Effectiveness

What makes counter-corruption laws effective? For this book, their effectiveness depends on the extent to which such laws are able to fulfil their intended effects in reality: preventing and combating corruption. The assessment of the effectiveness of the counter-corruption framework is a composite task. It is based, first, on enumerating the state’s legal responses to corruption, including its legal powers and the adequacy of the enforcement institutions. Second, it relies on an evidence-based evaluation of the laws and the performance of the enforcement institutions. These two issues are addressed in the following discussion.

Effective legal framework

The ability of a counter-corruption policy to achieve its objectives relies largely on the extent to which such a policy is implemented by capable law enforcement authorities that are empowered with strong and relevant instruments and powers to pursue the corrupt and deter them from engaging in corruption. These objectives can be effectively achieved by enabling the various state institutions to fight corruption. Curbing corruption through producing adequate laws and their effective enforcement has been described as a ‘lawyer’s approach’ to corruption control. The scope of the discussion in this section is restricted to suggesting a specific framework within which the effectiveness of the law as a social control mechanism can be assessed. Therefore, this section does not investigate in detail whether each individual counter-corruption measure is effective in achieving the intended objectives since that is the objective of chapter 4.

In Kuwait, grand corruption is a problem that requires countervailing efforts that are commensurate with this corruption pattern. These can be embodied in sophisticated legal responses that focus on establishing, or developing, highly capable institutions empowered by a wide range of legal powers. Since 1960, Kuwait has taken repeated action against corruption. In the civil field, to name a few, the action started with the SAB Act, which created the SAB as an independent oversight body to achieve effective control over public finance. The SAB Act also listed financial irregularities against the public budget and established the Disciplinary Tribunal. The CSA enacts the disciplinary offences and establishes a disciplinary system for officeholders. Moreover, the Civil Law Act (Civil Act)

67/1980 sets out the rules of the civil responsibility of both natural and legal persons, according to which liability for corrupt conduct can potentially be established. Next, the Code of Conduct of Public Officials Circular No. 11/2012 (Code 2012) sets out the standards of integrity and behaviours that should be followed by the officeholders. Recently, the Kuwaiti policymaker issued the Strategy 2019-2024, which sets out a comprehensive counter-corruption agenda.[1]

In the criminal field, this action started with the enactment of Criminal Law Act 16/1960 (CLA 1960), which created specific corruption offences, such as the bribery offences: these crimes were later revised in 1970 by the Criminal Law Act 31/1970 (CLA 1970). Next, the enactment of PPFA in 1993 criminalised nine violations against public funds. In 1995, the Court of Ministers was established by the TMA to try corruption crimes committed by ministers. In 2012, the ACAA created a list of corruption crimes and added, for the first time, the IEO. In an important stride, the ACAA has established Nazaha as a countercorruption body to deal with these crimes. The Anti-Money Laundering and Countering Financing ofTerrorism Act (AML/CFT Act) 106/2013 established the KFIU to combat money laundering. In 2018, the CIA deemed conflicts of interest to be a corruption crime.

These multi-dimensional measures empower the enforcement authorities both to prevent corruption and to pursue the corrupt. How these law enforcement authorities operate is outside the scope of this book.20s But whether the statutory powers bestowed upon them are satisfactory will be analysed in detail in subsequent chapters. For the purposes of this study, a number of politicians, professional experts, and social activists were invited to express their perceptions about the effectiveness and adequacy of the existing laws.

MP-2 was satisfied with the current situation, stating that although some counter-corruption laws, such as the IEO, have been belated, the existing laws achieve most of the international requirements. However, that participant argued that the real problem revolves around the ‘administration of the legislation’: how Nazaha and other law enforcement authorities are being administered and how they in turn administer the laws. Despite the presence of adequate laws, the state institutions do not take any action against misconduct. The participant concluded that ‘the legislation is enough for the current problems, but the administration is bad, and this is the reason why we are behind’. MP-3 agreed

that in Kuwait there is a comprehensive system of laws against corruption. MP-3 referred to the same flaw mentioned by MP-2 that there is not a problem with the laws, but with the way in which these laws are enforced. Corruption takes place and the corrupt can go unpunished despite the existence of laws and oversight bodies: ‘'the problem is one that relates to the enforcement’.[2]

Official-2 raised the same issue, but from a different perspective. He/she argued that the effectiveness of the laws is strongly linked to having robust evidence in each corruption case. The evidence issue ultimately relates to how the laws arc enforced in practice. The interviewee believed that the poor enforcement of the laws is driven by the lack of collaboration and liaison between the law enforcement authorities in Kuwait. Official-4 thought that the Kuwaiti laws are sufficient to combat corruption. He/she opined that when talking about the ACAA, at least, the Act not only aims to combat corruption, but also provides for essential pillars that are directed at the prevention of corruption, the engagement of the civil society, and the instillation of a counter-corruption culture in the society. The interviewee commented:

With the enactment of the ACAA, and the establishment of Nazaha, the discourse of counter-corruption and the international commitments of Kuwait towards combating corruption has become predominant. The increasing awareness of the need to combat corruption has become concrete. All these facts justify the claim that the current counter-corruption efforts Ate. effective.

NGO-3 mentioned what he/she called a ‘paradox’: while Kuwait is prolific in enacting counter-corruption laws, these laws suffer from the weakness of their enforcement. He/she argued that ‘the legislature seems to concentrate on the quantity of laws enacted rather than their quality’. Therefore, the rampant corruption cases in Kuwait do not reflect the inadequacy of the laws, but their ineffective enforcement. NGO-2 expressed his/her view in a different manner. He/she commented that the current laws are not effective and gave an example: Nazaha has not been able to send any corrupt people to prison, and although the SAB publishes a report every year about corrupt practices, corruption continues to exist. NGO-2 said that the ‘law enforcement authorities are like the police: you only supervise but cannot hold someone accountable’. What that participant probably wanted to say is that the effectiveness of the laws is not linked to their adequacy, but to their effective enforcement.

The Strategy 2019-2024 underlines the importance of effectiveness, especially the need for effective law enforcement authorities. The ‘Fourth Pillar’ of the Strategy is dedicated to improving the counter-corruption agencies. The Strategy focuses on developing the internal structure and the technical abilities of Nazaha and subjecting counter-corruption agencies employees to further training courses regarding their role in combating corruption. The judicial actors arc part of the Strategy’s agenda to improve the effectiveness of the law enforcement authorities, including training the judiciary regarding matters pertaining to counter-corruption.[3] As discussed in chapter 6, where the author reviews his fieldwork experience, more training courses arc one of the most important responses to the lack of knowledge of professional experts. ‘Cooperation and Liaison’ is one of the Strategy’s priorities to consolidate the abilities of the law enforcement authorities in Kuwait. Under this priority, two critical issues have been mentioned. One is strengthening cooperation and coordination among the law enforcement authorities in the area of the investigation and prosecution of corruption cases. The second is fulfilling the obligations of Kuwait within the Implementation Review Mechanism of UNCAC ‘in a participatory and effective manner’.

What arguably emerges from the previous analysis is that the legal countercorruption framework suffers more from poor enforcement than from any other defect. Since 1960, Kuwait has had in place an arsenal of laws that could effectively combat corruption, and what really matters now is improving the enforcement of those laws. The analysis of the existing counter-corruption measures (especially the criminal ones in chapter 4) will corroborate this conclusion. However, we have to be cautious about these conclusions. The adequacy of the current laws cannot be taken for granted because it has been determined based on a fallacious perception. The prominent public discourse of combating corruption among Kuwaiti experts is that corruption is only encountered criminally. That discourse is a natural result of the dominance of criminal responses against corruption, and the research participants seem to have been vulnerable to this dominant public discourse.

Paraphrasing the argument of the interviewees, the criminal measures against corruption are adequate, and the ‘real’ problem lies in their poor enforcement. But combating corruption is not merely an issue of criminal laws. Non-criminal measures can also have potential in preventing and combating corruption. The analysis in chapter 5, where such non-criminal measures are addressed, will open up new horizons for the potential of civil law in combating corruption in Kuwait. Thus, the argument of this book is twofold. First, one can claim that the criminal counter-corruption laws in Kuwait are adequate (though they suffer from a lack of enforcement). Second, taking into account other non-criminal responses,

the current counter-corruption framework in Kuwait is inadequate and lacks innovation. As will be argued, the criminal nature of Kuwaiti responses to corruption makes them inadequate and unable to deal with ‘■grand’ corruption.[4]

  • [1] See Nazaha (2019). 2 CLA 1970, ss.35-41. 3 PPFA, ss.9-19. 4 ACAA, s.48. 5 AML/CFT Act, s. 16. 6 CIA,s.11. 7 See the book scope in chapter 1.2. 8 See chapters 4 and 5. 9 MP-2. 10 Ibid.
  • [2] MP-3. 2 Official-2. 3 Ibid. 4 Official-4 (emphasis added). 5 NGO-3. 6 NGO-2.
  • [3] Nazaha (2019, p. 26). 2 See chapter 6.3. 3 Nazaha (2019, p. 26).
  • [4] See chapter 5.4.2. 2 Sanderson (2002, p. 4). 3 Head (2008). 4 See . 5 See . 6 UNODC (2004).
 
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