U4 Expert Answer

U4 Expert Answer Tanzania’s anti-corruption agency in an international perspective Query Please provide an assessment of the legal powers and structure of the anti-corruption agency (ACA) in Tanzania (including cooperation with national law enforcement and prosecution agencies) and contrast them with the models encountered in other countries with a similar legal tradition. Purpose Summary There are currently discussions in Tanzania on The decision of whether to equip specialised anti- whether to have the Prevention and Combatting corruption agencies with prosecutorial powers of Corruption Bureau (PCCB) take on the powers requires the consideration of an expansive list of to prosecute serious cases of corruption. At the potential advantages and disadvantages. The moment, the PCCB only has authority to empirical evidence is limited and inconclusive, yet prosecute small-scale bribery, while the strongly suggests considering the appropriate prosecution function sits with the director for designs on a case-by-case basis, taking into public prosecutions. The purpose of this query is account the current state of the ACA, its relations to obtain further evidence and inform our position with and relative efficacy in relation to other towards these discussions. institutions in the broader justice system, as well as the broader political dynamics that shape current Content performance and prospects for reform or co- optation. Whether to expand the remit of 1. The role of anti-corruption agencies in tackling Tanzania’s ACA to include stronger prosecutorial corruption: from high hopes to pragmatism powers will thus require a careful and detailed 2. Designing ACAs to have an impact assessment of a wide range of influencing factors 3. The role and impact of the anti-corruption that are beyond the scope of this answer. The agency in Tanzania limited information base available for this 4. Concluding notes secondary desk research exercise suggests a 5. References number of pros and cons that merit further on-site unpacking and examination. Author(s): Dieter Zinnbauer and Roberto Martinez B. Kukutschka, Transparency International [email protected] Reviewed by: Paul Banoba, Transparency International, [email protected] Date: 10 March 2017 Number: 2017: 5 U4 is a resource centre for development practitioners who wish to effectively address corruption challenges in their work. Expert Answers are produced by the U4 Helpdesk – operated by Transparency International – as quick responses to operational and policy questions from U4 Partner Agency staff. Tanzania’s anti-corruption agency in an international perspective 1. The role of anti-corruption 2. Designing ACAs to have an agencies in tackling corruption: impact from high hopes to pragmatism If ACAs are expected and designed to play a strong, deterrence-oriented guard dog function to Establishing specialised governmental bodies or ensure that corruption is effectively detected and units (anti-corruption agencies – ACAs) to help sanctioned – including ensuring that even the most tackle endemic corruption has been a central tenet powerful cannot act with impunity – then it might of contemporary anti-corruption reforms and seem obvious to equip such an agency with strong advocacy across the world from the very outset of investigative and prosecutorial powers. Doing so these efforts. Inspired by salient successes from would enable it to streamline processes, smoothen New York and Hong Kong to Singapore and New information flows, and focus expertise and work South Wales (Heilbrunn 2004), more than 150 effectively towards high-impact convictions. The countries now have some form of ACA (Messick underlying theory is that an ACA with demonstrable 2015). teeth and a drive for justice would in turn shore up public trust in the fight against corruption and dispel Their importance has been enshrined in various a sense of impunity. These are two factors that are international soft and hard law instruments on anti- considered prerequisites for transformational corruption, from the 2003 United Nations changes in systems of endemic corruption. Convention against Corruption – UNCAC –(articles 6 and 36) and the Jakarta Statement on Principles On closer inspection, however, the empirical for Anti-Corruption Agencies (2012) to the African evidence suggests that maximising the efficacy of Union Convention on Preventing and Combating an ACA in this respect means carefully weighing Corruption (article 20) and the Southern African the pros and cons of such a design option. These Development Community (SADC) Protocol against pros and cons are highly contingent on the specific Corruption (article 4) in the African context internal dynamics and operational architecture of (Wickberg 2013; OECD 2013). the ACA in question, as well as the broader institutional and political context in which it Exuberant early hopes of ACA-induced operates. transformative change have, however, given way to a more pragmatic view. Experts largely concur that ACAs can be a necessary but by no means The fundamental debate about merging sufficient piece of the integrity puzzle. They prosecution and investigation functions appreciate the diversity of forms and functions of ACAs that may or may not prioritise a high rate of At the most fundamental level, the question of convictions for corruption offences. whether to combine investigative and prosecutorial powers is a long-standing and essentially Experts acknowledge the long, uncertain, and unresolved debate in criminal justice. The main protracted road to success that requires donors potential disadvantage centres around the issue of and practitioners alike to adjust their expectations. “confirmation bias”: investigators that have And, most importantly, they point to the expended time and effort in unearthing and overarching importance of considering the political examining a suspicious incident will – even when and institutional context and the specific ways in acting in good faith – tend to give more weight to which ACAs interact with this environment when evidence that aligns with their prior beliefs and devising appropriate designs and selecting feasible evolving presumptions (Messick 2015). This strategies to implement them (Doig et al. 2005 and challenge of keeping an open mind is magnified 2007; Kuris 2015; De Sousa 2010; Chêne 2012). when individual or organisational performance incentives are too tightly built around metrics, such as prosecutions initiated. In contrast, it is hoped that keeping investigations and prosecutions separate inserts an additional check against such www.U4.no U4 EXPERT ANSWER 2 Tanzania’s anti-corruption agency in an international perspective potential biases and may help to weed out wrongful • reduce the risks of diluted accountabilities prosecutions, leading to stronger cases going where the blame for failing to put the corrupt before the courts and ultimately to a higher behind bars and dispelling a corrosive sense of conviction to prosecution ratio. impunity is bounced back and forth between several involved agencies. This pattern does Proponents of fusing these powers point to some not lend itself to focused performance tracking possible mitigation strategies for countering and reforms confirmation bias. These include establishing • avoid inconsistencies and coordination costs proper oversight and monitoring through the when several agencies carry out investigations legislature and creating an independent review and prosecutions on aspects related to the commission, as well as ensuring the public same cases disclosure of granular performance data, which • reduce intra-agency competition, avoid poorly could detect patterns of bias in case selection and designed hand-over processes and eliminate processing (Messick 2015). It should also be noted bottlenecks and delays by the prosecution that we could not find any solid evidence on the authorities that may be less committed to presence or absence of confirmation bias for the tackling corruption or that are too thinly comparator countries included in the response. stretched for expedited follow up and swift There is, however, some empirical evidence for resolution of cases, which are essential to shore confirmation bias from the US, where prosecutors up public trust in the functioning of anti- tend to unwittingly prioritise some cases over corruption mechanisms others, depending on political alignments (Messick • enable ACAs to route around veto players and 2015). politically-motivated stalling tactics by prosecutorial agencies that may have less Practical pros and cons in an imperfect independence or are part of a captured world establishment Even the best-functioning justice systems and the Arguments advanced against equipping ACAs in most independent ACAs can be affected by explicit institutionally weak and highly corrupt settings with and implicit confirmation biases. When fusing prosecutorial powers include concerns that: investigative and prosecutorial functions, a much broader range of pros and cons needs to be • such a concentration of law enforcement considered for ACAs, particularly for those functions will make ACAs a coveted political operating in imperfect institutional settings and in weapon that can be turned opportunistically by what are often highly corrupt environments that can political leaders against their political opponents compromise the ACA’s own remit and functioning. • it will generate rather than eliminate coordination problems and wasteful duplicative On the

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