Justice Reform, Experts: The will of Albanians to fight corruption must prevail

Author: Allison Pirog

Albania has looked to the international community for ways to eradicate judicial corruption, but experts say their solutions often lack local input and long-term thinking, missing elements that could lead to failure.

For example, reformers in Albania, advised by the U.S. and E.U., based the country’s Special Courts Against Corruption—which is investigating corruption in the judiciary and elsewhere — on Romanian and Croatian agencies. But Andi Hoxhaj, a scholar at Warwick Law School in the United Kingdom who researches anti-corruption efforts, said they are imperfect models because of those two countries’ unique socio-economic conditions. What works in one country may fail in another, he said.

Romania was chosen as a model because it also had a history of Communism, Hoxhaj said. However, Romania transitioned to democracy after a people’s revolt, while the Communist elite forced a regime change in Albania, he added.

“So that’s a huge difference, meaning that the public reaction [to reforms] can be different in these countries,” Hoxhaj said.

If the international community is involved, Hoxhaj said they should work more with locals, including grassroots organizations, to plan reforms.

“You read quite a few reports which are written by experts abroad, but they don’t engage much with the locals,” Hoxhaj said. “Sometimes you just hear what the international community wants to hear.”

Another expert on the subject, Alina Mungiu-Pippidi, a democracy studies professor at the Hertie School in Berlin, agrees with that assessment.

She suggests examining why the former president of Georgia is a success story for good governance. Mungiu-Pippidi says he ignored the advice of foreign donors but took their money. Estonia, which put in place successful anti-corruption programs, also had “absolute sovereignty” over these reforms, she said.

“People should reform their own countries,” Mungiu-Pippidi said, reflecting on what happened in Albania.  “They shouldn’t reform other people’s countries because you create disincentives for those who would eventually reform their countries if they think Brussels (referring to the EU) will come.”

The US government has advised Albania on reforms for the last 30 years. When asked to respond to critics who say Albanians should be the only ones reforming their judiciary, the US Embassy in Albania’s Public Affairs Office wrote in an email that an amendment to the Albanian Constitution [with regards to the justice reform] provides a role for international partners in reform efforts.

“From the beginning, it was clear opponents would create obstacles in an effort to maintain their ability to manipulate the justice system,” the office wrote.

Americans from the Office of Overseas Prosecutorial Development, Assistance and Training (OPDAT), which sends U.S. prosecutors to embassies as advisors, helped draft legislation and constitutional amendments to reduce corruption in Albania, the office wrote. OPDAT advises on ways to implement plea bargaining, cooperation agreements, a broader scope to seize assets and victims’ rights, they added.

“OPDAT continues to help Albania to implement these critical changes to the system with workshops and assistance in drafting sub-legal acts, regulations and guidelines necessary for the functioning of Albania’s justice institutions,” the Embassy’s office wrote.

But good governance programs only work if a country reaches a “critical mass” of people who want reform, not when foreign advisors institute programs as they have in Albania, Mungiu-Pippidi said. None of the eight cases of E.U.-funded good governance programs Mungiu-Pippidi has studied were effective, she added. She is concerned Albania will suffer the same fate.

Mungiu-Pippidi isn’t alone in her view that reform needs to come from within a country rather than imposed from outside. A March 2020 Council of Europe report found Albania was under-utilizing its “internal solution capacity” to address corruption and instead asking for international help after years of international involvement.

The report recommended the E.U. train Albanian officials to implement sustainable approaches that use Albania’s own resources.

But the U.S. continues to invest millions in Albania. The State Department and Agency for International Development spent $4.89 million on democracy, human rights and governance in Albania in 2020, according to a Department of State fact sheet. The Embassy in Tirana works with a “spectrum” of the public, including students, politicians, NGOs, state institutions, the media and the military, the Public Affairs Office wrote.

NGOs can apply for grants from the U.S. Embassy. Applicants submit a proposal, and preference is given to projects that “combat the culture of corruption” and “promote civil society’s role in furthering democratic processes,” along with other objectives, according to the Embassy’s website.

But Hoxhaj sees two problems with that process and the way reforms are often implemented in Albania from the outside in. He says donor countries that fund anti-corruption efforts in Albania, mainly the U.S. and the E.U., tend to work with a small group of NGOs that have a financial incentive to avoid major improvements. If corruption is diminished, these organizations will likely lose their funding.

Another problem, Hoxhaj said, is that donor money is sometimes wasted on good governance programs that teach ethics despite the fact that corrupt officials already know the difference between right and wrong.

The government of Albania should focus on eradicating income inequality and improving education, the root causes of corruption, if it wants to make progress in the long-run, Hoxhaj said, citing social policy advances in Denmark, Sweden and Estonia that have led to less corruption.

Another problem leading to well-intentioned reforms going awry, said Alban Dafa, a researcher of governance and security at the Institute for Democracy and Mediation in Tirana is the delay in the establishment of the vetting institutions themselves, which took much longer than the eight months originally stipulated.

Some E.U. officials have blamed the opposition for slowing down the vetting process by filing a constitutional challenge, but Dafa said the opposition were just exercising their constitutional rights.

Because of the current chaos in Albania’s judicial system that is directly related to the reforms, the public’s disappointment in the E.U. and U.S.’s reforms is growing and will harm donors’ reputations, Dafa said.

“Unfortunately, this [disappointment] has not caused reflection in policymaking,” Dafa said. “They’re rather intransigent in sticking to the course.”

As for judicial corruption in particular, another expert suggests there might be a way to reduce it in Albania and elsewhere by simply geographically separating the justice system’s buildings from other government offices.

Juan Wang, an associate professor of political science at McGill University, said judicial corruption is more likely to occur when there are close relationships between judges and other members of government, often referred to as “institutional proximity.”

“You can imagine [institutional proximity] as a vehicle,” Wang said. “It’s a tool of transportation where corruption can get on it.”

She added that the more frequent and informal interactions between judges and other officials become, the more institutional proximity becomes a vehicle for corruption especially in criminal cases where police departments are located close to a courthouse.

Wang said reducing the frequency of interactions between judges and officials by keeping court buildings separate from other government offices can help solve the problem.

As for Albania, Mungiu-Pippidi said it will take more time to determine if the reforms will bring change, but she is not optimistic they will be successful.

“It’s too early to judge,” Mungiu-Pippidi said. “Of course, I hope… that it works.”