Effective Law Enforcement – Nigeria & Malawi

Fighting high-level corruption in Africa: Learning from effective law enforcement

Project Summary

Law enforcement in Africa, ranging from investigations and punishment of corrupt officials to asset recovery, plays a principal role in combating corruption but it often is seen as inherently problematic due to the scale of the corruption problem, lack of resources, and external influences. However, a growing number of high-profile cases across the continent offer important insights into the conditions and factors shaping law enforcement.

This project is the first comparative study of law enforcement efforts targeting high-level corruption in Africa that aims at identifying the enabling and constraining factors and conditions for effective enforcement practice. This focus promises to generate new evidence that has been missing in anti-corruption research, contributing to a more comprehensive understanding of what is needed to successfully target those involved in grand corruption. The project analyses the various investigative and legal tools available in criminal proceedings, as well as innovative legal strategies.

What constitutes ‘effectiveʼ law enforcement will take into account what is deemed so by different actors (political leaders and law enforcement officials at different levels and different agencies). The project compares the law enforcement response to high-profile corruption scandals in Nigeria, Tanzania, and Malawi, where high-level corruption is rife but has been targeted by the authorities.

Policy and Programming Implications

The research findings will be fed directly into policymaking and law enforcement in the three countries. Additionally. the projectʼs findings will be relevant beyond the three countries studied as they offer insights for the global anti-corruption debate more broadly.

Research Questions

The analytical and comparative framework differentiates five principal factors shaping law enforcement activities:

• Influence exercised by politicians, officials, superiors, and other national actors aimed at either strengthening or obstructing law enforcement in the context of the countriesʼ political economy /political settlement.
• Foreign involvement by donor agencies and foreign interests.
• The legal framework, including criminal, private, and procedural law, to identify effective and flawed legislation and the ways it is employed by legal actors.
• The institutional architecture, focusing on the capacities of law enforcement agencies including the mandate, organization, resources, and personal qualities and leadership of individuals that are key to criminal prosecution, asset recovery, and civil litigation.
• The individuals who are prosecuted, punished, and have had their assets seized, as well as those suspected to be involved who do not face prosecution. Who are they and where do they come from? What are they accused of? Are they only small fish or are they the main perpetrators?

Methodology

This research requires a qualitative approach due to the sensitive nature of high-level corruption. The researchers will employ a mix of social-scientific and legal methods. They mainly conduct semi-structured interviews with key individuals in government, donor agencies, civil society organizations, and law enforcement agencies. In addition, the team will conduct desk research and analyze the legal framework.

ACE Impact

Findings

Our findings indicate that Malawian government officials hold a realistic view of the shortcomings of the country’s criminal justice system. However, government officials have keenly observed the law enforcement effort targeting the Cashgate scandal, and our interviews suggest that it has had a deterrent effect on high-level corruption. Drawing on our mixed-methods evidence, we identify several factors as critical in maximising law enforcement’s potential for corruption deterrence: the certainty of corruption detection and punishment; swiftness in corruption detection and punishment; and punishment severity, albeit less clearly and more ambiguously. With regard to the certainty of punishment, officials perceive that the law enforcement response to Cashgate has broken the pattern of almost complete impunity and the perceived likelihood of punishment has increased significantly. However, selective justice is viewed as a countervailing factor dampening any gains of more certain punishment. With regard to swiftness, our research reveals that swiftness in the detection and punishment of corruption is a particularly strong deterrence driver.

While concerned about the spread of corruption, government officials in Malawi in our study were positive about the potential for corruption deterrence by law enforcement even though they were keenly aware of the system’s shortcomings. They also emphasised the symbolic importance of the law enforcement response to corruption in an environment where corrupt officials are generally neither shamed nor shunned by their communities and peers. We would anticipate that our findings would generalise to similar contexts, implying that even weak anti-corruption law enforcement is worth supporting, especially where corruption is culturally acceptable.

From a policy perspective, our findings highlight the importance of law enforcement efforts within a comprehensive anti-corruption strategy, in both addressing specific instances of corruption and challenging the perception that corrupt officials enjoy impunity. Without the perception of a credible threat of certain, swift, and proportionate punishment, there is little hope that entrenched corruption can be curbed.

Impact

• We finalised toolkit for law enforcement in high-level corruption cases.
• We held a private workshop with key policymakers and officials from the US, the UK, Nigeria, and Malawi to discuss the way forward based on the research findings on 29 April with Chairman Bawa of the Economic and Financial Crimes Commission (EFCC), Director of Public Prosecutions Kayuni (Ministry of Justice Malawi), Rob Leventhal (State Department US) and Foreign, Commonwealth, and Development Office (FCDO) officials.
• We organised the public event “From Research to Policy: the ACE journey to impact” with 50 participants on 9 June 2021.
• We are keen to have face-to-face events in Abuja and Lilongwe to maximize impact and deepen engagement with policymakers and officials in Nigeria and Malawi if travel restrictions and the development of the COVID-19 pandemic permit.

We sustain ongoing engagement with former Director General (DG) of the Anti-Corruption Bureau Malawi, who has been appointed Solicitor General at the Ministry of Justice, the former Director of Public Prosecutions at the Ministry of Justice, Government of Malawi, who has been appointed DG at the Office of President and Cabinet (OPC), the Director of Public Prosecutions at the Ministry of Justice, Government of Malawi, and the new Executive Chairman of the EFCC in Nigeria, Code of Conduct Bureau in Nigeria.

We also have ongoing engagement with the FCDO (Whitehall, High Commission Lilongwe and High Commission Abuja, US State Department Bureau of International Narcotics and Law Enforcement Affairs, Washington DC.

Anders worked closely with the Public Service Reform Management Unit (PSRMU) at the OPC. To strengthen this impact, he also advised the Parliamentary Committees on Health and Government Assurances in Malawi’s National Assembly, which oversee public sector reform.

In Malawi, Anders has engaged policymakers and practitioners in the field of law enforcement. Anders provided input for the Anti-Corruption Bureau (ACB) and the Directorate of Public Prosecutions at the Ministry of Justice. Anders’ findings and guidance related to high-level corruption were taken up by both policymakers and practitioners in law enforcement.

In March 2020, Anders held a workshop with policymakers in Nigeria, bringing together representatives of all anti-corruption agencies and the legislature, to discuss the research findings from Nigeria. The findings received very positive feedback from workshop participants, who highlighted that they gained new insights on law enforcement and high-level corruption and plan to draw on the insights from the research. Specifically, participants were keen to strengthen intra-agency and inter-agency cooperation. The findings have already been taken up by the Code of Conduct Bureau (CCB), one of the principal Nigerian anti-corruption agencies. The engagement was continued in April and June of 2021, with two events aimed at feeding research findings into policymaking and raising awareness of the research findings among policymakers and officials in Nigeria, Malawi, the US, and the UK. The Chairman of the EFCC and the Director of Public Prosecutions praised the research findings and have taken up recommendations in the research reports and policy briefs.

Research Team Members

• Gerhard Anders (Principal Investigator), Senior Lecturer, Centre of African Studies, School of Social and Political Science, University of Edinburgh
• Fortunata Makene (Co-Investigator), Head of Strategic Research and Publications, Economic and Social Research Foundation, Dar es Salaam
• Matthew T. Page (Nigeria expert), Associate Fellow, Chatham House
• Nick Staite (Legal expert), Basel Institute on Governance