I am busy looking into the history of donor-driven anti-corruption reform in Malawi. Interesting. Frustrating. Amusing. Another case of form and function not meeting.
Global Integrity did some nice work on the subject (http://report.globalintegrity.org/Malawi/2007/). They show a time-line of events starting in 1999. Reforms actually began a few years prior, with elections in 1994, a new anti-corruption law in 1995, and the creation of an anti-corruption bureau (ACB) in the same year. The first few years after this were full of positve signals--cabinet Ministers were referencing the struggle in speeches, the ACB was pursuing thousands of leads, etc.
But a scandal errupted in 2000 and 2001, where donor funds destined for classrooms ended up in government officials' pockets instead. Officials at all levels were implicated, including then-President Muluzi. Donors stopped funds. And started looking at what was really going on in the anti-corruption reforms. They found that the ACB was poorly staffed and resourced, that the ACB had investigated thousands of people but only initiated prosecutions in a handful of cases--very few of which ever reached conclusion. The ACB actually lacked authority to prosecute any of its cases, and was never a major player at all.
The picture was clear: A law plus law enforcer were created but never really had any influence or legitimacy. One would expect a dramatic response from all parties. But this never happened.
The anti-corruption reforms have continued along much the same path, with donors coming behind the ACB with increased funding and assistance. They have sponsored a new strategy document, and have even helped develop new IT-based approaches to designing systems of prosecution. They have also helped consistently modernize and update laws. (I am not sure who did it, but my favorite is the recent law against 'fouling the air' http://www.bbc.co.uk/news/world-africa-12363852). Very few countries in the world have such robust legal frameworks!
The 2007 Global Intergity Report called the situation for what it is: Malawi now has world class laws with a problem of implementation. In fact, the country ranked 90th out of 100 on the quality of its laws and 56th on implementation. The Report identifies a 'Very Large' implementation gap. This dropped a bit in the 2009 report, but still remains significant (http://report.globalintegrity.org/Malawi/2009).
Interestingly, Malawi's laws were rated at similar levels to Italy and the United States, Canada, France, Poland, Korea and South Africa. There are small 'formal' differences between developed countries (and middle income leaders like South Africa) and developing countries like Malawi. Developing countries now 'look better'. The real difference is in implementation, where the implementation gap in places like Italy, the US and others is substantially lower than that in Malawi (and other lower income developing countries like Nigeria, Nepal, Guatemala and Ethiopia--where the legal framework ranked 94 out of 100 in 2010 but implementation lagged at 46...). Developing countries that look better are not better in a de facto sense.
A 2010 review of NORAD/DFID support to Malawi's ACB references similar problems with making forms functional, but in words (http://www.norad.no/en/Tools+and+publications/Publications/Publication+Page?key=207030). Consider the following statements: "The National Anti-Corruption Strategy (NACS) has been launched, but key processes, such as an implementation plan and secretariat, are not in place yet." "The Government of Malawi approved a new ACB staff establishment...However, unsecure funding calls for more donor engagement, risking ACB’s independence." "The prosecution database has been developed but is not fully operational yet." "A prosecution strategy as proposed by the last review has not been developed and is seen as controversial within the ACB."
These kinds of descriptions raise questions about Malawi's ACB, which could also be raised in respect of legal reforms in many developing countries (especially given the implementation gaps evident in Global Integrity's work): Are these reforms square pegs in round holes? Or are they just examples of new pegs needing 'fitting'? Are they forms that will become functional? Or are they forms that cannot function because they are irrelevant in the context (as Richard Rose would say)?
Beyond these questions, lies the obvious one: Were there other forms of addressing the corruption problem that could have yielded greater functionality, in Malawi and beyond? Perhaps there are, on the ground, in select corners of Malawi and other countries. It would be great to hear if this is the case. I already know of the Business Action Against Corruption initiative (BAAC) which has emerged quite endogenously in the private sector (http://www.aiccafrica.org/index.php?option=com_content&view=article&id=115:baac-malawi-honoured-with-world-bank-anti-corruption-collective-action-award&catid=35:latest-news&Itemid=81). This seems to be a functional response by private companies to the problem. Note that it did not emerge because of a new law or specific form. It is really interesting, and begs questions: How is this different to the ACB initiatives?
Simple answers may be too simple: It is local, it is shaped to fit the context, it is the response of real agents to a real problem they care about. This is how 'real' solutions always look. What Lant Pritchett would call local trees with their own roots. My metaphor is a camel in the Sahara (instead of a Hippo).
ps. read Gerhard Anders' 'Like Chameleons..." for further information. http://apad.revues.org/137