THE MECHANICS OF INSTITUTION BUILDING

A number of measures may be applied to establish new structures or to

reform existing ones. As noted previously, it will usually be necessary to bring
about not only formal structural changes but also changes in attitude and
support for reforms on the part of the individuals who make up those
institutions, and in many cases, those who do business with them as well.
Formal structural changes may require legislative changes to statutes or
delegated legislation, and will virtually always require administrative reforms.
In some areas, such as the independence of judicial offices, even reforms to
constitutions or fundamental laws may be required. Legislation may be used
to create, staff and fund new institutions. Existing institutions established by
statute will generally require amendments to implement fairly fundamental
reforms or to abolish them. The administrative rules and procedures under
which an institution operates on a daily basis may be based on delegated
legislation, in which the ultimate legislative power delegates the authority to
make and amend operational rules, within established constraints, to an
individual or body established for that purpose. As the legislature itself need
not participate, this allows a greater degree of expertise and specialization in
rule making, and provides flexibility for making amendments.
Both statutes and delegated legislation are relatively amenable to anticorruption
reforms. It is important for legislatures and political party structures
to be supportive of anti-corruption initiatives in general and educated with
respect to the specific amendments proposed. Given the long-term nature of
such initiatives, multi-partisan support is also important.
Delegated legislative authorities can be appointed to operate under the
oversight of the legislature where more detailed technical knowledge of
corruption is needed. Essentially, the legislature is called upon to decide to
combat corruption, to set general principles, and to enact key provisions, such
as statutes creating anti-corruption authorities or establishing criminal
offences and punishments. Delegated authorities are then called upon, in the
context of each institution, to consider how best to implement reforms in each
institution, to create the necessary rules and, periodically, to review and
amend them.
In many cases, the problem will be to obtain the necessary degree of
understanding, support and commitment for the reforms on the part of those
who work in the institutions and the outsiders with whom they deal. Legislative
anti-corruption reforms must be accompanied by campaigns to train and
educate workers about the nature of corruption, the harm it causes and need
for reform, as well as the mechanics of the reforms being proposed. Since
those who profit from corruption lack positive incentives to change their
behaviour, elements of surveillance and deterrence will also usually be
needed.
It will also be important to ensure that any restructuring is kept as simple and
straightforward as possible. Overly complex structures tend to create further
opportunities for corruption. Complexity also makes new procedures more
difficult to learn and may provoke resistance from officials who see them as an
obstacle to the performance of their duties. Reforming institutional cultures
also requires time as those accustomed to the old values come to understand
and adopt new ones.
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Reform programmes must seek to accomplish change as quickly as possible,
and incorporate as many incentives for change as possible. Nevertheless,
objectives and expectations must be reasonable. The pace of change should
not be forced to the point where it triggers a backlash. Where anti-corruption
reforms are developed in reaction to high-profile corruption, scandals or other
major public events that generate political pressure to act quickly, a moderate
pace of reform may conflict with political agendas.

INSTITUTION BUILDING IN LOCAL AND REGIONAL GOVERNMENTS

In most countries, to be effective against corruption, reforms at different levels

of government must be developed and integrated. Virtually all countries have
separate structures for the administration of central government and local
communities, and those with federal constitutional structures also have
regional, provincial or state governments. Such governments have varying
degrees of autonomy or even sovereignty with respect to the central
government and, in many cases, are based on distinct formal or informal
political structures. They can pose challenges for the development and
implementation of anti-corruption strategies. "Top-down" reforms developed
for central government institutions take longest to reach local governments. In
many cases, however, it is the reform of local government institutions,
delivering basic services, that will make the greatest difference for average
people. Locally, political agendas may be quite different from those at central
government level and may also vary from one community to the next. Such
factors must be taken into account to secure local participation and
cooperation. Adapting and promoting anti-corruption measures will often need
to be done village by village, preferably with the participation of local people
and taking local values into account.
The corruption of judicial institutions frustrates all those mechanisms, allowing
judicial decisions to be based on improper influences and untested assertions.
It also denies litigants basic fairness and the right to equality before the law.
The ultimate result is inconsistent, ad hoc decision-making, a lack of public
credibility and, in systems based on judge-made law, poor legal precedents.
Judicial corruption also greatly reduces the usefulness of judicial institutions in
combating corruption itself. The courts are essential not only to the
prosecution and punishment of corruption offenders, but also to other
accountability structures, such as the civil litigation process (for unsuccessful
contract or job applicants), as well as the judicial review of anti-corruption
measures and agencies themselves. All such elements are rendered
ineffective, or even counter-productive, if the judges themselves or their
supporting institutions are corrupt.
The reform of judicial institutions is rendered more difficult and complex by
many of the very structures that are intended to ensure the independence of
judges from corrupt or other undue influences. Judicial independence and
security of judicial tenure generally make the discharge or discipline of corrupt
judges very difficult, if not impossible. Many countries also extend some
degree of legal immunity to judges to prevent domination or intimidation on
the part of law enforcement officials or prosecutors, and such privileges may
also shield corrupt judges. If a judge is criminally prosecuted, it may be very
difficult to ensure that he or she is tried fairly.
Any strategy for the reform of judicial institutions should be carefully
considered in light of the state of judicial independence in a country and the
specific constitutional, legal and conventional measures used to protect it.
Before anti-corruption reforms are instituted, it may be necessary to ensure
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that basic judicial independence is in place and operating effectively.58 In
many cases, the prime considerations will be the selection, training and
appointment of judges. Judicial candidates should be carefully investigated
and screened to identify any incidents of past corruption; judicial training
before elevation to the bench and for serving judges, should emphasize anticorruption
aspects. Ongoing freedom from any sign of corruption should also
be an essential criterion for promotion to senior judicial positions. Only thus
will it be possible to ensure the integrity of the appeal process and that senior
appellate courts are in a position to pass judgment on corruption cases
involving more junior judges.
The extensive autonomy enjoyed by judges also makes efforts to change their
mind-set or culture a critical element of judicial institution building. Truly
independent judges are virtually immune from most of the anti-corruption
safeguards that the State can develop, leaving only the internalization of anticorruption
attitudes and values as an effective control. Conversely, a well
trained, competent and corruption-free judiciary, once established, makes
possible a high degree of judicial independence. That can be critical to the
promotion of other rule-of-law reforms and to the use of the law as an
instrument for implementing not only anti-corruption measures but reforms in
all areas of public administration. Finally, the high status of judges within
public administration makes them a vital example for other officials. Judges
who cannot be corrupted inspire and compel corruption-free conduct in
society as a whole.

INSTITUTION BUILDING IN LOCAL AND REGIONAL GOVERNMENTS

In most countries, to be effective against corruption, reforms at different levels
of Government must be developed and integrated. Virtually all countries have
separate structures for the administration of central government and local
communities, and those with federal constitutional structures also have
regional, provincial or state governments. Such governments have varying
degrees of autonomy or even sovereignty with respect to the central
government and, in many cases, are based on distinct formal or informal
political structures. They can pose challenges for the development and
implementation of anti-corruption strategies. "Top-down" reforms developed
for central government institutions take longest to reach local governments. In
many cases, however, it is the reform of local government institutions,
delivering basic services, that will make the greatest difference for average
people. Locally, political agendas may be quite different from those at central
government level and may also vary from one community to the next. Such
98
factors must be taken into account to secure local participation and
cooperation. Adapting and promoting anti-corruption measures will often need
to be done village by village, preferably with the participation of local people
and taking local values into account.
Failure to deal with corruption at all levels in a coordinated manner will, at
best, result in reforms that are only partly effective and, at worst, in the
displacement of corrupt activity away from levels where effective controls and
countermeasures are in place. For example, a corrupt company, unable to
bribe legislative officials to produce the legislation it desires, may resort to
bribing local officials to ensure the legislation it opposes is not enforced.
Local government in developing countries is increasingly run by elected
officials. Greater decentralization has also opened up opportunities for citizen
participation in decision-making at the local level. As a result, this "first
generation" of democratic leadership is being required to carry out key
government functions, such as construction and maintenance of basic
infrastructure, delivery of basic services and provision of social services.
Thus, access to additional resources for local governments, compatible with
an increased level of responsibility, do require institutional safeguards to
assure integrity. As that occurs, good governance practices should be
deepened and strengthened through transparent decision-making
mechanisms that are open to citizen participation.

JUDICIAL INSTITUTIONS

The reform or rebuilding of judicial institutions is often identified as a major

priority in anti-corruption strategies. Judicial independence is ia necessary
condition for the effective rule of law and is commonly understood to require
independence from undue influence by non-judicial elements of Government
or the State. In practice, however, true judicial independence requires the
insulation of judicial affairs from all external influences.
The process of interpreting law and resolving disputes before the courts
involves a carefully structured process in which evidence is screened for
reliability and probative value, presented in a forum in which it can be tested
through such means as the cross-examination of witnesses and used in
support of transparent legal arguments from all interested parties. Such a
process ensures basic diligence, quality and consistency in judicial decisionmaking,
and inspires public confidence in the outcomes.
intimidation on the part of law enforcement officials or prosecutors, and such
privileges may also shield corrupt judges. If a judge is criminally prosecuted, it
may be very difficult to ensure that he/she is tried fairly.
Any strategy for the reform of judicial institutions should be carefully
considered in light of the state of judicial independence in a country and the
specific constitutional, legal and conventional measures used to protect it.
Before anti-corruption reforms are instituted, it may be necessary to ensure
that basic judicial independence is in place and operating effectively. In many
cases, the prime considerations will be the selection, training and appointment
of judges. Judicial candidates should be carefully investigated and screened
to identify any incidents of past corruption; judicial training before elevation to
the bench and for serving judges, should emphasize anti-corruption aspects.
Ongoing freedom from any sign of corruption should also be an essential
criterion for promotion to senior judicial positions. Only thus will it be possible
to ensure the integrity of the appeal process and that senior appellate courts
are in a position to pass judgment on corruption cases involving more junior
judges.
The extensive autonomy enjoyed by judges also makes efforts to change their
mind-set or culture a critical element of judicial institution building. Truly
independent judges are virtually immune from most of the anti-corruption
safeguards that the State can develop, leaving only the internalization of anticorruption
attitudes and values as an effective control. Conversely, a well
trained, competent and corruption-free judiciary, once established, makes
possible a high degree of judicial independence. That can be critical to the
promotion of other rule-of-law reforms and to the use of the law as an
instrument for implementing not only anti-corruption measures but reforms in
all areas of public administration. Finally, the high status of judges within
96
public administration makes them a vital example for other officials.