceptible to corruption and the rotation of such individuals to other positions; promoting adequate remuneration and equitable pay scales, taking into account the economic development of the host country; and promoting education and training programmes to enable trainees to meet the requirements for proper performance of public functions and enhance their awareness of the corruption potential inherent in the performance of their functions.

Elected officials

By prescribing reasonable criteria for candidates for and election to public office, including enhancing transparency in the funding of candidates for public office, the funding of political parties and systems to promote transparency and prevent conflicts of interest.

Public officials

By establishing codes or standards of conduct for the correct, honourable and proper performance of public functions; establishing systems to facilitate the reporting by public officials of acts of corruption to public authorities; and establishing systems requiring public officials to make declarations to appropriate authorities regarding their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials.

Legal system and judiciary

By ensuring that the host country’s legal system is working sufficiently well to discourage corruption. As always the probability of getting caught and punished has a deterring effect on those tempted to break the law. In some countries, the probability of that occurring is very low and corruption is widespread. There are at least five necessary elements that must be present to have an effective legal system.

The laws prohibiting corrupt activity have to be in place. For example, while bribery may be universally illegal, legislation covering conflicts of interest and election campaign financing is not.

There has to be an effective police force to investigate and recommend that charges be laid against corrupt offenders. In less developed countries, even if the police have adequate manpower, they often do not have adequate training or equipment to perform their duties satisfactorily. They also may be grossly underpaid which makes them particularly susceptible to corruption. Once they succumb to corruption, the police quickly lose respect and credibility within their community.

There must be an effective prosecuting arm of the law. It must make tough choices on when to prosecute and when not to prosecute. Again, any hint of corruption will destroy public confidence in the justice system’s ability to ensure that the guilty are punished.

The judiciary system must be seen to act in a fair and impartial manner. Once again, if there is any hint of favouritism in the judges’ decisions or sentences, corruption may be suspected. If the judiciary lose the respect of the population, corruption will flourish.

An example must come from the top. The Attorney General or Minister of Justice, as the case may be, should be a respected person who is recognised as having principles.

If the law enforcement and judiciary are incompetent, ineffective or corrupt in a country, one cannot expect to achieve good governance. Rights like access in information and freedom of the press are only useful if they can be enforced by a legal system free from political influence. Without the rule of law, a citizen, or an investor in the extractive industries, has nothing that he can rely on.

Disclosure of assets and liabilities by public officials

The purpose of mandatory disclosure of assets and liabilities by public officials is to increase accountability and integrity of public servants by ensuring transparency of their income and assets. This serves as a deterrent to illicit enrichment from corrupt practices. Disclosure of assets can also assist in the investigation of corruption allegations and may provide evidence for subsequent prosecution. The obligation to disclose one’s assets can be created either by an integrity pledge signed by all government officials, contained in a code of conduct, or can be required by law. It can be made applicable to only the leadership level of the executive, legislative and judiciary branches, to the entire public service or can be limited to those functions of the public service that are especially prone to corrupt practices. It is essential for the disclosure to be made upon entry into the public service. It should be thereafter be updated on a regular basis. Excessive assets, income, gifts and liabilities are all indicators of irregularities when they are out of proportion to one’s earned salary.

Auditor General

Government monitoring in the form of audits is another element of good governance that can assist in keeping the demand-side of corruption to a minimum. The Auditor General, who performs the role of external auditor to the government, is responsible for audits that are designed to detect and thereby reduce corruption. He should report to the legislature rather than the executive arm of government and be as independent of government as possible. His role is to hold public officials accountable for their stewardship of public funds and assets.

Public officials

By establishing codes or standards of conduct for the correct, honourable and proper performance of public functions; establishing systems to facilitate the reporting by public officials of acts of corruption to public authorities; and establishing systems requiring public officials to make declarations to appropriate authorities regarding their outside activities, employment, investments, assets and substantial gifts  or benefits from which a conflict of interest may result with respect to their functions as public officials.

Legal system and judiciary

By ensuring that the host country’s legal system is working sufficiently well to discourage corruption. As always the probability of getting caught and punished has a deterring effect on those tempted to break the law. In some countries, the probability of that occurring is very low and corruption is widespread. There are at least five necessary elements that must be present to have an effective legal system.

Public Procurement

Public institutions as well as state-owned enterprises need to procure goods, services and works to carry out their responsibilities and duties. Public procurement is one of the government activities most vulnerable to corruption. In addition to the volume of transactions and the financial interests at stake, corruption risks are exacerbated by the complexity of the process, the close interaction between public officials and businesses, and the multitude of stakeholders. ….The direct costs of corruption include the loss of public funds through misallocations or higher expenses and lower quality of goods, services and works… Those paying bribes seek to recover their money by inflating prices, billing for work not performed, failing to meet contract standards, reducing quality of work or using inferior materials, in the case of public procurement of works. This results in exaggerated costs and a decrease in quality. In terms of indirect costs, corruption in public procurement leads to distortion of competition [and] limited market access…

Guidelines for Public Sector Procurement Policies can be found below. Specific rules and procedures for procurement of goods and services should be established by government. Without getting into the specifics, a review of other countries government procurement policies should be made to ensure that the latest advances in regulating procurements can be incorporated into the existing rules.

Management of public finances

The requirement that government must seek parliamentary approval for its budgetary spending is the original source of parliamentary oversight. This requirement foresees government to justify the principles, policies and purposes for which funds are needed. Effective oversight is difficult to exercise because it requires information about government activities. For this reason, there should be a requirement for the disclosure of budget documents prepared by the executive branch of government, and the introduction of annual budgets on a basis that allows adequate time for review and by the legislature and its relevant committees. Also, there should be sufficient funding for research by legislative committees so that they can generate pertinent questions for the executive branch and amendments to improve the budget.

Whistleblower protection

The culture of inertia, secrecy and silence breeds corruption. People are often aware of forms of misconduct but are frightened to report them. This culture persists because it is almost certain that the person who “blows the whistle” would be victimised. Therefore, to overcome this and to promote a culture of transparency and accountability, a clear and simple framework must be established that encourages “whistle-blowing” and protects such “whistleblowers”. Legislation should be put in place to encourage people, in good faith, to report crime and corruption while protecting such ‘whistleblowers’ from victimization, retaliation, dismissal, or being treated unfairly. Such legislation has been put in place in numerous jurisdictions which can be referred to in preparing any proposed legislation.