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Procedural fairness for curbing corruption

Taking bureaucratic decision-making out of the shadows

The wide discretionary powers of bureaucrats can undermine their impartiality, and result in decisions being made that are tainted by bias or have violated due process. Such opportunities for illegal, improper, or unfair behaviour may amount to corruption. By strengthening the legal requirement for procedural fairness and ensuring that disaffected individuals can challenge such decisions through the courts, there is potential to improve transparency and accountability and curb corruption.

20 February 2020
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Main points

  • Procedural fairness has the potential to improve transparency and accountability in a variety of bureaucratic decisions that are prone to corruption. However, a key challenge in highly corrupt settings is the absence of individuals who could promote and enforce it – politicians and bureaucrats will be unwilling to change the status quo since they benefit from it.
  • A statutory requirement for bureaucrats to provide written reasons for their decisions encourages better decision-making that is not only administratively sound, but also less likely to be tainted by corruption. The enactment of Fair Administration Action laws can improve bureaucratic decision-making and reduce abuse of power. Enshrining the right to fair administrative action in Constitutions or specific laws helps to clarify the legal position and provides a stronger basis for citizens and courts to enforce it.
  • Strengthening legal aid and legal empowerment of the population is a necessary pre-condition for the enforcement of procedural fairness in administrative decision-making. Disaffected individuals can challenge decisions through the courts of law and can apply for a specific remedy.
  • Judicial review of bureaucrats’ decisions can play a role in monitoring whether the principles of procedural fairness have been observed and where they have ‘got it wrong’. Individual case inspection can help them to improve, and court decisions can expose failings, stimulating reform and promoting good administration.

Cite this publication


Akech, M.; Kirya, M.; (2020) Procedural fairness for curbing corruption. Bergen: U4 Anti-Corruption Resource Centre, Chr. Michelsen Institute (U4 Brief 2020:4)

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About the authors

Migai Akech

Migai Akech is a legal scholar and works for the African Peer Review Mechanism Continental Secretariat as a governance expert. He attained the rank of Associate Professor at the University of Nairobi’s School of Law, where he taught for 20 years. Migai has published widely on legal and public policy issues, including: Administrative Law (Strathmore University Press, 2016), ‘Constraining Government Power in Africa’ (Journal of Democracy, 2011), and Privatization and Democracy in East Africa: The Promise of Administrative Law (EAEP, 2009).

Monica Kirya is a lawyer and Senior Adviser at the U4 Anti-Corruption Resource Centre. She coordinates the themes on mainstreaming anti-corruption in public service delivery and integrating gender in anti-corruption programming.

Disclaimer


All views in this text are the author(s)’, and may differ from the U4 partner agencies’ policies.

This work is licenced under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International licence (CC BY-NC-ND 4.0)

Keywords


transparency, accountability, bureaucracy, governance, legal empowerment, judicial review, Kenya