Need To Enhance CIAA’s Credibility

The Commission for the Investigation of the Abuse of Authority (CIAA), created by the federal constitution of Nepal, has been subjected to public scrutiny during these days.  Surya Nath Upadhyay, a former chief commissioner of this national anti-graft body, has remarked in an interview published in a national daily the other day that the CIAA was established keeping it above the influence of the cabinet. But that institution’s credibility has been in question because of its (disputed) leadership. The current CIAA leadership was appointed by introducing an ordinance issued during the time of former prime minister KP Sharma Oli instead of taking recourse to the provision of the prevailing law of the land. The process of appointment, according to Upadhyay, itself had raised a question about the CIAA’s credibility. Upadhyay widely appreciated for his integrity and high moral character, has made a very pertinent observation stating that political leaders can appoint and  use  their people  at CIAA  to affect the outcome of cases. 

This indicates that CIAA credential at present is not above doubt and reproach. CIAA commissioners and officials themselves have also been found guilty of abusing their authority and thus performing corrupt acts and practices in the past. Many knowledgeable persons hold the opinion that CIAA is growingly becoming weak, and it has not been free from several structural malaises and weaknesses. Unless these weaknesses are properly addressed, the anti-graft body   cannot be expected to work effectively in curbing the corrupt practices in public offices.

Loyalty

Many civil society leaders allege that the CIAA commissioners and authorities are appointed with reference to their loyalty to the ruling politicians and political parties not on the basis of their prudence, independence and moral character.  This is one of the primary reasons, as pointed out by independent civil society observers and governance analysts, why CIAA has not been functioning efficiently to serve purpose for which it was created. The functions, duties and powers of CIAA are enshrined in Article 238 of the Constitution of Nepal, 2015. According to the constitutional provision, the Commission is mandated to conduct, or cause to be conducted, investigations of the abuse of authority committed through corruption by any person holding public office. 

If the Commission  finds on investigation conducted  that a person holding public office has committed an act which is defined by law as corruption, it may file, or cause to be filed, a case against that person and other persons involved in that offense in the competent court in accordance with law.  The Commission can delegate any of its functions, duties and powers related with conducting of investigations or filing cases, to the Chief Commissioner, a Commissioner or an officer of the Government of Nepal to be exercised and complied with subject to the specified conditions. 

Likewise, the constitution has also defined the qualifications of the commissioners that include   a bachelor's degree from a recognised university, non-partisanship, long experience in the field of accounting, revenue, engineering, law, development or research and so on.  Moreover, the constitution explicitly states and requires that the commissioner should be a person with a distinguished career endowed with a high moral character. The constitution intends that the appointment of CIAA chief should be based on the criteria of competence and integrity. It is hence an important constitutional body enjoined with role and responsibility to guard against the misuse of public resources. 

The Commission’s functions and mandates are significant in enhancing good governance and public integrity in the country. But the CIAA commissioners have allegedly failed to meet the constitutional expectations particularly owing to the lack of their independence and competence. The appointments carried out during the initial days of the Commission especially following the restoration of the multiparty democracy in 1990 had been almost free from controversies and suspicions. The persons recommended for the position were more or less known for their integrity and commitment. Persons like Surya Nath Upadhyaya had reportedly lifted the morale of the CIAA high and the constitutional body had earned an unimpeachable credentials.  

Free from interference

However, later the CIAA had to reckon with the weakened and reduced capacity because the government (Constitutional Council) did not function promptly not only to fill the vacant positions in the commission but also recommend the persons with known integrity and high moral character during the succeeding years. As a consequence, those appointed at the CIAA have not performed up to anticipation to demonstrate their integrity, excellence and independence. Taking cognizance of the need to strengthen the commission and enhance the image accordingly, the government should commit to allow it to function independently free from any influences and interferences. The positions in the constitutional bodies have been reportedly shared as spoils among the major parties. And the post of CIAA chief commissioner is said to be the reserve of the ruling party. 

The failure on the part of political leaders to recognise and appreciate the importance of the constitutional bodies like CIAA to promote good governance, rule of law and social accountability has been one of the reasons why this institution has not been able to deliver performance upto constitutional promise.  The record of some of the CIAA commissioners has not been above and beyond reproach which indicates that the appointment process itself is flawed and tainted.  It is, therefore, incumbent upon the government to respect the integrity and sanctity of the commission and as and when it so requires  recommend the names of the persons who are taintless and committed to fighting abuses of authority attributed to  power wielders and influential authorities in the country.

(The author is presently associated with Policy Research Institute (PRI) as a senior research fellow.  rijalmukti@gmail.com)