Combating Corruption Constitutional Frameworks for the Middle East and North Africa Combating Corruption: Constitutional Frameworks for the Middle East and North Africa Combating Corruption: Constitutional Frameworks for the the Middle East and North Africa Center for Constitutional Transitions, International Institute for Democracy and Electoral Assistance and the United Nations Development Project Project Leads: Sujit Choudhry, Founding Director, Center for Constitutional Transisions, I. Michael Heyman Professor of Law and Dean, University of California, Berkeley Richard Stacey, Director of Research, Center for Constitutional Transitions, Assistant Professor, Faculty of Law, University of Toronto Project Team Members: Christopher Beshara, Casey Downing, Matthew Holbreich, Poonam Singh © Copyright 2014 Center for Constitutional Transitions, International IDEA and the United Nations Development Programme The electronic version of this publication (excluding the cover photos) is available under a Creative Commons License (CCI) – Creative Commons Attribute-Non Commercial- Share Alike 3.0 Licence. International IDEA publications are independent of specific national or political interests. Views expressed in this publication do not necessarily represent the views of International IDEA, its Board or its Council members. ISBN: 978-91-87729-86-7 What is International IDEA? The International Institute for Democracy and Electoral Assistance (International IDEA) is an intergovernmental organization with a mission to support sustainable democracy worldwide. The objectives of the Institute are to support stronger democratic institutions and processes, and more sustainable, effective and legitimate democracy. What does International IDEA do? The Institute’s work is organized at the global, regional and country levels, focusing on the citizen as the driver of change. International IDEA produces comparative knowledge in its key areas of expertise: electoral processes, constitution building, political participation and representation, and democracy and development, as well as on democracy as it relates to gender, diversity, and conflict and security. IDEA brings this knowledge to national and local actors who are working for democratic reform, and facilitates dialogue in support of democratic change. In its work, IDEA aims for: • increased capacity, legitimacy and credibility in democracy; • more inclusive participation and accountable representation; and • more effective and legitimate democracy cooperation Where does International IDEA work? International IDEA works worldwide. Based in Stockholm, Sweden, the Institute has offices in the Africa, Asia and the Pacific, Latin America and the Caribbean, and West Asia and North Africa regions. Combating Corruption: Constitutional Frameworks for the Middle East and North Africa The Center for Constitutional Transitions generates and mobilizes knowledge in support of constitution building. Agenda-Setting Research: Constitutional Transitions generates knowledge by identifying issues of critical importance to the success of constitutional transitions, where a lack of adequate, up-to-date research impedes the effectiveness of technical assistance for constitution building. Constitutional Transitions assembles and leads international networks of experts to complete thematic research projects that offer evidence-based policy options to practitioners. Field support: Constitutional Transitions mobilizes knowledge through an innovative research programme that provides ‘back office’ research support to constitutional advisers in the field, deploying experts and field researchers for support on the ground. Constitutional Transitions meets existing field missions’ needs for comprehensive research, dramatically enhancing their effectiveness and efficiency in their role as policy advisers and actors. Constitutional Transitions’ client for 2012–14 is the West Asia and North Africa Office of International IDEA, which it has supported with over 40 student researchers from 11 countries stationed in the US, Beirut, Cairo and Tunis. For more information, please visit http://www.constitutionaltransitions.org Since 1966, UNDP has been partnering with people at all levels of society to help build nations that can withstand crisis and drive and sustain the kind of growth that improves the quality of life for everyone. On the ground in more than 170 countries and territories, UNDP offers global perspective and local insight to help empower lives and build resilient nations. UNDP’s focus is helping countries build and share solutions to the challenges of: • Poverty Reduction and Achievement of the MDGs • Democratic Governance • Crisis Prevention and Recovery • Environment and Energy for Sustainable Development World leaders have pledged to achieve the Millennium Development Goals, including the overarching goal of cutting poverty in half by 2015. UNDP’s network links and coordinates global and national efforts to reach these Goals through: • Coordinating the UN’s efforts to monitor countries’ rates of MDG achievement; • Providing policy and technical advice to countries as they work to achieve the MDGs; • Working with countries on in-depth country analyses and reports on MDG progress, both negative and positive. UNDP helps developing countries attract and use aid effectively. In all areas of its work, UNDP encourages the protection of human rights, capacity development and the empowerment of women, minorities and the poorest and most vulnerable. Combating Corruption: Constitutional Frameworks for the Middle East and North Africa About this Report The Constitutional Transitions Clinic ‘back office’ has, from 2011 to 2014, prepared a series of thematic, comparative research reports on issues in constitutional design that have arisen in the Middle East and North Africa. Zaid Al-Ali, Senior Adviser on Constitution Building at International IDEA, acted as an adviser on these reports and oversaw International IDEA’s participation in the report-drafting process. The United Nations Development Programme’s Regional Center provided both material and substantive support in relation to the last three of the six reports. The first three of these reports are jointly published by Constitutional Transitions and International IDEA. The second three are jointly published by Constitutional Transitions, International IDEA and the United Nations Development Programme. The reports are intended to be used as an engagement tools in support of constitution- building activities in the region. The full list of reports is: • Constitutional Courts after the Arab Spring: Appointment Mechanisms and Relative Judicial Independence (Spring 2014) • Semi-Presidentialism as Power Sharing: Constitutional reform after the Arab Spring (Spring 2014) • Political Party Finance Regulation: Constitutional reform after the Arab Spring (Spring 2014) • Anti-Corruption: Constitutional Frameworks for the Middle East and North Africa (Fall 2014) • Decentralization in Unitary States: Constitutional Frameworks for the Middle East and North Africa (Fall 2014) • Oil and Natural Gas: Constitutional Frameworks for the Middle East and North Africa (Fall 2014) The reports are available in English and Arabic at www.constitutionaltransitions.org and www.idea.int. For more information, please visit www.constitutionaltransitions.org. 5 Acknowledgements The authors of this report wish to thank Jennifer Canose (NYU School of Law), Ronan Olaoire (United Nations Office on Drugs and Crime), Alia al-Dalli (UNDP), Ahmed Ouerfelli (Office of the President of Tunisia), Geoff Prewitt (UNDP), Claudia Sayago (United Nations Office on Drugs and Crime), Mohamed Chafik Sarsar (Tunisian Electoral Commission) and Candice Welsch (United Nations Office on Drugs and Crime). The views expressed in this report, and any errors it contains, are the responsibility of the authors alone. Many of the ideas that are set out in this report were tested in a conference that took place on 1 April 2014 in Tunis, Tunisia, attended by Tunisian academics, postgraduate law students, members of the Tunisian Constituent Assembly and legal advisers to the Tunisian state. We are grateful for the helpful suggestions offered by the conference participants. This report has been prepared by the Center for Constitutional Transitions, with the assistance of students of the New York University School of Law. The report does not purport to present New York University’s institutional views, if any. All English- language translations of documents referred to in this report are unofficial, unless otherwise noted. 6 Combating Corruption: Constitutional Frameworks for the Middle East and North Africa Contents About this Report.............................................................................................................. 5 Acknowledgements ............................................................................................................6 Preface..................... ........................................................................................................ 10 Executive Summary ........................................................................................................ 12 1 Introduction ..................................................................................................................22 1.1 Understanding corruption: a legal definition.......................................................24 1.1.1 Misuse of public property......................................................................................25