Investigating cases of election corruption is not easy. The issues can be highly politicized, involve well-known politicians, and in some cases, be dangerous. Access to witnesses and suspects maybe difficult, documents may disappear, or the investigator can be working in an environment where the culprit may be a high ranking government official.
The type of difficult circumstance will differ according to the Social and Political Context of each country, but these circumstances usually involve political interference, physical safety issues or the lack of a legal and judicial infrastructure.
Political Interference
Investigations of alleged offenses can involve high profile and powerful individuals. Powerful people usually have friends in high places to protect them and run interference. This is unethical and usually illegal, but unfortunately still exists in many places. This is one of the reasons why investigations can run into political interference and why transparency in aspects such as Campaign Financing is such an important integrity mechanism.
Political interference can include:
- threatening to transfer the investigator or prosecutor to another assignment or location;
- threatening to terminate employment of the investigator or prosecutor or stop any future promotions;
- threatening to move the investigation to another agency or bureau;
- threatening to use the government machinery against the investigator, such as the threat of an income tax investigation;
- threatening the cut off of government resources to the investigating or prosecuting agency; and
- telling other agencies and government personnel not to cooperate with the investigation, or to provide any information or records.
These types of cases illustrate the importance of having an independent investigative agency as discussed in Integrity Issues in Oversight. Good Monitoring of Enforcement and as much transparency in the enforcement process as possible can help limit the degree of overt political interference.
Lack of legal infrastructure
Some of the countries undergoing a transition can lack the legal and judicial infrastructure required to support an investigation. There may be holes in the laws, so the investigator or prosecutor cannot find a law that has been broken even though it is evident that a crime has occurred. They may not have the means to conduct an adequate investigation because they lack personnel, resources or institutional experience. They may arrest someone and find the prison system is incapable of keeping that person in custody, or they may find the court docket is so full that the person remains in custody waiting for a trial longer than they would serve punishment for that crime. They may find that the court system is incapable of providing a forum for an impartial trial.
For instance, in the 1998 Cambodian elections,
.. the National Elections Committee's (NEC) efforts to deal effectively with violence and election-law violations were largely a failure. Because the NEC had no law-enforcement or judicial capabilities, cases had to be referred to the government authorities. We had hoped that a few highly visible prosecutions would serve as a deterrent, but these never took place.
In retrospect, we should have realized that a legal system that had never dealt successfully with human-rights cases in the past would not suddenly 'snap to' and salute in response to requests by the NEC. In the future, the NEC might consider a different approach to election violence, such as having its own election police, prosecutors, and even judges seconded to it as a special election-enforcement unit.374
Building a national legal system and infrastructure is a long term process. Election authorities can start by ensuring their election law and related laws (see Legal Framework) provide the basis for free, fair and competitive elections and contain provisions for its enforcement. In some transition countries, where there is no history of an independent judiciary, an electoral commission with wide-ranging powers, of the type that would normally be exercised by legal institutions, may be the only way to counter the lack of a functioning legal system. 375
Culture of impunity
In countries undergoing a transition, or coming out of a history of violent conflict, there may be a culture of impunity. This exists when crimes go un-investigated and persons known to have committed crimes and are not arrested or punished. It could also be a case where those without influence or power are arrested and convicted, but the powerful ones go free. In some nations, those in public office have immunity from prosecution. Transparency International found that 63% of its respondents in its 1999 corruption survey cited the impunity of public officials as one of the major reasons for increasing corruption.376
A culture of impunity breeds corruption and unethical practices because everyone knows a wrong-doing will not be punished. Laws that are not enforced weaken the integrity of the system and the respect for a rule by law. This cycle is extremely hard to break and takes a strong push from civil society and the political will to clean up government and systemic corruption. Arresting a big fish and providing a tough sentence can start to break a culture of impunity. It sends a clear message that unethical and illegal behaviour will not be tolerated and that lawbreakers will be arrested and punished- regardless of their position. Taking this first step, however can be extremely difficult.
Part of the Framework for Preventing and Eliminating Corruption and Ensuring the Impartiality of the Judicial System recommends ensuring that national laws:
- criminalize conventional acts of corruption;
- require disclosing the assets and liabilities of judges and prosecutors and other officers in the judicial system which are then independently monitored;
- providing for disciplinary or other proceedings against judges, in respect of a breach of code of ethics, carried out by the judicial system; and
- providing for disciplinary or other proceedings against court officers consistent with any law relating to their services. 377
According to Robert Klitgaard:
When a culture of impunity exists, the only way to break it is for a number of major corrupt figures to be convicted and punished. Often there are many cases pending which have been set aside for reasons ranging from political sensitivity to corrupted justice officials. These cases should be pushed forward, or the Government should quickly attempt to identify a few big tax evaders, a few big bribe givers and a few high-level government bribe takers. Since a campaign against corruption can too often become a campaign against the opposition, the first big fish that are fried should be from the party in power.378
Physical safety
In a culture of impunity, without a strong judicial system, honest investigators looking into corruption and criminal activities, can become a target for violence or intimidation. In countries with organized crime or drug lords, law enforcement can be a risky business. The protection of investigators requires a political will, but also the support of civil society. Safety mechanisms such as international observers or UN human rights missions, can provide some temporary support, but real change will have to come from within.
