Anti-corruption assessment of legislation or more simply “corruption proofing” is a review of the form and substance of drafted or enacted legal rules in order to detect and minimize the risk of future corruption that the rules could facilitate. None of the existing international anticorruption conventions or standards addresses this type of corruption risk contained in the legislation itself. It is a rather new discipline, coming into existence in the early 2000’s. Guidance on sound legal drafting, transparent and participatory public decision making and sufficient rules on lobbying, political finance and ethics in legislation are indispensable preconditions for corruption proofing to have a significant impact.
Civil society plays an important role in corruption proofing whether a systematic review mechanism is in place or not, civil society groups ensure independent reviews and hold the Parliaments accountable for taking the anti‐corruption recommendations into account.
Why is it important?
Once becomes an established practice, corruption proofing will make legal drafters and the general public aware concerning what risks may be uncovered and how these risks can be avoided in the very beginning of the drafting process. This benefits to the legislation in preparation, as well to the already enacted laws. Namely, the reviewing process will detect the provisions favouring or legalizing corruption and other abuses upon application. It has also the potential to improve the quality of the legislative drafting and lead to clearer and more consistent wording and to more well-reasoned regulations. As such, it will reduce the ambiguities and loopholes which could open the room for discretionary interpretation, arbitrariness in applying the laws and generating opportunities for future corruption. Corruption proofing further enriches public debate and to this extent, it is important that the state bodies tasked with drafting the law reach out early to the public at large. The level of acceptance of the opinions and the recommendations in relation to the corruption risks diagnosis provided by the specialized anti-corruption bodies and the civil society leading to changes in draft laws, as well in legislation in force, is a prerequisite for a transparent, accountable law-making process that holds up the legislative and executive power at all levels under scrutiny.
How it works?
Anti-corruption review of legislation should be possible for all draft laws, enacted laws, laws at all regulatory levels and from all sectors. The necessary prioritization should be based on detection of the risks in the sectors prone to corruption. Two categories of regulatory corruption risks are mainly reviewed: on the one hand, the ambiguity of language or legal technique, and on the other hand, gaps in prevention, in defining deadlines and procedures, competences of public institutions, sanctioning regime etc. (for example, not providing the deadline for the positions of the acting directors, ambiguous provisions on the conditions for selection and ranking of the candidates etc.). A specialized anti-corruption body should be responsible for corruption proofing, for leading the coordination with other state bodies in order to obtain timely information and to monitor compliance with the recommendations from the review. The legislative bodies should be obliged to take into account the recommendations of the body responsible for CPL and to give feedback as to which recommendations they have included in the law and the reasons for their non-implementation. Representatives of civil society should be given the opportunity to present their written assessments submitted in a standardized form. Data and information should be available online (the methodology, selection of laws, assessment reports (including those of civil society), feedback on compliance, annual summaries of activities and statistics. In order to achieve a significant effect, CPL mechanism requires a solid regulatory framework and interactive, practical training for all state bodies in charge of preparing legislation at all levels. In this regard, the IT supportive tools will enable easy access, continuous monitoring and evaluation of the developed mechanism and holding reliable statistics.
What RAI did?
RAI has dedicated efforts to enhancing the integrity of the public sector institutions through transparent rules and procedures and their capacities for developing and implementing of preventive corruption mechanisms. RAI has early recognized the importance of the CPL as a novel mechanism towards development of a transparent and inclusive legislation process with the participation of the public and civil society. For these reasons, this strategic objective in continuity was a part of the past RAI working documents during the previous years, and is embedded in the new Work Plan 2021-2022. This objective will be realized under the Regional Project SEE-TAC funded by the Austrian Development Cooperation.
RAI and the Regional Cooperation Council (RCC) developed and published the first ever Comparative Study and Methodology for proofing of legislation. This international research shows 13 countries worldwide that have in place a method for reviewing whether their general legislation contained any corruption risks, including an overview on all ten countries from South East Europe, including eight countries that do not have a specific tool for corruption proofing. All these countries have general guidance for law drafting as well as mechanisms for general public consultation on legal drafts. Both mechanisms are suitable for civil society stakeholders to provide comments on draft laws from an anticorruption perspective. The document was produced in Albanian, Bosnian/Croatian/Serbian, Bulgarian, Romanian, and Macedonian
On 13 – 14 November, 2014, the RAI, the RCC, the Ministry of State on Local Issues of Albania and the Southeast Leadership for Development and Integrity (SELDI) co-organized the Regional Conference on Good Governance and Anti-corruption Policy Challenges. The Conference recommended for use the Methodology on Anti-corruption Risk Assessment of Laws, adopted the 10 Ten Principles of Effective Corruption Proofing as an international standard in this field and recommended corruption risk assessment as a corruption preventive tool.
Building upon the findings of the Methodology and responding to a needs expressed by beneficiary institutions in the preceding period, RAI facilitated introduction and strengthening of anti-corruption assessment of laws. This activity resulted in developing, publishing and translating where needed the national methodologies on CPL (“) with regulatory and organisational recommendations and methodologies tailored to national needs (“national methodologies”) trainings in CPL that prepared RAI for further development of the IT tools on the CPL.
Further RAI assistance to the beneficiaries’ jurisdictions in the SEE in relation to strengthening the CPL mechanism was conducted through the joint RAI and UNODC SEE Regional Programme entitled “Building and strengthening the capacity of governments and CSOs from the SEE region to prevent and fight corruption by introducing new tools and mechanisms and by improving their understanding of UNCAC and contribution to its review cycle through training and engagement with multiple stakeholders”. At the time, CPL was a novel tool for most of RAI’s member countries, apart from Moldova, that had substantive experience with CPL, and the Regional Programme helped countries explore this largely untested tool.
During the aforementioned Regional Programme, RAI developed national CPL methodologies for Bosnia and Herzegovina, Kosovo* and Montenegro. At the end of Programme, four jurisdictions were implementing the CPL mechanism (Moldova, Montenegro, North Macedonia and Serbia). Legal opinions on national methodologies were provided for Albania, Moldova and Serbia and trainings were carried out in BiH, Kosovo*, Montenegro and North Macedonia. An IT solution for the digitalization of CPL was developed and rolled out for BiH and Montenegro.
In parallel, RAI and the network of experts working on the CPL have contributed to putting the corruption proofing on the international agenda and contributed to its international promotion among the experts, practitioners, CSOs and international organizations including Council of Europe, OECD, OSCE, EPAC, UNDP, EU DG NEAR and others. The RAI activities and publications in relation to the CPL were promoted at numerous regional and international forums and conferences. For more details on the training and promotion activities please see the RAI Evaluation Reports of the Work Plans 2014-2016
What are the next steps?
The evaluation of the preceding activities on strengthening the CPL mechanisms indicated the existence of the potential for further improvements. Further practice and capacity building on corruption proofing is needed with this young discipline, as is support with further setting up IT-tools for propping up corruption proofing efforts. This aside, impact by corruption proofing should be measured based on a sound methodology.
From the expert’s perspective, remaining challenges are the regulatory basis for the CPL, strengthening the capacities of the law-makers at all levels, of the anti-corruption bodies in charge with the risk review, and of the CSOs for more active participation and pressure on the competent bodies to early publish the draft laws and by-laws concerning the rights of the citizens (such as urban plans), increasing the level of acceptance of the opinions and recommendations resulting from the review, development of a monitoring and evaluation mechanism, publicity of the reports and opinions on draft and already enacted laws and development IT tools based on the absorption capacities of the end users.
Publications and Country Assessment Reports
Corruption Proofing Publication – the Methodology in B/H/S Languages Unofficial Translation
Corruption Proofing Publication – the Methodology in Bulgarian Language Unofficial Translation
Corruption Proofing Publication – the Methodology in Romanian Language Unofficial Translation
Corruption Proofing Publication – the Methodology in Macedonian Language Unofficial Translation
Corruption Proofing Publication – the Methodology in Albanian Language Unofficial Translation
 Regional Programme on Strengthening the Capacity of Anti-corruption Authorities and Civil Society to Combat Corruption and Contribute to the United Nations Convention against Corruption (UNCAC) Review Process, funded by the Austrian Development Agency (ADA)
* This designation is without prejudice to positions on status, and is in line with UNSCR 1244/1999 and the ICJ Opinion on the Kosovo declaration of independence