ANTI-CORRUPTION LAWS ON HOLD

UNCLAS SECTION 01 OF 03 BAGHDAD 002785 SENSITIVE SIPDIS E.O. 12958: N/A TAGS: PGOV KCOR ECON IZ SUBJECT: ANTI-CORRUPTION LAWS ON HOLD REF: (A) BAGHDAD 2576, (B) BAGHDAD 2766; (C) BAGHDAD 2695 ¶1. (SBU) SUMMARY AND COMMENT. As Iraq anticipates the release of a new anti-corruption strategy (Ref A),three statutes that would strengthen institutional frameworks remain pending in parliament, while a separate, general anti-corruption statute is still being reviewed by the Council of Ministers. These four draft laws were introduced in 2008 and, if passed as a package, could help anchor the strategy, if not fully define it. Their strong emphasis on enforcement fits well with UNCAC's approach, but complementary statutes (on governance, economics, education and media) are necessary to truly entrench the strategy. We do not anticipate movement on these statutes in the near term, as parliament focuses on amending and approving the national elections law and questioning ministers (refs B and C). Should they pass, the anti-corruption laws would represent some major advances -- such as the introduction of plea bargaining and improved liaison with international partners and expanded abilities to pursue cases. They may also portend possible administrative weakening and a reconfiguration of the Commission of Integrity that could make it more like a U.S. prosecutor's office and less like an Iraqi FBI (i.e., a passive recipient, rather than an initiator, of cases). END SUMMARY AND COMMENT. ¶2. (SBU) Iraq's ratification of the UN Convention against Corruption (UNCAC) in March 2008 highlighted the need to strengthen the institutional foundations for anti-corruption efforts. Leaders of Iraq's anti-corruption institutions -- the Commission of Integrity (COI),the Inspectors General (IG's),and the Board of Supreme Audit (BSA) -- negotiated four draft laws to provide a basic framework of oversight and enforcement. Three of these laws were packaged together and submitted to the Council of Ministers in June ¶2008. They seek to replace CPA Orders 55, 57, and 77, which governed operations of the COI, IG's, and BSA respectively. The fourth statute -- presented in November 2008 -- seeks to broaden the definition of corrupt acts and add teeth to enforcement. COI Draft Law is a Mixed Bag on Enforcement -------------- ¶3. (SBU) From 2003-06, the COI enjoyed substantial legal powers and strong leadership but lacked manpower and training. Nonetheless, in that period it attempted to press several cases against powerful politicians. This activism and poor security in Iraq brought threats that forced the emigration of then-COI Commissioner Judge Radhi. In response to Judge Radhi's activism, unwelcome in some GOI quarters, the June 2008 draft sought to weaken the Commission's investigative powers by requiring that COI first loop in ministry IG's to supervise all investigations. At present, the COI is not required to loop in IG's but may conduct investigations on its own and then submit the findings to an investigative judge for further disposition. The proposed draft also would permit the COI to dismiss a corruption case if it determines the case lacks merit. ¶4. (U) While the June 2008 draft weakens COI's prosecutorial powers, it would potentially strengthen enforcement by permitting COI to investigate sudden enrichment of a broader range of family members of government officials than current law permits. The June draft also introduced a new administrative structure, adding a second deputy commissioner for COI. A second COI draft was introduced in March 2009, revising the administrative structure of COI to include a board of directors that would further flatten governance of the institution. Qgovernance of the institution. ¶5. (SBU) COMMENT: On enforcement, both the 2008 and 2009 drafts would moderately circumscribe the COI's powers. On the administrative side, the 2009 draft appears to mirror power-sharing structures that have arisen elsewhere to establish a quota or "muhassasa" arrangement for Iraq's three main ethnic/sectarian groups. The second draft would dilute power structures even further. Efforts to flatten governance show continued mistrust of the COI by some GOI elements as officials try to insert additional nodes of influence. On balance, while the COI would emerge under either draft law with some expanded powers of investigation, it would also confront additional decision-making and enforcement turnstiles that could reduce its independence. Of the three institutional statutes being considered, the COI drafts would have the greatest impact, effectively making COI more like an American prosecutor's office than the FBI in that it would then receive cases from others rather than launch the inquiries on its own. END COMMENT. Inspectors General or General Inspectors? -------------- ¶6. (SBU) Prior to the fall of Saddam, several ministries had a "General Inspector" who acted as an "administrative enforcer" for the Ba'ath party. CPA Order 57 therefore created a new system of "Inspectors General" to provide internal oversight as practiced in the West. The 35 Inspectors General today possess widely divergent skill levels and resources, ranging from the Ministry of the BAGHDAD 00002785 002 OF 003 Interior's IG office (with 80 well-trained investigators per approximately 400,000 employees) to that at the Ministry of Education (2 investigators for an agency of 500,000). The June 2008 draft IG law would designate IG's as the principal agents for uncovering and conducting initial investigations in federal ministries, taking over those authorities from COI. The IG's would also gain power by being accorded higher rank (equivalent to deputy ministers) and protection from ministerial dismissal by requiring the Prime Minister's consent for such action. (NOTE: At present, the power to dismiss IG's rests with their respective ministers. END NOTE.) A Super-Inspector General? -------------- ¶7. (SBU) In July 2008, Dr. Adel Moshin (then PM Advisor on anti-corruption and also IG for Health) introduced a competing IG bill that provided for a new stand-alone body for a "Super-Inspector General." This Super IG would supervise the IGs, establish a common IG policy, and report to the Prime Minister. He would also oversee the IG reports and assure that IG recommendations would be implemented. This draft supplanted the earlier draft during parliamentary review. ¶8. (SBU) COMMENT: On balance, the first draft IG law would enhance the anti-corruption regime by strengthening the IG's; in the context of highly fractured government, it also gives the Prime Minister new leverage over ministers by giving him both appointment and dismissal power over IG's. The second draft appears to overdo those controls by subsuming IG independence into the orbit of an official appointed by the Prime Minister. END COMMENT. Auditors with Badges -------------- ¶9. (SBU) For most of its history, the Board of Supreme Audit (BSA) had the power to investigate and submit findings to an investigative judge. Saddam removed the investigative powers in the early 1990s to diminish oversight of his government. CPA Order 77 did not restore BSA's investigative power, but instead transferred it to the COI. (NOTE: CPA officials saw BSA as Iraq's GAO and COI as Iraq's FBI.) The current draft BSA law restores some investigative powers to the BSA. ¶10. (SBU) COMMENT: Allowing BSA to have some investigative powers -- along with COI and the IG's -- potentially boosts anti-corruption efforts by allowing more than one agency to have real teeth. If, however, the three investigative agencies are coopted by different parties or sects to target one another, anti-corruption efforts are distorted. In any event, the equilibrium achieved by submitting parallel COI, BSA, and IG statutes was disrupted by Adel Mohsin's super IG initiative, as noted. Lawmakers have also been quite divided on the issue of new administrative structures for COI. The BSA law -- seemingly the least controversial -- has not received any Council of Representatives (COR) readings, pending resolution of the COI/IG controversy. END COMMENT. Omnibus Law Broadens Penalties, Incentives, Structures and Authorities -------------- ¶11. (SBU) A fourth draft law would serve as an omnibus anti-corruption law, consistent with UNCAC requirements. It would strengthen existing anti-bribery laws making it illegal to offer a bribe to private sector officials, and for public officials to accept gifts or misuse their office. (COMMENT: Some of these provisions would be considered under U.S. system as overly broad or too vague. END COMMENT.) The statute would also empower the COI to offer rewards for turning in corrupt actors. In a major departure from Iraqi jurisprudence, the draft would also permit plea Qfrom Iraqi jurisprudence, the draft would also permit plea bargaining. The draft strengthens the conflict-of-interest provisions and allows the anti-corruption institutions to engage international partners without direct MFA involvement. The draft contains provisions for a specialized court to hear corruption cases. The draft also gives statutory authority for the Joint Anti-Corruption Council (a coordinating body chaired by the Council of Ministers Secretary General, that includes the three main anti-corruption bodies and the head of the Iraqi Higher Tribunal) to coordinate a national anti-corruption strategy and a new corruption monitoring center. ¶12. (SBU) COMMENT: The omnibus provision to appoint the JACC to oversee the UNCAC may be a mixed blessing; on the one hand, it would cement the anti-corruption concept in the Iraqi body politic, on the other, it could provide an opening for leverage by the Prime Minister. And while provisions to introduce plea bargaining and direct links to international enforcement are solid gains for anti-corruption efforts, the omnibus bill has virtually no strong advocates and remains stalled in the Council of Ministers. Indeed, none of the four bills are likely to become law before January elections. BAGHDAD 00002785 003 OF 003 ¶13. (SBU) COMMENT CONTINUED: Overall, the changes proposed in these laws indicate Iraq intends to treat corruption principally as a law enforcement matter, reflecting UNCAC's main focus and the mandates of those bodies that shaped Iraq's strategy. They offer only minor reinforcement of current efforts to promote transparency, accountability, and public awareness, other elements of most anti-corruption regimes. For those, Iraq will need other legislative and regulatory measures to complement its core anti-corruption statutes. END COMMENT.