PARTICIPANTS’
PAPERSRESOURCE
MATERIAL SERIES
No.80
EFFECTIVE LEGAL AND PRACTICAL MEASURESTO COMBAT CORRUPTION IN IRAQ
Chemen Bajalan*

I. INTRODUCTION
Corruption acts as a major deterrent to growth and development. It is a global and widespread problem
which affects development and growth nationally as well as globally. The importance of the problem has
been increasingly recognized by the international community and in particular in developing countries. The
aim of this paper is to summarize existing conditions in relation to corruption in Iraq. In similarity with manyother developing countries and a country in transition, Iraq suffers from increasing trend in corruption withnegative effects on its reconstruction and development programmes. Iraq by the constitution is a federal
system and the region of Kurdistan is constitutionally recognized as federal region. This paper focuseson the Iraqi legal system for combating corruption. Since the political situation in Kurdistan from 1991 isdifferent from the rest of the country, the paper mansions briefly the legal system in Kurdistan as well.
The rest of the paper is organized as follows. The paper begins with a brief overview of corruption, andthen turns to a review of the situation in Iraq. This is followed by a discussion of the corruption related
offences in the Iraqi Criminal Law. The discussion above is continued with an overview of the entities thatmonitor transparency and combat corruption in Iraq. Media and its role have been briefly studied. The paper
ends with a summary which includes some of the challenges that face fighting corruption in Iraq and somesuggestions that support the effort to retain the transparency in the country.

II. A GENERAL BACKGROUND TO CORRUPTION
According to the United Nations Global Programme against Corruption, currently there is no single,
comprehensive and universally accepted definition of corruption. However, listing specific types or actsof corruption can be recognized and clearly identified. Corruption can be defined as the abuse of publicly
entrusted power for private ends and it usually involves officials from the public sector. Thought the states
are reluctant, corruption in private sector is increasingly recognized recently.
Corruption can be “Grand” or “Petty”. The first pervades the highest levels of national government
leading to a broad erosion of confident in good governance, the role of law, and the economic stability. In thecase of Iraq “Grand” can relate with the oil industry where the looted money reach millions of dollars. The
looted money in the oil for food programme is also an example for this type of corruption. The minister of
trade has been accused in misusing his authority and getting personal benefits from the programme.
Petty corruption involves the exchange of very small amounts of money, the granting of minor favors by
those seeking preferential treatment or the employment of friends and relatives in minor positions. . This
type of corruption is been practiced in Iraq on daily basis. Kurdistan region suffers less from corruption in
the shape of bribes; however, preferential treatment for political supporters and relatives is a major problem.
It is a reason for suspicion of the government among the people.
Also corruption can be “active” which refers to the offering of the bribe or “passive” which refers to thereceiving of the bribe. According to the Iraqi criminal law both offering and receiving are in the same legal
category. According to the last paragraph of Article 310 “… The person who offers a bribe as well as theintermediary is punishable by the penalty prescribed by law for a person who accepted such bribes”.
* Public Prosecutor, Public Prosecution Directorate, Ministry of Justice, Iraq.

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Research indicates that corruption exists in all societies, but it is more pervasive in some societies
and more common at some times in their process of evolution. They focus on a number of studies where
researchers investigate the reasons for corruption to be more widespread in some countries than others.
A number determinants of corruption are identified in the literature ranging from political modernizationand the speed at which it takes place, lag in adjustment of laws and regulations to adapt to new conditions
with the objective to prevent corruption, historical and cultural traditions, levels of economic development,
political institutions, government policies, to duration in democracy and ethnicity.

III. AN OVERVIEW OF THE CONDITIONS IN IRAQ
Iraq is a country which has been in a series of wars including wars with its nation of Kurds. In 1991
the central government withdrew its authority from the region. The Kurdish parties established a local
government after the election in the area. Since then the Kurdistan Regional Government (KRG) ruled
though facing massive challenges including the economic embargo from the Government in Baghdad. Afterthe 2002 and the topple of the dictator regime in Baghdad KRG has been recognized officially and Iraq is
considered according to its new constitution a federal country. The serration between Kurdistan Region
and the Central Government of Baghdad led to different level of development and slightly different legal
system. Though the leading parties in Kurdistan are consisting an important component of the governmentof Iraq, the relationship between the region and the centre is smooth. There was no relationship since1991 until 2002. Since 2002 though there is high level of co-operation and political relationship there is no
administrative avenue between the institutions in the region and those in Baghdad.
In Iraq most of the types and cases of corruption can be found. Iraq was ruled by a dictator with strong
influence from his clan and political party. The handful of people with strong influence and holding the key
institutions in the society determined the level of production, flow of resources, its distribution, welfare andpriorities of the society. In addition they neglected easily the laws and regulation in the absence of minimum
levels of public sector transparency and accountability.
The sources of income for the state have had been limited to few including: revenues from Oil and Gas,
tariffs, income from fees charged for automobile registration and housing constructions, and limited revenues
from provision of public utilities to the households. Thus, corruption and abuse of power was a result ofpolitical institutions and government policy that was strongly rooted in the public institutions with major
impacts on every aspect of the life of the citizens.
In the aftermath of the American invasion and the toppling of the dictatorship, the country worsenedamong the developing and transitional countries as ranked by their levels of corruption. The Transparency
International Corruption perception index score that ranges from ten (squeaky clean) to zero (highly
corrupt) puts Iraq at the end of its index. According to this index Iraq ranked 1.9 in 2006, the country
number 160 among 163 countries. It ranked 1.5 in 2007, the country number 178 among 180 countries. And
it ranked 1.3 in 2008, the country number 178 among 180 countries.
According to various professional journalists’ and NGOs’ reports, corruption in Iraq remains untouchable
and it is protected by senior Iraqi government members. On the other hand the anti-corruption entities
are affected by the political environment and the Shiite/Sunni division of the government which makes
combating corruption in Iraq more difficult. Each side tries to protect its alliance, though they are corrupt,that of course happens through intervention in the work of the anti-corruption entities.
Iraqi society is a society where religion plays a great role in the people’s life. However many whopractice religion seriously never come across other people’s belongings and do not have any conscience
when it comes to the public domain. Though a legal and governing system is vital for combating
corruption, the way corruption has been judged socially is worthly of study and research. The sense ofshared responsibility plays a role in determination of some types of corruption. There is a lack of sense of
responsibility in the Iraqi society. People are aware of corruption as serious threat to their lives; however,they rarely contribute to any efforts to fight corruption.
The United Nations Convention against Corruption is the first legally binding international anti-corruption

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instrument available. It provides a unique opportunity for mounting a global response to corruption. Iraq has
joint membership to the Convention since 17 March 2008.

IV. CORRUPTION OFFENCES IN THE IRAQI PENAL CODE
Corruption offences are set in chapter six of the Iraqi Criminal Code No. 111 of 1969 under the title(offences in breach of the duties of office). This chapter is divided into the following three sections.

A. Section One (Bribery)
Section one starts with Article (307) and ends with Article (314). It is penalizing different acts of bribes.
There are different penalties for taking or giving bribe or other roles played in the bribery action. The
punishment may reach ten years imprisonment in some cases. According to Article (314) “In addition to
the penalties stipulated in this section, an order for the confiscation of the gift received by or offered to the
public officials or agents will be issued”.
B. Section Two (Embezzlement)
Section two of this chapter is dealing with any action of embezzlement. Articles 315 to 321 of the code,
set penalties for different cases of embezzlement. The punishment rang between fine and life imprisonment
according to the circumstances of the embezzlement case. Similarly in the cases of embezzlement theoffender shall be ordered to make restitution for the funds he has embezzled or appropriated for him or forthe value of the benefits or gain which he has obtained of course in addition to the penalties stipulated in thiscode.
C. Section Three (Officials Who Overstep the Bounds of Their Duty)
The third section includes Articles 322 to 341 is concerning “officials who overstep the bounds of theirduty”. Any act of public officials includes abuse and misuse of the public authority is punishable according tothis chapter. For example arresting people in circumstances stipulated by the law or engaging slave labour inactivities unconnected with the legally or constitutionally recognized public interest are punishable. Article
330 deals with well-known “WASTA” problem in the Iraqi society. It sets “Any public officials or agents who
unlawfully refrains from executing the duties of his office or wilfully fails to fulfil his duties in response to arequest or instruction or to mediation by another or for any unlawful reason is punishable by detention”.
Some of the cases of this chapter, like Article 334, sets that there shall be an order to make restitution
for the property that has been appropriated or its value if it has no substance in addition to the compensation
if necessary of any person who has suffered harm as a result of the offences. Of course there is always theright to ask for compensation in all the criminal cases according to the general principles.
It is obvious that there is a rapid development in the area of corruption and related cross border crimes.
In parallel there is an active legal response in the international level and in the national law around the world
to deal with corruption. However, Iraqi penal code is the same since 1969. The developed international legal
standards related to combating corruption are not reflected in the Iraqi laws satisfactorily.

V. TRANSPARENCY MONITORING RELATED ENTITIESThere is a kind of monitoring according to the administrational hierarchy in all the public offices. So
mangers in any public office may and even should use their authorities to monitor the transparency in theoffice. However there are offices are specialized and deal directly with the mission of fighting corruption.
Following is a discussion about these entities.

A. Board of Supreme Audit (BSA)The Iraqi Board of Supreme Audit has been established according to Law No. (17) 1927. Since then it
witnessed various development phases to fill the existing gaps that has been emerged through application of
the law or in response to the dramatically political changes in the country. Since 1990 the Audit is regulatedby the Board of Supreme Audit law. According to Article 6 of the law the Board’s primary tasks are to set
the roles, specify duties, and specialties of the Board of Supreme Audit and enhancing its role to participate
in improving the performance of the state’s institutes. The law sets the role to enable this board to secure

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the auditing requirement and its needs of resources, human capital, and information whether to express
an opinion about the truth of the financial situations and the activities or to evaluate the structures that goalong with the phases of the development of the national economy. Finally the law gives sufficient flexibility
to the Board in planning and assigning duties and specialties.
The way the board functions aims to secure the required central supervision. That helps to direct controlling
tasks and development bases principles, means and ways of implementation and assessment the results are
required. In addition in order to enable the law one needs to enable the board to cover all the services andinstitutions of the state in the governorate with auditing and supervision with the highest level of competence
and efficiency.
The Board of Supreme Audit works as part of the ministry of finance and it has no independent legal
personality. It plays a role in combating corruption and following the performance of various levels ofgovernment but it has no such broad authorities as the Integrity Commission have as we will see next.
In should be noted that the Iraqi Board of Supreme Audit has no control over the Kurdistan Region which
has it is own Board of Supreme Audit and it follow similar techniques and roles in order to enhance theperformance of the Kurdistan Regional Government.

B. Inspector General Office (IGO)
This office is another new experience to Iraq. It is established according to order No. 57 in 2004. The majortask of this office is to evaluate the performance of public service within by the officer with the ministries. In
performing its mission the office has access to any documents in the ministry. It also supervises and reports
the conduct of civil servant. It might conduct investigations and it has the authority to refer the result ofsuch investigation to the Commission of Public Integrity. Again the Inspector General Office has no control
over Kurdistan Region and there is no such experience for monitoring the conduct of civil servant in theadministrational institutions.
C. The Commission of Public Integrity (CPI)
Iraqi Commission of Public Integrity is one of the institutional mechanisms specialized in combating
corruption in the country. It is an independent, public, integrity and combating corruption entity. It was set up
in Iraq under the name of the Office of Public Integrity. The Commission was established under the formal lawof the Iraqi Governing Council and in accordance with the authorization granted by the Coalition Provisional
Authority dissolved matter (55 of 2004). The Commission was established in accordance with the Articles (6)and (36) of the United Nations Convention against Corruption in 2003.
According to the Iraqi constitution of 2005, the Integrity Commission is one of the independent bodies.
It is subject to the control by the House of Representatives. Article (102) of the Constitution sets “HighCommission for Human Rights, the Independent High Electoral Commission, and the Integrity Commission
are independent bodies which operate under the control of the parliament, and its actions organise according
to a law”.
The independence of the Commission and that it does not follow any branch of the executive gives
the Commission crucial importance. This makes the Commission different from the Board of Audit. The
Commission has the legal power to and the freedom to watch, investigate, compel any official no matter
how high ranked they were. However, in practice the political atmosphere might affect the work of theCommission.
As mentioned previously, the Integrity Commission aims to prevent and to combat corruption and it has
the legal means to achieve such goal. To perform its goal the commission activities are divided into twoareas:
The first area is legal and is implemented through four mechanisms:1.

The investigation of corruption cases by the investigator under the supervision of specialized criminal
investigation judges. The specialty here is according to the area where the crime occurs.

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2.

Preparing legislation proposals in the field of combating corruption and development of a culture ofprobity, integrity, transparency, accountability and acceptance of interrogation, equality and justice.

3.

Compel Iraqi leaders to disclose their assets and financial interests.

4.

Issuing a code of conduct in the field of public sector employment. Such code sets the standards ofthe ethical conduct in the field of public service.

The second area – education and media, operates through:1.

Curriculum development to promote ethical conduct in the public services in cooperation with the
Ministry of Education and Ministry of Higher Education.

2.

Preparation of studies and research.

3.

Training.

4.

Media campaigns and outreach activity through media.

5.

Organization of seminars.

6.

Any action in the field of raising awareness and training of public sector employees and the public tostrengthen the calls for transparent and accountable government and public institutions subject tointerrogation.

The law gives the commission a great power. In relation to the Commission’s authority Section (3) of the Act
attached to the Law No. (55) of 2004 “For achieving its goals the commission is allowed to take any necessary
actions”. The term is flexible and gives the Commission a wide scope of authority. It has no determination inaction in order to achieve its goals.
Accordingly the commission acts through six offices or directorates to carry out the goals mentioned in
the law:
1.

Investigation office.

2.

Legal affairs office.

3.

Prevention office.

4.

Education and public service office.

5.

Relations with non-governmental organization office.

6.

Administrative office.

The Commission is headed by an official in the rank of minister being appointed by the prime minister.
Only the House of Representatives has the authority to remove the chief of the Commission. The procedureis the same as the procedure followed in the case of dismissal of ministers.
CPI’s mission is reinforced by the Bored of Supreme Audit (BSA) and the Inspector General Office (IGO)
within each Ministry. The BSA serves as Iraq’s oversight auditing institution; Whilst IGOs conduct factfindings investigations, audits and performance reviews within the minister and report cases of suspectedcriminal conduct involving corruption to CPI for review and appropriate action.
The Integrity Commission has no control over the Kurdistan Regional Government. There is no suchcommission in the region. Recently there are many calls in the media for the establishment of a similarcommission in the region where the corruption is publicly being discussed in public and private places butwith no effective practical measures or official will for combating it.

D. The Public Prosecution officeAccording to the Iraqi Public Prosecution Law No. (159) of 1979, the prosecutor’s office plays a vital rolein protecting public property. For that purpose it has a wide range of authorities. The public prosecutor office
can ask for the initiative of investigation of public rights. Also it can play according to the law an active rolein monitoring investigations, collection of evidence and monitor all the decisions made by the investigative
judge and the decisions made in all stages of investigation and trail procedures. The investigation judge has
the authority to conduct investigation in cases referred to by the police as well as to initiate investigation by

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themselves. The public prosecutor may refer a case to the investigation judge. In all cases the decision ismade by the judge. The public prosecutor has to be informed about each single decision in the case and s/he
has the authority to appeal any of these decisions.
The legal authority given to the public prosecutor is not applicable or it is not applied in practice easily.
There is a limited role played by the public prosecutor office in raising corruption related cases by itself.
That has to do mostly with the inactive role of the office. Undoubtedly, the case that been brought to theoffice has to be followed and the office usually plays a role in taking the needed legal measures according
to the law to deal with them. However, it is not popular that the public prosecutor office watches theperformance of public service to monitor the public prosperity which has been mentioned in the publicprosecutor law.
According to the public prosecutor law the public prosecutor plays a vital role in detection, investigation,prosecution, adjudication punishment of offence. The same role is true for the corruption offences.
Nevertheless, the role of public prosecution office is a negative role according to the law. In practice thepersonality of the public prosecutor him or herself plays a great role in activating such vague code.
In general the public prosecutor does not play a proactive role in combating corruption. In practicethe investigation is been lead by the judge. The public prosecutor has to be informed by about the judge’s
decisions. If the public prosecutor found any of these decisions in disagreement with the law he or she canappeal the decision. So the public prosecutor is aware of the procedures of the legal cases and can follow andask the judge for taking any needed decision according.
So the public prosecution office is not a special corruption fighting entity but it can play a role in fighting
corruption. Its role in a corruption case is not any different than its role in any other crime. A bribe is thesame as a murder in relation to the role of public prosecution office. The judge leads the investigation andtakes decision at the end of it. The public prosecution office monitors the process and has the right to appeal
in any stage of decision making.

E. The Judiciary Supervision Commission
The judiciary Supervision is not one of the agencies that specialized in fight against corruption; however
it plays a vital role in this area. Judges and public prosecutors in fulfilment of their duty have to be under
special kind of supervision. The Commission is consist of experienced judges and public prosecutors tomonitor the conduct of judges and public prosecutor and their fulfilment of the duty.
The Judiciary supervision works through its irregular visits to the courts and public prosecutor offices.
In these visits the judges or the public prosecutor from the commission follow the daily work in the court
and public prosecutor office. The reports written as a result of these visits, whether positive or negative areimportant and reliable for promotion or delay of promotion of the judge or public prosecutor according to thecase

VI. THE ROLE OF THE MEDIA
The media can play a great role in combating corruption. The space of freedom expression has been usedin Iraq recently in accusation of high ranks official and other levels of officials in Iraq and Kurdistan region
involvement in corruption. It is not always the case that reports concerning corruption and accusing of
officials are true or based on evident. Often such accusations are related to political disagreement or for the
purpose of gaining personal interests by certain politicians or their political parties. That strongest effectwhich an independent media can play is in enhancing public awareness and serving as a monitoring measure.
However, some cases have been brought to the court by a journalist report.
Public sector in its capacity as the main employer and provider of services is a main source of corruption
through financing and implementation of public projects. The combination of public-private-politics is the rootof the problem. Public finances and provision of services is decided by politics who own business. Unless thesethree-party alliances are separated it will be hard to fight against corruption in an effective way. In a recent caseof abusing public property a case law brought to my court and accordingly the investigation started. The case is169

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an important case related to a preservation of a historical site and its alleged embezzlement.
Media can also play a role in building trust in the Judiciary and other entities that specialized in fighting
against corruption. Raising awareness about how these entities conduct its mission. It is also crucial for
greater role to these entities to simplify and publicised how people can contact and inform these entities
about corruption cases. In addition it is very important to inform the public of the successful corruption
cases which establish for confident in the government.

VII. SUMMARY AND CONCLUSIONS
Iraq is a country suffering seriously from the vast negative impact of wide spread corruption on the
country’s ability to reconstruction and development. There is a crucial need for a comprehensive approachto development. Implementation and evaluation of an anti-corruption approach covering all sectors of
the society from the central government to the individual being involved at every stage is necessary. It
implies inclusion of international community, international aid agencies and local NGOs, individuals, media,
governments, public and private institutions.
Because of the dictatorship and decades of war, destruction and sanctions, the country is experiencing
massive psychological, social, political and economical complexities and irregularities. It makes combating
corruption much more difficult. Organization of the World Transparency indexed Iraq as one of the mostcorrupt countries. This makes the task of combating corruption in a critical stage of reconciliation,
reorganization, reconstruction and development rather tough work.
The new era after the fall of the dictatorship heralded dramatic changes in the country. It led to the fallof the whole system and all kinds of difficulties, in particular ethnic conflict and internal security difficulties
rise at different levels in the society. On the other hand a kind of democratic experiences accrued. The
freedom of media was a new experience and plays a role in public awareness about corruption. However
the negative side of such freedom is that it is practiced with no responsibility. In many cases the media
accuse officials without having any evidence against them and that might be for political purpose. That led toinjustice when such reports cause damages for innocent people.
The second newly established organization in the country is the Integrity Commission. The Commission
is publicly well known though it has been working since few years ago. It is a new experience to the Iraqi
society. It is particularly new in that the Iraqi leaders and high rank officials have to disclose their financial
assets. That is a positive tool that helps the Commission to implement its goals in fighting corruption. It
also has other important benefits for the officials themselves when it will prevent accusing them by otherpolitical parties or civil society.
The role which possibly can be played by the public prosecutor office is not effective in its application.
The public prosecution law gives wide authority to the public prosecutor office in protecting publicprosperity and in combating corruption as part of such task. Nevertheless the law is vague. In addition inpractice the role is not that active. The other challenge that faces the criminal justice is the slow procedure
which hinders a powerful investigation and evidence collections.

A. The Challenges
Some of the Challenges that face the fight against corruption are related to the nature of corruption
in general, and others related to Iraq and its political, social and legal situation. Below are some of thesechallenges and accordingly some suggestions to enhance the general situation in the country as a whole:
1. Security;
2. Lack of data and systematic research to shed lights on problem and possible solutions;3. The need to update the existing laws to reflect general development in and outside the society;
4. The gap between the existed laws which are sometimes sufficient and their actual application which
is done often by neglecting the laws need to be diminished. In another word the absence of the basic
principle of role of law is a major challenge;
5. The mass of public servants in the different government organs that help the corrupt people to slip
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6.

Lack of specialized people in all the governmental organs that secure transparency in the country;

7.

Article 136 (b) of the criminal procedure law which gives the ministry the authority to block any case.
Although the law contemplated the application after the investigation judge finishing investigation, theArticle has been used by the current regime to stop investigation prior to the decision made by theinvestigation judge;

8.

The negative role of the public prosecutor office;9.

The absence of effective banking system allow economics of crime to blooming and the judiciary
system is unable to trace illegalities in the banking system;

10. Lack of skill in the public prosecutor office and judiciary system is another manpower problem facing
the system;
11. Delay in investigation is a common cause of incapacity to handle the situation effectively. Some cases
stay in the court for years and the general public and the administration lose incentive and interest;
12. Lack of funding and resources is another problem to build up capacity to face the problem;
13. The usual challenge is associated with fighting against corruption related to its hidden nature andhigh rank people involvement;
14. People are cynical about the government and there is a belief that bribery and all sorts of corruption
are inevitable. This undermines the rule of law and its legitimacy. As a result there is no effort in thedownstream level to combat corruption.

B. Suggestions
The issue of corruption has been discussed sporadically in the media. Its extent is however widespreadand both general public and non-governmental organizations feel unable to impact the public sector whichis the main nest of it to be willing to tackle it in an effective way. Despite the lack of interest, means andeffective channels there has to be both a long term and a short term plans to fight corruption such as:
1. Supporting the independence of judiciary as the most active anti corruption mean in the society;2. Specialized anti-corruption research centres should be established;
3. Data to be collected systematically and used in research analyzing economics of crime;
4. Training and skill building of manpower at the national and regional level be conducted;
5. Strengthening the independency of transparency monitoring entities to enhance our knowledge about
the actual conditions in the public sector;
6. Legal reform, for example Article 136 (b) regarding ministerial consent for a case to be adjudicatingexclusion;
7. Giving the public prosecutor’s office a more proactive role in exercising their duties and working
with individuals case without unauthorized interventions;
8. Benefit from international experiences;
9. Engaging individuals and civil society in the fight against corruption to build a transparent culture in
the society at the grass root level;
10. Guaranteeing that media have the freedom to receive and publish information on corruption cases
and their follow ups;
11. Introduction of laws reducing intervention of political parties in governance, and separation or
private businesses and public decisions.

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