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Thursday
Aug022018

Vlora Marmullakaj: Anti-corruption challenges in a post-conflict country

I'm from Kosovo. It's one of Europe's smallest countries -- about half the size of Vermont -- and its newest, having emerged from war as an independent state in 2008.

Since then, and after a decade of focusing on anti-corruption enforcement, Kosovo and its 1.8 million people are still struggling with graft. The country currently ranks a rather discouraging 85th on the Corruption Perceptions Index.

Despite adopting international best practices, anti-corruption reform isn't producing results as expected. Why not?

My recent involvement in drafting two very important laws, namely the Law on Prevention of Conflict of Interest in Discharge of Public Functions and Law on Protection of Whistleblowers, reveals that post conflict countries can make the best of efforts to have advanced legislation yet make little or no progress against corruption.

Here are a couple of reasons for this.

First, insufficient transparency in the process of lawmaking. Kosovo is still establishing its place as an independent country, aspiring to become a member to international organizations. Becoming a member of the EU is the most important process geographically and strategically.

Further, Kosovo currently is the only country in Europe whose citizens cannot travel freely in the Schengen zone. A Visa Liberalization Roadmap for Kosovo (VLR) includes a number of conditions that need to be met before an EU  decision to lift visa requirement, among which fight against corruption is the key.

In this regard, the need to enhance the anti-corruption legal framework is a must. For example according to the VLR, Kosovo should fulfill the following requirements: "…Adopt and implement legislation on the prevention, investigation, prosecution and adjudication of organized crime and corruption.’’

This requirement creates situations where the government drafts and adopts legislation in a very speedy way, without adequate transparency, for the sake of meeting EU-imposed goals. The latest draft legislation on the protection of whistleblowers is one example where a law was drafted and adopted by the Government (pending adoption by the Assembly) quickly and through a largely opaque process.

That in turn leads to the problem that few people who are subject to the law will understand the new law or its purpose. Without some "socialization" of the law, it probably won't have acceptance and there will be a risk that it won't be implemented or enforced.

Second, lack of institutional framework. Most of the anti-corruption laws are drafted and adopted based on standards and best practices, yet without taking into consideration the need for an underlying institutional framework.

While drafting the law on the protection of whistleblowers, the will to comply with the standards and best practices was there, yet the difficulty arose as to how and which institutions would best be able to implement the law and enforce it.

The Anti-Corruption Agency is the body in Kosovo entrusted to oversee the implementation of the anti-corruption measures. Although that agency enjoys a favorable reputation compared to other institutions, it is hard to imagine how it will manage to implement and oversee the laws with a staff of just 40 people.

There is also an understandable lack of skill and experience in Kosovo to deal with legal novelties such as the protection of whistleblowers.

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The point is that the focus is put on making new laws, without taking into consideration other factors that might impact implementation and enforcement.

Requirements by international organizations to change laws and copy and paste what worked in other countries may not be the best way forward. Other changes need to go hand in hand if results are expected. Otherwise, Kosovo and countries like it are less likely to make any tangible progress in fighting corruption.

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Vlora Marmullakaj is a senior project officer for the Project Against Economic Crime. She's a lawyer and anti-corruption practitioner currently pursuing MA in Anti-Corruption Studies at IACA in Vienna/Laxenburg, Austria. She can be contacted here.

The opinions expressed in this post are the author's own and not those of the Council of Europe.

Reader Comments (1)

While I can't speak to the situation in Kosovo, the author of the post usefully highlights some of the common pitfalls of anticorruption reform: a focus on adoption of legislation - which is easy to measure, and which often raises the temptation of a cut and paste approach - without regard to the legal and institutional context, and without adequate institutional support, or capacity, to enforce or implement.
August 2, 2018 | Unregistered CommenterRob Leventhal
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