Analysis of the implementation level of the BiH Anti-corruption Strategy 2009-2014
Second periodical report Transparency International BiH
Bosnia and Herzegovina, March 2011.
Authors
Eldan Mujanović (Professor at the Faculty for criminalistic sciences and security studies at the University of Sarajevo. . He is an author of many academic and practical studies in the field of criminalistic. Worked, among others, on the study of the juvenile delinquency, corruption, money laundry, confiscation of illegally gained assets. Field of interest is the international cooperation in fighting crime. He is a longstanding external collaborator of Transparency International BiH)
Darko Datzer (Holds a Master degree from the Faculty of criminalistic sciences criminology and security studies, University of Sarajevo. He is a co-author of the monography „Frankly speaking about police and corruption“, as well as the author of many academic and scientific articles related to prevention of and fight against corruption and theoretical criminal science. Author and participant in many scientific research projects on corruption, crime prevention, juvenile delinquency. Member of the association of criminalists at home and abroad and of the European Association of Criminalists. Member of the editorial board of the magazine Criminalistic themes)
Aleksandar Draganić (Holds a Master degree in Economics, currently employed at the Enterprise Development Agency (EDA) Banja Luka, as a Policy Development Expert Provides expertise and support to local government and public administration reform projects, as well as other project in the area of his competences (youth, social exclusion, economic and socio-economic development). Given the additional education in public policies provided by OSI/LGI and OSF/BiH, he creates public policy documents related to the public administration reform and socio-economic development. Participated in many studies ordered by government and international organizations, as well as in creation of laws and legislation in B&H. He has been a longstanding external collaborator of Transparency International BiH and is actively involved in civil society work and their projects. Author, co-author and editor of several books and publications).
Executive summary
One year following the enactment of the Anti-corruption Strategy (2009 – 2014) and the Law on Anti-corruption Agency1, it can be stated that things are not progressing with desired dynamics envisaged in the relevant strategic documents.
Fighting corruption is not simple, especially taking into account international reports reading that corruption exists at highest levels of authority and politics2, that are at the same time responsible to initiate and realise activities in this area. This paradox is especially ”complicated” in Bosnia and Herzegovina because the issue of corruptive behaviour of high officials and politicians is still often interpreted as an attack against ”ethnic integrity and identity” of an entire ethnic group. Numerous authors dealing with the issue of corruption (Rose-Ackerman, Keefer and Knack)3have found corruption and ethnic division to be coupled. As a matter of fact, ”competition” among different ethnic groups within the same country and fear of ostracism leads to respect for bureaucracy which abuses it for corruptive purposes. Therefore, it is not surprising that the documents including the Anti-corruption Strategy have not been used by the institutions belonging to cantonal and entity level of authority where ethnic division remains dominant.
There are numerous issues concerning the implementation of the Anti-corruption Strategy. Insufficient involvement of all relevant stakeholders in the implementation of the Strategy, lack of planning of necessary resources and improvement of operative aspects of certain components of the Strategy and their realisation are some of those issues. As for the implementation of the Strategy, some activities are implemented but beyond the overall implementation plan. They are implemented rather as ad hoc activities following the pressure exerted either by national or international organisations.
No awareness of the general public of the so far realisation of certain activities concerning the implementation of the Anti-corruption Strategy was not visible in the previous year except for the BiH Council of Ministers, BiH Ministry of Security, some delegates in the BiH Parliamentary Assembly, international organisations and local non-governmental organisations dealing with the issue. There are numerous reasons for this. Firstly, the Anti-corruption Strategy (2009 – 2014) has never been adequately communicated to the entity, cantonal and local level of authority. Therefore, it has never been on the agenda of the FBiH Parliament or RS National Assembly. It has not been discussed at sessions of entity governments or Brcko District Government despite the fact that the Law on Anti-corruption Agency stipulates that entities, cantons and BiHBrcko District shall adopt and develop anti-corruption strategy and the corresponding action plan according to general principles provided in the national Anti-corruption Strategy. Therefore, it is not surprising that other stakeholders – local self-governance units, public enterprises and institutions, universities, civil sector, citizens, media and private sector are not aware of it. The analysis shows the fact that none of the levels of authority except the state level of authority takes the Anti-corruption Strategy 2009 – 2014 as a document committing them to devote to certain activities. At the same time, taking into account little achievement made, commitment of certain state-level institutions to deal with issues from the Anti-corruption Strategy also remains questionable. Failure to communicate the adopted document to all stakeholders is the major reason for the existing situation.
Another concern related to current and future implementation of the Strategy has to do with the ”ownership of the Strategy”. Speaking of strategies, one tends to discuss planning documents of broad consensus relating to all stakeholders that are numerous. Analysing programme documents of political parties participating at general elections in 2010, it has been found that no political party indicated importance of implementation of the existing 2009 – 2014 Anti-corruption Strategy, including its objectives and activities. Instead, they spoke of fighting corruption as of something yet to start. Finally, work of the most responsible ones should be addressed concerning the so far implementation of the Strategy and the Law on Anti-corruption Agency. They are the members of the special commission that was formed ad hoc4 and in charge of establishment of the list of candidates for the position of the director of the Agency. The Law stipulates that the Agency is an independent and self-governing administrative organisation responsible to the Bosnia and Herzegovina Parliamentary Assembly, while the Bosnia and Herzegovina Parliamentary Assembly shall nominate the Director of the Agency following the proposal by the special Commission for selection and monitoring of the functioning of the Agency through the procedure of open competition pursuant to Law on nomination of ministers, Council of Ministers, and other nominations of Bosnia and Herzegovina, following the examination performed when nominating the members of the Bosnia and Herzegovina Council of Ministers. The nomination of the director was the major activity of the special Commission of the BiH Parliamentary Assembly in the previous year. Only at its 5th session, the Commission managed to establish the list of candidates for this position. As the Anti-corruption Agency lacked its formal managerial staff in 2010, that is, the management was done by the acting director whose mandate was renewed on more than one occasion; it is not surprising that no achievement was made in its operation. Actually, as the director shall enact the Rulebook on systematisation of positions and code of conduct of the employees, there is no wonder that the said documents are missing and that many Strategy activities have not been implemented. Taking into account the position of the Anti-corruption Agency, the funds for its operation and Strategy implementation are consequently missing, which hampers the implementation of the foreseen activities. Analysis of the draft 2011 – 2013 BiH framework budget indicates that the BiH Council of Ministers does not plan to allocate funds for implementation of the Anti-corruption Strategy and proper operation of the Anti-corruption Agency. Actually, there is no item of the Anti-corruption Agency in the 2011 – 2013 BiH framework budget. The Strategy can be implemented only if funds are ensured based on which activities could be carried out. Thus, the Action Plan must specify expenditure for group activities as well as the source of funding (budget, international donors, etc.). Unfortunately, neither the Strategy nor the Action Plan specifies expenditures – which additionally slows down further implementation and development of the implementation capacities.
Given the recognized need for establishing institutionalized cooperation with the authorities, as well as efficient mechanisms for the monitoring and evaluation of the implementation of the activities foreseen by the Strategy, which would enable a continuous, active and sustainable involvement of the civil society organisations in the policy development and implementation, Transparency International BiH has initiated the signing of the Memorandum of Understanding with the Ministry of security BiH and the Agency for the prevention and coordination of the fight against corruption. This activity aims at promoting the participation of civil society and non-governmental organisations in the prevention and fight against corruption, as well as strengthening transparency and ensuring efficient mechanisms in accessing information for the successful implementation of the Strategy in the context of the reforms required by BiH in the European integration process.
Within Monitoring of implementation of the 2009 – 2014 Anti-corruption Strategy, Transparency International BiH monitors implementation of the Strategy and the corresponding Action Plan concerning the following areas: capacity building of the Anti-corruption Agency, prevention of corruption, education, training and public awareness, implementation of the law and coordination and implementation of the Strategy.
Analysis of implementation of the Strategy through components
Component 1: Capacity building of the Anti-corruption Agency. A general assessment concerning implementation of measures of this component is that this strategic objective/measure fails to meet time limits foreseen in the Strategy. As majority of activities in this component are related to the Anti-corruption Agency, this should not be taken as surprise as the Agency should become operative only in the second half of 2011. The Agency has not started performing its tasks thus creating gaps in supervision and coordination of the implementation of the Anti-corruption Strategy and its corresponding Action Plan. Taking into account statutory requirements and the Action Plan, it is obvious that major problem lies in lack of commitment to establish capacities in the BiH Parliament, that is, Commission for selection and monitoring of operations of the Agency. The Agency has remained understaffed (director and deputy director have not been nominated). No internal acts of the Agency have been enacted either.
Component 2: Prevention of corruption. The Strategy identifies three major areas through which it is necessary to undertake preventive anti-corruption activities (reform of public sector, transparency and accountability; anti-corruption/integrity plans and simplification of business environment), by undertaking short-term, medium-term and long-term activities. As stated in the previous report, the Anti-corruption Agency has not become operative, which hampers the implementation of the anti-corruption preventive tasks. This institution is actually an initiator and coordinator of almost all preventive activities. Therefore, the lack of its functioning is a serious obstacle for any attempt to fight corruption. Thus, it can be stated that activities foreseen by the Action Plan and undertaken within this component of the Strategy were not carried out or they were partially carried out and they are not the result of the systematic activities of implementation of the Strategy but rather the result of efforts made for the overall public administration reform or individual efforts of the relevant institutions.
Component 3: Education, training and public awareness. Implementation of this Strategy component was supposed to commence in the second half of 2010 according to the time limits provided for in the Action Plan of the Strategy. This component is an important strategic objective within the Strategy itself as it aims at building broad coalition for fighting corruption. Namely, it has been envisaged in the Strategy and its Action Plan from the time of the enactment of the Strategy until the time when this report is written, to develop the curricula, pedagogical material and tools and trainers’ training for the purpose of future providing of training in the field of integrity/fighting corruption/ethics for civil servants. However, it should be noted that for the achievement of objectives, a fully staffed Agency needs to be in place. This is due to insufficient capacity and the secondary legislation governing the functioning of the Anti-corruption Agency. Implementation of activities related to education, training and public awareness requires a lot of resources and attentive approach to relevant ministries with the aim to start implementing activities and to avoid the interference of politics.
Component 4: Implementation of the Law. Analysis of certain strategic objectives or efficiency of implementation of measures from this strategic area has been considerably determined by former findings presented in the interim report published at the end of 2010. The said report contains statements concerning the level of implementation of certain specific programme activities from the domain of implementation of the Law, drawbacks of their implementation and finally recommendations regarding what the responsible institutions should or could do in order to entirely achieve the objectives of this strategic area. Also, the first phase of the monitoring in this strategies area indicated several general tendencies in the so far implementation of certain programme measures. In short, they relate to the fact that the undertaking of envisaged measures largely depends on: (a) general level of awareness of the relevant institutions of their tasks in implementation of the said legal-strategic documents, (b) set priorities of the institutions that mainly include some other objectives different from efficient fight against corruption (it was actually about the meeting of requirements of the so called Road Map for visa liberalisation for BiH citizens), (c) mainly promise-based support to the objectives of the 2009 – 2014 Anti-corruption Strategy, and (d) other factors that prevented more successful achievement of objectives in this area (the fact that the Anti-corruption Agency has not de facto become operative was indicated as a major drawback). Such status in the strategic area of the implementation of the Law affected the level of involvement of the relevant institutions in undertaking certain programme activities, level of implementation of the specific strategic objectives and general impression concerning the relatively low success in achieving strategic objectives in this area.
Component 5: Coordination and implementation of the Strategy. An importantpart of the implementation of the 2009 – 2014 Anti-corruption Strategy concerns the harmonisation of activities of all relevant institutions in the implementation of the set legal-strategic objectives in this area. In light of that it was necessary to ensure appropriate normative, institutional and other preconditions for effective coordination and comprehensive implementation of the strategic activities. So far, partial progress has been made concerning the said preconditions and it mainly relates to normative aspects of coordination of the Strategy and the Action Plan. As a matter of fact, the Law on Anti-corruption Agency stipulates that this authority shall be empowered to coordinate and supervise the implementation of the Anti-corruption Strategy and the corresponding Action Plan and shall have advisory and instructive role regarding the implementation of these documents in practice. Content-wise, coordination should be realised through several, in nature different but compatible measures, consisting of: (a) mediation in policy making for suppression of corruption in all BiH institutions, (b) coordination and supervision of application of the measures, (c) development of the coordination system, (d) cooperation with non-governmental sector, (e) better communication and cooperation between stakeholders, and (f) preconditions for creation of future legal-strategic documents for continuous struggle against this phenomenon. Anyway, a holder of these activities should be the Anti-corruption Agency that should start operating activities within its competence, including the coordination of implementation of the Anti-corruption Strategy.
Component 1: Capacity building of the Anti-corruption Agency.
This is probably the most important component, that is, strategic objective of the Strategy itself. Namely, the strategic document in its programme objective provides 3 of 4 general objectives that directly relate to further sub-objectives and activities that need to be carried out within this component:
1. Establish the efficient system of coordination of activities of authorities in BiH aimed at fighting corruption in order to ensure consistency and sustainable results of the activities carried out within the Strategy
2. Establish the system for prevention of corruption in all structures of public institutions in BiH in order to reduce risk of corruption.
3. Build capacity of bodies in charge of fighting corruption at all levels of government in order to efficiently manage programmes for prevention of corruption, detect and check cases of corruption and instigate appropriate procedures against the offenders.
General assessment of implementation of the activities, that will be later elaborated in detail, is that this strategic objective/component fails to meet time limits foreseen in the Strategy. As most of the activities in this component relate to the Anti-corruption Agency, this outcome should not be taken as a surprise as the Agency is expected to become operative only in the second half of 2011. The Agency has not started performing statutory functions thus creating gap in supervision and coordination of implementation of the Anti-corruption Strategy and its Action Plan. Based on Action Plan and responsibilities provided for in law, major problem evidently lies in the lack of commitment on the part of the BiH Parliament when it comes to establishment of capacities and on the part of the Commission for selection and monitoring of the operations of the Agency.
Commission for selection and monitoring of the operations of the Agency is not efficient in building of the capacity of the Agency
Pursuant to Law, the Commission for selection and monitoring of the functioning of the Agency has nine members: three representatives from the upper chamber of the Bosnia and Herzegovina Parliamentary Assembly, three representatives of the lower chamber of the Bosnia and Herzegovina Parliamentary Assembly, two representatives of the academic community and one representative of the non-governmental sector. The Parliamentary Assembly of Bosnia and Herzegovina shall nominate the Commission with the 4-year mandate. The Commission shall issue the rules of procedure. Three months before the mandate of the nominated members of the Commission expires, the responsible institutions shall open the procedure of nomination of the new members. As the Commission was nominated in the period immediately before the General elections in 2010, their delayed activities are not any surprise as the mandate of some of the members expired automatically after the new upper chamber and lower chamber were established. Taking all this into account, it can be expected that capacity building of the Agency at best may commence in few months following the constituting of the new government.
Within the programme area 1.1.of the 2009 – 2014 Anti-corruption Strategy Action Plan, the following specific measures are foreseen to be undertaken:
1.1. Development and adoption of the legal framework for the operation of the Anti-corruption Agency; for coordination of implementation of the Anti-corruption Strategy, for prevention and education programmes of the Agency.
Time limit for implementation: January 2010 (for adoption of the Law), remaining activities June 2010
Responsible institutions: BiH Council of Ministers,BiH Parliamentary Assembly, Anti-corruption Agency
Analysis of the level of implementation of the specific measure:The BiHParliamentary Assembly lower chamber adopted the Law on Anti-corruption Agency in December 2009 and raised its expectations then. Exactly this activity was foreseen in the Strategy while other activities remained to be mere expectations. Since no functional Agency with managerial staff has been established since the enactment of the Law, it is not any surprise that no applicable rulebooks, systematisation of jobs with job descriptions and programme activities for coordination of implementation of the Strategy and Action Plan have been enacted to regulate the operations of the Agency. In the concerned period, there have been certain activities of the BiH Ministry of Security in this area. However, no specific results were achieved. In the 2010 BiH Progress Report, European Commission indicates that the draft rulebook of the Anti-corruption Agency is in place, that space for the Agency premises has been ensured within the SIPA premises in Lukavica and that the Agency is still understaffed.
Analyses indicate that major problem is the lack of commitment on the part of the BiH Parliament to build capacity. Namely, the procedure for selection of managerial staff has been dragging since April 2010, that is, since the time when the acting director of the Agency was to be nominated. At its 75th session in April 2010, the BiH Parliamentary Assembly provided its response concerning the conclusion that stipulates that “the upper chamber is obliged to nominate at the next session the acting Director of the Anti-corruption Agency, who is to perform the function until the director has been nominated.“ The nomination of the acting director of the Anti-corruption Agency (following the conclusion of the upper chamber at its 75th session held on 7 April 2010) was continued at the next session of the BiH Parliamentary Assembly when the BiH Deputy Minister of Security, MijoKrešić assumed the responsibility of the acting director of the Anti-corruption Agency pursuant to Law on Anti-corruption Agency (BiH Official Gazette, No. 103/09) not later than 1 August 2010.
At the 82nd session, the conclusion of the upper chamber from the 76th session held on 21April 2010 was amended following the incumbency of the Security Deputy Minister, Mijo Krešić as the director of the Anti-corruption Agency. Thereupon, the time limit of 1 August 2010 was deleted, which ensured the opportunity to act in an irresponsive manner and cause delay in the selection of the director of the Agency and establishment of its normal functioning.
Only on 28 December 2010, at the fifth session of the Commission for selection and monitoring of operations of the Anti-corruption Agency, a list of 13 candidates5 for the position of the Agency director and deputy director was established. The most successful candidate is Ramiz Huremagić with 692 points, followed by Damir Vejo with 585 points, Sead Lisak with 573 points, Milan Krulj with 565 points, Blanka Benković with 560 points. Following the procedure of ethnic quotas, the functions of the director and deputy director should be performed by the following three candidates: Ramiz Huremagić as a Bosniak, Milan Krulj as a Serb, and Blanka Benković as a Croat6.
Since the Agency managerial staff has not been nominated, it is not any surprise that implementing regulations concerning the operations of the Agency, its role in prevention and coordination of fight against corruption and awareness raising programmes have not been enacted. The cause for delay is insufficient readiness of the stakeholders, in part, due to General elections activities that took place in October 2010.
Recommendations: As for this specific measure, the most urgent action is the nomination of the managerial staff of the Anti-corruption Agency in order to start performing functions envisaged by law and in accordance with the Anti-corruption Strategy. It should be propped by the soon enactment of all implementing regulations concerning the operations of the Agency and its coordination and prevention related role in fighting corruption. The BiH Council of Ministers should ensure adequate working conditions, including the necessary resources and staff, which is a potential obstacle for the operation of the Agency. Actually, the analysis of the 2011 – 2013 draft framework budget and operation of the BiH Civil Service Agency indicates that no tangible resources or staff has been envisaged by 2010 in order for the Anti-corruption Agency to adequately perform its tasks.
Within the programme area 1.2.of the 2009 – 2014 Anti-corruption Strategy Action Plan, the following specific measures are foreseen to be undertaken:
1.2. Ensuring material conditions for the operation of the Agency, including but not restricting to the following: office, budget allocated.
Time limit for implementation: December 2010
Responsible institutions: BiH Council of Ministers
Analysis of the level of implementation of the specific measure: Although the Agency has been formally situated on the premises of the State Investigation and Protection Agency (SIPA) in the territory of the Istočno Novo Sarajevo municipality, working conditions remain unsatisfactory. A major concern is the sustainability of this solution. Namely, as the rulebook on systematisation of jobs and job descriptions is not in place, it does not make any sense to analyse the adequateness of the existing office for the purpose of the Agency. Also, the Anti-corruption Agency is an independent administrative organisation that is now largely dependent on the BiH Ministry of Security and State Investigation and Protection Agency (SIPA). Also, the Law stipulates that the Anti-corruption Agency shall be focused on responsibility rather towards legislative authority and not executive authority, which is not the case. The fact confirming that is the lack of budget allocated for the Agency. The analysis of the 2011 – 2013 framework budget indicates that the BiH Council of Ministers did not plan any resources for the operation of this Agency. In addition, there is not a single reference to the Anti-corruption Agency in the decision of the BiH Council of Ministers No. 316/10 on provisional financing of the institutions of Bosnia and Herzegovina and international obligations of Bosnia and Herzegovina for the period from January to March 2011. At the same time, on the basis of the Decision on takeover of tasks, objects, resources and employees between the BiH Ministry of Security, State Investigation and Protection Agency and BiH Agency for coordination of police bodies (BiH Official Gazette, No. 94/10), 6,300,000.000 KM was allocated for provisional financing of the BiH Agency for coordination of police bodies in the period from January to March 2011. Despite the fact that the BiH Agency for coordination of police bodies came into existence at the same time like the Anti-corruption Agency, executive authority in this case demonstrated seriousness when it comes to its establishment.
The lack of allocated budget of the Agency and its permanent office space definitely affects future staff related solutions. By browsing vacancies7 announced on the web-site of the Civil Service Agency in 2010, no vacancy can be found for the Anti-corruption Agency. This is an obvious concern and it cannot be expected that the Agency would become operative in its full capacity by mid next year as the Agency acting director MijoKrešić said.8
Recommendations: The BiH Council of Ministers should get more involved in order to realise this specific measure. There should be budget allocated for the Anti-corruption Agency in the strategic documents. That means that the institution must include the Agency in the list of budget beneficiaries with the allocation of funds and budget projection for the next three years. At the same time, it is necessary for the Agency to regulate its operations by the by-laws and to enact rules of procedure, systematisation of jobs and job descriptions and programme activities. This specific measure is directly related to building of full capacity of the Anti-corruption Agency.
Within the programme area 1.3.of the 2009 – 2014 Anti-corruption Strategy Action Plan, the following specific measures are foreseen to be undertaken:
1.3. Recruitment of the Agency staff to ensure efficient operations
Time limit for implementation: June 2010
Responsible institutions:BiH Council of Ministers, BiH Parliamentary Assembly, Anti-corruption Agency
Analysis of the level of implementation of the specific measure: It was impossible to conclude by the analysis of the relevant reports and sources whether the Anti-corruption Agency has carried out envisaged activities. Namely, the nomination of the director and deputy director and the recruitment of officers and technical staff, which was not performed, are suggested as key indicators for the implementation of this measure. Like in the case of the previous measure, a basis for the implementation of this measure is the Anti-corruption Agency, that is, its managers who have not been nominated yet.9 The Agency has the acting director. However, it remains unclear who manages the Agency as the acting director became the delegate in the government of Tuzla Canton following the local elections in 2010.
Recommendations: Like in the case of material working conditions, recruitment of necessary staff of the Agency for the purpose of efficient operations requires the nomination of the director, enactment of the rules of procedure, rulebook on systematisation of jobs and job descriptions. At the same time, it is necessary to institutionalise the allocated budget of the Agency and announce vacancies for officers and technical staff. As the nomination of the Agency director is not expected to happen before February 2011, it is difficult to say when this measure will be implemented. That means that a one-year delay of the implementation is expected.
Within the programme area 1.4.of the 2009 – 2014 Anti-corruption Strategy Action Plan, the following specific measures are foreseen to be undertaken:
1.4. Establish efficient training programmes in order to improve Agency staff’s skill so they perform their tasks in efficient and professional manner.
Time limit for implementation: December 2010
Responsible institutions: Anti-corruption Agency
Analysis of the level of implementation of the specific measure: By analysis of the 2009 – 2014 Anti-corruption Strategy in the period by the end of 2010, it can be concluded that this specific measure was not implemented within the envisaged time limit. Since the managerial staff was not nominated in the Anti-corruption Agency and officers and technical staff were not recruited, it by no means made sense to plan and develop training programmes. Namely, only after the Agency has become fully staffed and their general and specific knowledge and skills screened, it will be possible to develop certain training programmes.
Recommendations: After the Agency becomes established and fully staffed (managerial staff, officers and technical staff), training programmes should be developed in order to improve staff's skills for efficient and professional performing of tasks. Therefore, it is necessary to screen knowledge and skills of the employees, assess their interests, set organisational objectives and define programme areas. Since it was donations that were mainly used for activities related to fighting corruption, this source should also be taken into consideration when it comes to training needs. Also, there already exists training regularly provided by civil service agencies. Actually, in 2008 the RS Civil Service Agency organised training for 33 officers concerning the deontological principles and anti-corruption policies. Also, as many as 348 persons in the FBiH received training concerning these issues organised by the FBiH Civil Service Agency.
Within the programme area 1.5.of the 2009 – 2014 Anti-corruption Strategy Action Plan, the following specific measures are foreseen to be undertaken:
1.5. Adopt the code of conduct of the Agency and the code of conduct of the Agency staff
Time limit for implementation: December 2010
Responsible institutions: Anti-corruption Agency
Analysis of the level of implementation of the specific measure: Like in the case of the previous measure,this measure has not been implemented by the envisaged time limit due to failure to establish the functional Anti-corruption Agency. As a mater of fact, adoption of the code of conduct of civil servants in the state-level institutions is a major recommendation of the Council of Europe consultative body related to the Group of states against corruption (GRECO) from 2009. In its recommendation10, GRECO indicates that the code of conduct must include explicit definitions of ethical behaviour and risk of corruptive behaviour and emphasizes training at all levels of government and practical issues including the receiving of gifts, conflict of interests, etc.
Recommendations: Following the recruitment of the necessary staff (managerial staff, officers and technical staff), it is necessary to adopt the code of conduct of the Agency and to define standards of behaviour of the Agency staff. This code of conduct should definitely be adjusted to the latest amendments of the Law on Civil Service in the BiH institutions11, and the envisaged state-level code of conduct. As indicated in the GRECO recommendations, the code of conduct must include explicit definitions of ethical behaviour and risk of corruptive behaviour, with emphasis on training at all levels of government and practical issues including the receiving of gifts, conflict of interests, etc. As the staffing of the Agency is slow, the time limit for the implementation of this measure should be prolonged by at least 6 months. Also, it is important that the secondary legislation of the Agency be in compliance with the code of conduct that is based on amendments to the Law on Civil Service in the BiH institutions.
Within the programme area 1.6.of the 2009 – 2014 Anti-corruption Strategy Action Plan, the following specific measures are foreseen to be undertaken:
1.6. Develop and adopt all relevant guidelines, standard rules of procedures and instructions for the Agency staff.
Time limit for implementation: December 2010
Responsible institutions: Anti-corruption Agency
Analysis of the level of implementation of the specific measure: Like in the case of the previous measures, inadequate functioning of the Anti-corruption Agency caused delay of the implementation of this specific measure. Taking into account the indications of the implementation (development and upload on the Agency web-page of certain relevant guidelines, standard procedures and instructions for staff), this can be confirmed with certainty. Taking into account the purpose and activities of the Agency, some of the key guidelines and procedures will relate to communication and relations with citizens, business sector and civil society with respect to the application of the Law on Freedom of Access to information and coordination of activities of the Agency with other bodies of public and state administration.
Recommendations: Following the establishment of the full capacity of the Agency and enactment of the rulebook on systematisation of jobs and job descriptions, it is necessary to enact internal guidelines, rules of procedure and instructions for staff as soon as possible. This is extremely important because building of an organisational culture within an institution takes years, and the lack of it causes non-professional and unethical behaviour in the institution. Therefore, it is crucial to enact internal implementing regulations following the recruitment of staff in order to facilitate performance of staff. Taking into account the purpose and activities of the Agency, it is necessary to enact guidelines and procedures respecting good governance principles, user oriented principles, transparency, accountability, openness for cooperation and publicity in work.
Within the programme area 1.7.of the 2009 – 2014 Anti-corruption Strategy Action Plan, the following specific measures are foreseen to be undertaken:
1.7. Reinforcement of the training process within the Agency with the purpose of ensuring a strong organisational culture based on the code of conduct
Time limit for implementation: December 2011
Responsible institutions: Anti-corruption Agency
Analysis of the level of implementation of the specific measure: This measure directly refers to the measures under 1.4. and 1.5. (training programme and code of conduct). Taking into account the status of the measures under 1.4.and 1.5., the implementation of this measure depends on conditions related to organisation, material and human resources.
Recommendations: Since the time limit for the implementation of this specific measure is open, it depends on the aforementioned steps and measures. Taking into account the purpose of these activities, it would be crucial for the Anti-corruption Agency to establish cooperation with the relevant institutions in the Region (e.g. Serbian Anti-corruption Agency or Croatian Anti-corruption Office) or in the EU, in order to exchange experience and practice related to the said measure and necessary activities. In additional to funds ensured within the national budget, IPA funding may be relied upon for these activities.
Within the programme area 1.8.of the 2009 – 2014 Anti-corruption Strategy Action Plan, the following specific measures are foreseen to be undertaken:
1.8. Assessment and monitoring of the implementation of the Strategy; Recommendation of the necessary amendments in consultation with all stakeholders
Time limit for implementation: December 2011
Responsible institutions: Anti-corruption Agency
Analysis of the level of implementation of the specific measure: This measure also depends on the dynamics of capacity building within the Agency and on implementation of other activities related to specific measures. Taking into account the period of two years from the beginning of the implementation of the Strategy, this measure is planned in accordance with the rules on strategic planning. However, taking into account the so far dynamics of implementation of the activities and measures from the Action Plan, there emerges the issue of purposefulness of these activities, especially from the aspect of operations of the Anti-corruption Agency.
Recommendations: Taking into account that activities from the present report may serve as an initial input for the assessment and monitoring of implementation of the Strategy, it can be concluded that the implementation of the Strategy has been quite delayed. It should be noted that with this dynamics few activities from the original strategy will be implemented and it is recommended that the envisaged time limit (December 2011) for proposal of necessary amendments with consultations with all stakeholders should be postponed by at least six months. Namely, the consultation process itself concerning the Strategy is not a simple task. Therefore, it is necessary to identify key stakeholders (formally and in practice), determine their role and interest in further implementation and create potential alternatives for the elimination of possible resistance. Broad consultation process with the stakeholders in the implementation of the Strategy should take several months. It should not be a mere delivery of the report and plan for approval or comment. The Agency's role here is crucial as well as that of the BiH council of Ministers, BiH Parliamentary Assembly and entity and cantonal governments and parliaments.
Within the programme area 1.9.of the 2009 – 2014 Anti-corruption Strategy Action Plan, the following specific measures are foreseen to be undertaken:
1.9. Development and implementation of anti-corruption action plans across various fields
Time limit for implementation: June 2011
Responsible institutions: Relevant authorities at state and entity level of government and BiHBrcko District
Analysis of the level of implementation of the specific measure: This is one of the most important elements of the Strategy and is directly related to the activities of the Ministry and other public institutions concerning the development of the anti-corruption action plans (Measure 2.6). The time limit for this activity should be harmonised with the time limits and capacities within the ministries and other public institutions. However, the situation is that no information is available concerning any institution at state or entity level or in BiHBrcko District that potentially enacted any anti-corruption plan. It is indicated by the implementation indicators and by the lack of action plans or reports to be provided to the Anti-corruption Agency. There are numerous reasons for that, including in particular ”lack of ownership” and insufficient coordination of administrative framework for decision making. Speaking of the ”lack of ownership”, we address the state-level institutions (ministries and agencies) that have not been aware of their obligations in this area since the beginning of the implementation of the Strategy. The likely reason for that is the lack of implementing regulations that should specify the format, structure and content of the concerned plans, which misleads the institutions about their obligations in this area. Speaking of insufficiently coordinated administrative framework for decision making, we mean that based on decisions of executive and legislative authorities entities and Brcko District have not adopted the existing Strategy according to the Law on Anti-corruption Agency. Therefore, behaviour of the relevant entity and Brcko District authorities is not any surprise. It cannot be realistically expected to get this measure implemented by the envisaged time limit (June 2011).
Recommendations: In order to implement this measure or to develop and implement anti-corruption action plans across the fields (public health, police, judiciary, education, inspections, construction land, etc.), it is first necessary to communicate the present Strategy and Action Plan to all stakeholders. That means meetings between the Agency with all responsible institutions at state level, providing assistance for defining format, structure and content of the plans (possibly by implementing regulation of the Council of Ministers), establishment of the communication channel, definition of time limits, etc. Given the dynamics so far, these activities are not expected to be implemented by the end of 2011. As for the entity level and BiH Brcko District institutions, the most important initial activity of the Anti-corruption Agency should be comprehensive communication with the executive and legislative authorities aiming at adoption of the Strategy and commitments resulting from it. Despite the fact that the Law stipulates this, no improvement in this area can be expected without the involvement of the Agency. Only after the executive and legislative authorities of the entities and Brcko District adopt the Strategy and the corresponding Action Plan, it can be expected that their relevant authorities (with or without implementing regulations) will gradually develop and implement anti-corruption action plans. The fact that the RS Government in 2009 enacted the Anti-corruption Strategy should be emphasized in a sense that it hampers the adoption of the national Strategy and the corresponding Action Plan. Implementation of this measure in the relevant entity and Brcko District authorities can be expected only at the beginning of 2012.
Within the programme area 1.10.of the 2009 – 2014 Anti-corruption Strategy Action Plan, the following specific measures are foreseen to be undertaken:
1.10. Ensure that the highest trust be placed in the Agency as the anti-corruption body
Time limit for implementation: December 2012
Responsible institutions: Anti-corruption Agency
Analysis of the level of implementation of the specific measure: If all said activities related to capacity strengthening are realised, the Agency may implement the envisaged measure in the envisaged time limit (December 2012). This primarily encompasses its so far results and the possibility for the public to control the performance and activities of the Agency in a transparent and timely manner. That means that it is necessary for the Anti-corruption Agency to have professional staff, relevant internal documents, organisational culture and major functions. The main obstacle to this may be obstruction related to corruption affairs of the political elite in the country that the Agency may touch upon. Also, the integrity of the director and his attitude and that of staff towards the statutory obligations related to the operation of the Agency are crucial. However, even in this phase certain facts have been identified as potential trouble in future implementation of this measure – interference of the politics with decision making by managers, lack of commitment of the existing managers for the implementation of the Strategy and untimely issuing of certain decision, etc.
Recommendations: In order to ensure the highest trust placed in the Agency as the anti-corruption body, it is crucial to transparently appoint managers as soon as possible. Following that, the Agency should immediately perform preparations related to organisation, material and human resources and to start performing its tasks including prevention of corruption and coordination of fighting corruption. That for sure is not an easy and simple task but it is possible to achieve it with respect to envisaged time limit. The result of the activities should be the best reputation of the Agency when it comes to public opinion of fighting corruption. There should be more qualitative reports on offences involving corruption. There should not be any objections to the operations of the Anti-corruption Agency itself.
Within the programme area 1.11.of the 2009 – 2014 Anti-corruption Strategy Action Plan, the following specific measures are foreseen to be undertaken:
1.11. The Agency coordinates the implementation of action plans for the purpose of more efficient fighting corruption and prevention of corruption in various fields
Time limit for implementation: June 2011
Responsible institutions: Anti-corruption Agency, relevant state-level, entity and Brcko District ministries
Analysis of the level of implementation of the specific measure: This measure, envisaged for June 2011, is non-realistic taking into account that the new BiH and entity governments have not been established until 2011 following the October General elections. Given the fact that since the moment of the approval of the Strategy to date no formal decision exists by the entities and Brcko District to adopt the 2009 – 2014 Anti-corruption Strategy and the Action Plan, the implementation of the measure is seriously hampered. Also, it should be reiterated that the Agency is currently unable to perform adequate operations not to mention coordination of institutions at state and entity level concerning the implementation of action plans.
Recommendations: As recommended for measure 1.9. the Anti-corruption Agency should establish communication with entity executive and legislative authorities for the purpose of adoption of the Strategy and commitments resulting from it. Only after that, entity Anti-corruption Strategy action plans can be developed. They should be in vertical and horizontal compliance and have time limits in accordance with the national Strategy. As for the state level, in addition to improvement of communication between the Agency and relevant state-level ministries, it is recommended to ensure certain advisory assistance with adjustment and development of action plans for each ministry. The time limit for this activity should be the end of 2011.
Within the programme area 1.12.of the 2009 – 2014 Anti-corruption Strategy Action Plan, the following specific measures are foreseen to be undertaken:
1.12. The Agency is able to conceive and implement the modern anti-corruption programmes and corruption awareness raising programmes
Time limit for implementation: December 2012
Responsible institutions: Anti-corruption Agency, BiH Council of Ministers
Analysis of the level of implementation of the specific measure: Taking into account the time limit for this measure (December 2012), the measure seems to be realistic and should perhaps take into consideration the status of the existing civil society that is active in this field. As a matter of fact, all countries agreed on the common approach of the public and civil sector concerning the anti-corruption programmes and corruption awareness raising programmes. If this measure stipulates that the Agency should have staff available for all segments, there may emerge the risk of over sizing and cumbersome administration within the Agency itself. Anyway, the realisation of the proposed measure depends on the future capacity of the Agency.
Recommendations: Development and implementation of the modern anti-corruption programmes and corruption awareness raising programmes does not necessarily mean that this is an exclusive task of the Agency. Namely, taking into account the importance and role of the civil society in this area, their involvement is crucial in the anti-corruption activities and corruption awareness raising programmes. The role of the Agency in this area should rely on programmes developed on the basis of analyses conducted, organisation of public calls for NGOs to propose projects (together with the Agency or on their own) in this area and funds raised for this purpose in cooperation with the BiH Council of Ministers. It should be borne in mind that public calls may be based on tenders announced by the Agency or by means of the existing mechanisms in the BiH Ministry of Civil Affairs. This definitely requires allocation of additional funds. Finally, the interest of the EU in the issues of corruption should not be neglected. Therefore, certain projects for this purpose may be proposed within IPA funds.
Component 2: Prevention of Corruption
A distinction is made between two forms of corruption: situational and social corruption. Situational corruption tend to eliminate situations that may lead to corruptive behaviour, and social corruption is focused on social and economic factors that may lead to or affect behaviour with elements of corruption. The 2009 – 2014 Anti-corruption Strategy in Bosnia and Herzegovina includes integrated approach to preventive anti-corruption activities: almost equal attention was devoted to prevention of situational and social corruption. Thus, typical situational preventive activities presented in the UN Manual for anti-corruption policies are also presented in the relevant BiH Anti-corruption Strategy (including discretion of officers, simplification of procedures, improvement of transparency, etc.) as well as typical social preventive activities (raising public awareness and participation of the public in anti-corruption activities). Taking into account that the author of the Strategy divided them into two parts, this chapter is devoted only to situational preventive activities addressed in the III chapter of the Strategy as follows.
The first element of the anti-corruption preventive activities refers to responsibility. Responsibility in the context of situational anti-corruption preventive activities refers to the relationship between a holder of a right (a principal) and an agent or agencies (institutions) implementing the right; assigned duties are to be performed duly and with bona fide attitude towards the principal. Responsibility includes systems of internal and external monitoring and control within the administrative apparatus, responsibility of public institutions and civil servants to provide explanations to the public and interested parties as well as implementation of regulations (Meagher, 2008). Transparency is taken as an important element of responsibility: it is a quality of clear, sincere and open acting on the part of decision makers both in private and public sector. Transparency is a principle implying predictable and rational acting, while sufficient information must be available in order to establish whether a certain procedure was respected when decision was made. Therefore, transparency is a key element of a responsible governance that is necessarily related to better allocation of resources, better efficiency and prospect for (economic) success (Anti-Corruption Resource Centre, 2011). Meagher states that transparency includes two types of openness: essential openness indicating the level in which the content of state policies and procedures is familiar to all interested parties, and procedural openness indicating the level in which official decisions are made publicly, that is, when the public may follow procedures and express their positions. The concept of transparency and responsibility in the Strategy and the corresponding 2009 – 2014 Anti-corruption Strategy Action Plan has become operational by a number of measures with a following common characteristic – reform and establishment of a more efficient administration.
Integrity is considered to be practical implementation of principles of professional and personal ethics. It is a major condition of a legitimate relation of an authority with the public: it links the administration to the legal system and regulates its relation with the society making it predictable and accountable. Thus, integrity establishes a criterion of trust, competency and professionalism. In the domain of prevention of corruption, in adequate relation towards officers, etc., in addition to raising awareness of harmfulness of corruption, integrity is determined and improved by clear norms governing office management where general or specific legal acts are applied and by internal or external control of the quality of office management. The 2009 – 2014 Anti-corruption Strategy in Bosnia and Herzegovina elaborates the concept of integrity as an element of preventive anti-corruption activities by development of integrity plans, assessment of risk across the fields prone to corruption and by testing of integrity across sectors of public administration and individual positions where corruption was found.
As stated in the former Monitoring, notorious is the fact that systems with complicated rules concerning the market business activities, in particular those with considerable discretion rights, are more sensitive to corruption than those with clear and transparent rules. Simple, clear and transparent rules reduce the possibility for inadequate acting of public servants. These rules actually increase the possibility that offenders will be held legally and politically liable. They also improve efficiency of administration. Several administrative levels with complex procedures and unclear reporting rules, responsibilities and obligations hamper the possibility to make difference between the legal and illegal action. Such instruments also protect corruption against formal and informal control even in situations when existence of corruption is beyond doubt. They hamper efficiency of establishment of individual responsibility (United Nations Office on Drugs and Crime, 2003). Simplification of business environment has become operational in the Strategy by means ofthree short-term and two mid-term measures that are aimed at identifying of complex procedures and their eliminationor simplification and supervision on the part of parliament.
In addition to a statement that the Action Plan and Strategy are not in mutual compliance content-wise and time limit-wise,12 given the fact that some measures from the Action Plan refer to different time periods in 2010, and some of the measures refer to the period until the beginning of 2011, it should be noted that this report provides analysis of any achievement concerning implementation of the Action Plan after the most recent monitoring in the last quarter of 2010. This approach is primarily justified by the fact that some of the preventive measures were to be implemented in the last quarter of 2010 and since their implementation is continuous and gradual it makes sense to analyze some of the objectives yet to be achieved.
Public sector reform, transparency and responsibility
SHORT-TERM MEASURES
Specific measure 2.1
Develop and adopt a public sector modernisation programme with the purpose of strengthening public sector in BIH, so that it performs its function in a more efficient, reliable and predictable manner.
Time limit for implementation: November 2010
Responsible institution: BiH Council of Ministers, Agency, Public administration reform coordinator's office
Implementation indicators: BiH Council of Ministers adopted the public sector modernisation programme.
Analysis of the level of implementation of the specific measure: As indicated in the previous Monitoring,,the Anti-corruption Agency is not functional at the time of writing the report, which largely hampers implementation of the preventive anti-corruption tasks. This institution is actually an initiator and coordinator of almost all preventive activities. Therefore, the lack of its functioning is a serious obstacle for any attempt to fight corruption.
Thus, questioned about the progress of the anti-corruption preventive activities, the general secretariat of the BiH Council of Ministers in its letter responded by referring to the fact that the Public administration reform coordinator's office and the Agency were responsible to enact the public sector modernisation programme, and that the said institutions failed to provide reports for consideration and thus the Council of Ministers was disabled to discuss them and officially enact them. Following the development of the most recent Monitoring, the Public administration reform coordinator's office reported that no activities had been launched with the aim of development of a separate document such as the public sector modernisation programme. However, in its response concerning the present Monitoring, the Public administration reform coordinator's office states that a meeting was initiated with the representative of the Anti-corruption Agency in December 2010 concerning the development of the public sector modernisation programme, and that it was concluded that in addition of the general idea, the existing Public Administration Reform Strategy was to be revised and another document enacted to directly address the issue of public sector modernisation in the context of fight against corruption. The document should be enacted in spring 2011. Despite the hints of progress in implementation of this measure, it has not been implemented so far (especially taking into account the time limit – November 2010).
Specific measure 2.2
Analysis of implementation of the Law on freedom of access to information in all institutions at all levels of government in BiH.
Time limit for implementation: August 2010
Responsible institution: Agency, all ministries and other authorities at all levels
Implementation indicators: All public institutions at all levels have their procedures for freedom of access to information and have analyzed them; The reports have been provided to the Agency and BiH Council of Ministers.
Analysis of the level of implementation of the measure: As Kregar (2008) states, relationship between the government and citizens is based on trust. Therefore, openness is a principle and obligation of public authorities, and citizens are entitled to accessibility to information possessed by public authorities. In order for the civil society to monitor operations of public institutions, exercising right to access to information is a powerful instrument of that concept. Citizens need to be aware of the set-up of public authorities, their role, scope and manner of utilisation of resources and the system of responsibility. That has become the European standard of public administration (Kregar).
Like in case of the previous measure, the BiH Council of Ministers has not received any analysis of procedures of implementation of the Law on freedom of access to information. Based on a survey conducted by Transparency International (2010) on awareness of institutions of the 2009-2014 Anti-corruption Strategy, majority of those institutions that participated in the survey at entity and Brcko District level performed an analysis of implementation of the Law on freedom of access to information. For that purpose they could provide exact number of parties who addressed them requesting the access to information possessed by them. Most of them received a response.However, since the Agency is not functional and for that reason no report could be provided to it concerning the implementation of the Law, and analyses conducted by the institutions were not initiated by the Agency based on the 2009-2014 Anti-corruption Strategy and it was rather a result of some other activities, logical is the conclusion that this measure has not been implemented.
Specific measure 2.3
Establish open communication channels in the institutions at all levels of government in BiH in order to encourage client or civil servants to report corruption (indicative list of communication channels may contain sealed mail boxes, special telephone lines, e-mail address).
Time limit for implementation: July 2010
Responsible institution: Agency, all ministries and other authorities at all levels
Implementation indicators: Sealed mail boxes, special telephone lines, e-mail address to which individuals may report corruption (including the possibility of anonymous complaints).
Analysis of the level of implementation of the measure: Notorious is the fact that because of symptomatic behaviour of people prone to corruption, it is characterised by clandestiness. It is not as obvious as other illicit activities. In addition, corruptive act is often perpetrated in intimacy of the perpetrators. Therefore, witnesses are excluded. The measure under 2.3.of the Action Plan is aimed at encouraging reporting of corruption in order to eliminate or reduce difficulties in an attempt to detect corruption. It is close to impossible in Bosnia and Herzegovina to establish the system in which a person would be able to anonymously report corruption without fear of any maltreatment (it is probably the intention of the author of the Strategy). Such mechanisms do exist in some places;13 however, not in all authorities. Their activities in this field are not the result of systematic implementation of the Strategy. They are rather a result of efforts made in the overall public administration reform or initiatives of respective institutions. As the measure is in correlation with others (e.g., 2.6. and 2.12.), t