International Journal of Transitional Justice, 2014, 0, 1–19

doi: 10.1093/ijtj/iju022
Article

Truth Commissions and Anti-Corruption:

Towards a Complementary Framework?
Isabel Robinson*

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ABSTRACT1
This article examines the extent to which transitional justice should address corruption
in terms of both theory and practice. Examining the Kenyan Truth, Justice and
Reconciliation Commission and the Tunisian Truth and Dignity Commission, the au-
thor highlights the important role of truth commissions in shaping the public narrative
so as to reflect the devastating impact of corruption on human rights. However, given
the inherent limitations of truth-telling and truth-seeking processes, combined with the
coexistence of the anti-corruption ‘industry,’ it is essential to establish clear boundaries
and adopt an approach that complements, rather than duplicates, parallel processes.
K E Y W O R D S : corruption, human rights, Kenya, Tunisia, truth commissions

I N TRO D UC T IO N
Demands for justice in the wake of the Arab Spring have propelled a number of chal-
lenging issues to the forefront of transitional justice debates, not least the question of
large-scale corruption by members of former regimes. In Egypt and Tunisia, em-
bezzlement of public funds by corrupt officials played a key role in triggering the
revolutions, and accountability for these crimes has been a primary focus during the
transition.2 In other contexts, corruption impedes human development, facilitates il-
licit exploitation of natural resources and helps to sustain war economies that fuel
conflict. Thus, it is unsurprising that justice for corruption is emerging as a priority
in the ‘window of opportunity’ presented by a transition from conflict to peace and/
or from a repressive regime to democracy. Given the complexities of this broad phe-
nomenon, however, it is also unsurprising that crafting an appropriate response to
corruption in transitioning societies poses serious challenges. This article will examine
some of these challenges with reference to the work of two truth commissions expli-
citly mandated to address corruption, the Kenyan Truth, Justice and Reconciliation

* Geneva Academy of International Humanitarian Law and Human Rights, Geneva, Switzerland. Email:
isabel.robinson3@gmail.com
1 The author would like to thank Prof. Frank Haldemann and Thomas Unger for their invaluable comments
and support, particularly through the Geneva Academy Transitional Justice Working Paper Series.
2 Reem Abou-El-Fadl, ‘Beyond Conventional Transitional Justice: Egypt’s 2011 Revolution and the Absence
of Political Will,’ International Journal of Transitional Justice 6(2) (2012): 318–330; Office of the High
Commissioner for Human Rights, Report of the OHCHR Assessment Mission to Tunisia, 26 January–2
February 2011 (2011).

C The Author (2014). Published by Oxford University Press. All rights reserved.
V
For Permissions, please email journals.permissions@oup.com

 1
2  I. Robinson

Commission (TJRC), which published its final report in May 2013, and the Tunisian
Truth and Dignity Commission (TDC), which was launched in June 2014.
Although a universal definition does not exist, corruption can be understood
broadly as ‘abuses of the public interest by narrow sectional interests.’3 This defin-
ition encompasses the conduct of both state and nonstate actors and includes prac-
tices such as embezzlement of state resources or foreign aid, nepotism in awarding
public contracts, bribery of state officials and solicitation of bribes by public officials.4
Each of these acts can be framed as an isolated crime; however, corruption can also

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be understood as a systematic and structurally entrenched phenomenon that affects
all social interactions.5 In this regard, it is important to distinguish between high-level
or ‘grand’ corruption, involving appropriation of large sums of money by heads of
state and senior officials,6 and low-level corruption – also referred to as ‘administra-
tive’ or ‘petty’ corruption – which takes place ‘at the implementation end of politics,
where citizens meet public officials.’7
The relationship between transitional justice and corruption is conceptually chal-
lenging as it raises complex questions about the normative foundation of transitional
justice: what is it, what was it, and what can and should it be? On the one hand, there
is growing groundswell for a thicker theory of justice that incorporates ‘economic
violence,’ including violations of economic and social rights, corruption and plunder
of natural resources.8 On the other hand, there is a clear risk of overstretching transi-
tional justice and diluting its core goals. In addition, it is important to consider
whether transitional justice processes can deal adequately with corruption, and what
may be at stake if they fail. Is there a need for new and creative transitional justices
processes, or are there alternative forums in which corruption can be more ad-
equately addressed? Can transitional justice mechanisms contribute an additional
perspective above and beyond anti-corruption efforts, and how can this occur in a
way that complements and reinforces conventional anti-corruption institutions?
Although truth commissions are by no means the only avenue for examining cor-
ruption from a transitional justice perspective, the recent experiences in Tunisia and
Kenya indicate that truth telling and truth seeking may have an important role to
play. In particular, truth commissions may help to shape the public narrative about
past abuse by highlighting the links between corruption and human rights violations.
In examining the role of truth commissions vis-à-vis corruption, the article is struc-
tured in three sections. The first section presents a review of the literature on transi-
tional justice and corruption, taking into account the backdrop of broader arguments

3 Philippe Le Billon, ‘Corrupting Peace? Peacebuilding and Post-Conflict Corruption,’ International

Peacekeeping 15(3) (2008): 355.
4 The UN Convention against Corruption does not define corruption but describes these acts, among
others, as constituting corruption.
5 Michael Johnston, ‘Fighting Systemic Corruption: Social Foundations for Institutional Reform,’ European
Journal of Development Research 10(1) (1998): 85–104.
6 Julio B. Terracino, The International Legal Framework against Corruption: States’ Obligations to Prevent and
Repress Corruption (Cambridge: Intersentia, 2012).
7 Martine Boersma, Corruption: A Violation of Human Rights and a Crime under International Law?
(Cambridge: Intersentia, 2012), 30.
8 Dustin N. Sharp, ‘Introduction: Addressing Economic Violence in Times of Transition,’ in Justice and
Economic Violence in Transition, ed. Dustin N. Sharp (New York: Springer, 2014).
 Truth Commissions and Anti-Corruption  3

associated with transitional justice and economic violence. The second section exam-
ines the truth commissions in Kenya and Tunisia, including the approach of the
TJRC in framing corruption as a human rights violation, and the contrasting ap-
proach of the TDC in arbitrating individual cases of corruption. The third section
sets out the boundaries of a complementary framework, whereby truth commissions
that address corruption can complement rather than duplicate the work of conven-
tional anti-corruption bodies.

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CO RR UPT IO N T HR OU GH TH E LE NS O F TRA N S IT IO NA L J US TI C E:
C O N C E P T U A L A N D P R A C TI CA L I MP LI C A T IO N S
Three major lines of argument have been advanced to support a broader theory of
transitional justice that encompasses corruption where appropriate. First, a range of
arguments stems from the inherent connections between corruption and human
rights violations. Second, scholars have examined the importance of addressing cor-
ruption in order to rebuild civic trust in the state. Third, where corruption is linked
to structural inequality, it forms part of the broader claim that failure to address eco-
nomic violence may undermine positive peace.

Connecting Corruption and Human Rights

Corruption is inherently linked to human rights violations, either as a root cause of
such violations or as a condition that allows human rights violations to occur with
impunity. At an everyday level, access to social services can be blocked by the ‘corro-
sive, daily culture of truly petty corruption.’9 In addition, systematic corruption
in public institutions can facilitate patterns of human rights violations by creating a
climate that ‘allows or even fuels such abuses.’10
Likewise, at the level of grand corruption, embezzlement diverts resources away
from the provision of state services, undermining a state’s ability to respect, protect
and fulfil human rights. Indeed, the World Bank estimates that the value of stolen
assets held by banks in developed countries is around $20–40 billion per year, ap-
proximately 20 percent of international financial assistance.11 Grand corruption can
also assist perpetrators of large-scale human rights violations in sustaining and con-
solidating their control:12 money buys power, which enables further repression.
Finally, corruption has been identified as a cause of conflict, contributing to the out-
break of periods of violence in which human rights violations are widespread.13
Based on the links between corruption and human rights, several scholars have
argued for a more holistic approach to transitional justice that addresses corruption
in terms of accountability and truth telling. According to Ruben Carranza, failure to

9 Marella Buckley, ‘Anti Corruption Initiatives and Human Rights: The Potentials,’ in Human Rights and
Good Governance: Building Bridges, ed. Hans-Otto Sano, Gudmundur Alfredsson and Robin Clapp
(Leiden: Brill, 2002), 181.
10 Chris Albin-Lackey, ‘Corruption, Human Rights and Activism: Useful Connections and Their Limits,’ in
Justice and Economic Violence in Transition, ed. Dustin N. Sharp (New York: Springer, 2014), 143.
11 World Bank, Stolen Asset Recovery (StAR) Initiative: Challenges, Opportunities, and Action Plan (2007).
12 Ruben Carranza, ‘Plunder and Pain: Should Transitional Justice Engage with Corruption and Economic
Crimes,’ International Journal of Transitional Justice 2(3) (2008): 310–330.
13 See, Sierra Leone Truth and Reconciliation Commission, Witness to the Truth, vol. 2 (2004), chap. 2.
4  I. Robinson

hold state officials responsible for large-scale corruption and economic crimes creates
an impunity gap, ‘leaving accountability for economic crimes to ineffective domestic
institutions or to a still evolving international legal system that deals with corruption.’14
In addition, Carranza argues that perpetrators of gross human rights violations may
use the profits of corruption to obstruct prosecutions, thus creating ‘mutually reinforc-
ing impunity.’15 Similarly, Zinaida Miller argues that the invisibility of economic vio-
lence in transitional justice creates a one-dimensional narrative of conflict.16
Beyond the transitional justice paradigm, synergies between corruption and

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human rights are increasingly receiving attention from major human rights nongo-
vernmental organizations (NGOs), activists and scholars, treaty bodies and the
Human Rights Council.17 According to Chris Albin-Lackey, grand corruption by
public officials creates an important entry point for more sophisticated work on eco-
nomic, social and cultural (ESC) rights,18 because corruption often gives rise to situ-
ations ‘where it is the easiest to perceive a clear state violation of the obligation to
progressively realise ESC rights.’19 Likewise, anti-corruption campaigners have found
that drawing a link between corruption and human rights provides a powerful way of
emphasizing the impact of corruption in human terms.20

Corruption and Civic Trust

Addressing corruption through transitional justice processes may also contribute to
the long-term goal of transitional justice, to (re)build civic trust in the state and state
institutions. According to Pablo de Greiff, trusting an institution means acting on the
‘assumption that the institution’s constituent norms are shared by those who run and
participate in the institution.’21 Although the effect of corruption on civic trust is dif-
ficult to measure, empirical studies carried out in several contexts have concluded
that corruption has an erosive effect vis-à-vis the state and state institutions. For ex-
ample, in a study focusing on Latin America, James Cavallaro and Sebastián Albuja
conclude that public opinion strongly rejects grand corruption and embezzlement,
and that corruption erodes trust in public institutions.22

14 Carranza, supra n 12 at 310.

15 Ibid., 314.
16 Zinaida Miller, ‘Effects of Invisibility: In Search of the “Economic” in Transitional Justice,’ International
Journal of Transitional Justice 2(3) (2008): 266–291.
17 See, e.g., ‘Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the
Covenant,’ UN Doc. E/C.12/KEN/CO/1 (1 December 2008); ‘Summary Report of the Human Rights
Council Panel Discussion on the Negative Impact of Corruption on the Enjoyment of Human Rights,’
UN Doc. A/HRC/23/26 (18 April 2013).
18 Albin-Lackey, supra n 10 at 144–150.
19 Ibid., 147.
20 Ibid., 144.
21 Pablo de Greiff, ‘Articulating the Links between Transitional Justice and Development: Justice and Social
Integration,’ in Transitional Justice and Development: Making Connections, ed. Pablo de Greiff and Roger
Duthie (New York: Social Sciences Research Council, 2009), 58.
22 James L. Cavallaro and Sebastian Alubja, ‘The Lost Agenda: Economic Crimes and Truth Commissions
in Latin America and Beyond,’ in Transitional Justice from Below: Grassroots Activism and the Struggle for
Change, ed. Kieran McEvoy and Lorna McGregor (Oxford: Hart Publishing, 2008). See also, Mitchell A.
Seligson, ‘The Impact of Corruption on Regime Legitimacy: A Comparative Study of Four Latin
American Countries,’ Journal of Politics 64(2) (2002): 408–433.
 Truth Commissions and Anti-Corruption  5

On this basis, it has been argued that addressing corruption through transitional
justice may contribute to the process of reestablishing civic trust. Indeed, Kora
Andrieu argues that exposing the truth about corruption can help to delegitimize the
previous regime, consolidate democratic norms and values and increase trust be-
tween citizens and institutions.23 Further, transitional justice can make an indirect
contribution to anti-corruption efforts by

re-creating a space where the notion of public good has a meaning and where

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individuals can communicate and attempt to persuade one another through ar-
gumentation and criticism about matters of general concern.24

There is little empirical evidence to support this claim, primarily because of the re-
markable lack of data and the difficulty in measuring the long-term success of transi-
tional justice processes. However, insofar as transitional justice processes seek to
consolidate civic trust in the new regime, exposing the truth about high-level corrup-
tion may contribute to this goal.

Economic Violence and Peacebuilding

The question of whether transitional justice should address corruption is part of a
wider discussion regarding economic violence, understood in a broader sense also to
include issues of structural violence and distributive justice. Since 2002, a number of
scholars and practitioners have argued that failure to address distributive justice will
jeopardize efforts to achieve positive peace, and inevitably lead to further violence.25
For example, Rama Mani advocates for a thicker theory of transformative or repara-
tive justice, which seeks to give real meaning to the goal of preventing further human
rights violations. Similarly, Dustin Sharp argues that transitional justice should be
reorientated from its originally narrow conceptual foundations to a ‘broader transi-
tion to positive peace, in which justice for both physical and economic violence re-
ceives equal pride of place.’26 Even the UN secretary-general has taken up the
discussion, acknowledging that ‘festering grievances based on violations of economic
and social rights are increasingly recognized for their potential to spark violent
conflict.’27
The primary argument against such a broad expansion of transitional justice the-
ory and practice is that existing processes are functionally incapable of addressing
structural dilemmas such as poverty and inequality. According to Lars Waldorf, ‘tran-
sitional justice is inherently short-term, legalistic and corrective’ and is neither func-
tionally nor practically suited to addressing ‘historically constructed socio-economic

23 See, Kora Andrieu, ‘Dealing With a “New” Grievance: Should Anticorruption Be Part of the Transitional
Justice Agenda?’ Journal of Human Rights 11 (2012): 537–557.
24 Ibid., 553.
25 Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War (Cambridge: Polity Press, 2002).
26 Dustin Sharp, ‘Addressing Economic Violence in Times of Transition: Toward a Positive-Peace Paradigm
for Transitional Justice,’ Fordham International Law Journal 35 (2012): 784.
27 ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary
General,’ UN Doc. S/2011/634 (12 October 2011).
6  I. Robinson

inequalities.’28 Further, it has been argued that a violations approach does not easily
lend itself to remedying structural inequalities and exclusions.29 In this regard, de
Greiff has warned against an approach that conflates transitional justice with develop-
ment.30 Thus, Roger Duthie argues that the most significant impact that transitional
justice can have vis-à-vis economic violence is to help shape ‘the broader narrative in
public discourse, which may have a long-term impact on development.’31
In addition, several scholars have voiced concern about the risk of overburdening
transitional justice processes, particularly in light of financial and human resources

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constraints, as well as the reality that most truth commissions and prosecution initia-
tives already struggle with their mandates.32 Also, there is concern that addressing
corruption may shift attention away from gross human rights violations.33 Both of
these concerns are valid, however they must be balanced in each particular context
against the added value of obtaining a deeper understanding of why and how the
human rights violations took place. In addition, addressing corruption may have fi-
nancial benefits if recovered stolen funds can be used to alleviate some of the finan-
cial challenges facing transitional justice processes.34 For example, in Peru, funds
recovered from former President Alberto Fujimori were placed in a fund and used
for both anti-corruption and truth-seeking measures.35

Power of the Purse: An Increased Risk of Spoilers?

Perhaps the most serious challenge facing transitional justice processes seeking to ad-
dress corruption is that ‘powerful economic elites’ may attempt to derail or under-
mine the process.36 Indeed, members of the new regime who have been implicated
in corruption prior to or during the transition may seek to undermine the process to
protect their own economic or political interests. Additional risks may arise from na-
tional and/or international corporations and other complicit beneficiary groups, such
as states, development banks and international organizations. Andrieu argues that in
order to contain political crisis human rights violations and corruption should be
dealt with separately. Accordingly, she suggests an anti-corruption commission run
by financial experts with competence to refer cases for criminal prosecution, but
which would also integrate a victim-centred approach.37 This proposal strikes a

28 Lars Waldorf, ‘Anticipating the Past: Transitional Justice and Socio-Economic Wrongs,’ Social and Legal
Studies 21 (2012): 171.
29 Priscilla Hayner, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions (New
York: Routledge, 2010).
30 De Greiff, supra n 21.
31 Roger Duthie, ‘Transitional Justice, Development and Economic Violence,’ in Justice and Economic
Violence in Transition, ed. Dustin N. Sharp (New York: Springer, 2014), 198.
32 Naomi Roht-Arriaza, ‘The New Landscape of Transitional Justice,’ in Transitional Justice in the Twenty-
First Century, ed. Naomi Roht-Arriaza and Javier Mariezcurrena (New York: Cambridge University Press,
2006).
33 Priscilla Hayner and Lydiah Bosire, Should Truth Commissions Address Economic Crimes? Considering the
Case of Kenya (New York: International Center for Transitional Justice, 2003).
34 Carranza, supra n 12.
35 Nelly Calderón Navarro, ‘Fighting Corruption: The Peruvian Experience,’ Journal of International
Criminal Justice 4 (2006): 488–509.
36 De Greiff, supra n 21 at 41.
37 Andrieu, supra n 23 at 549.
 Truth Commissions and Anti-Corruption  7

balance between ensuring that corruption is addressed and avoiding an increased risk
of spoilers. Yet, addressing corruption and human rights violations separately inevit-
ably means that the human impact of corruption will be lost and that the opportunity
to reshape the public narrative so as to reflect the links between corruption and
human rights will be missed.

Intermediate Conclusions
A snapshot of the key arguments indicates that addressing corruption within the

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transitional justice paradigm is a complex project from both a conceptual and a func-
tional perspective. For the most part, arguments in favour of addressing corruption
are embedded in critiques of a thin theory of transitional justice and subsequent pro-
posals for a thicker, more holistic understanding of justice. In contrast, the key objec-
tions relate to the inherent functional, financial and political limitations of currently
existing processes. Yet, due to the relatively scarce practice, there has been little
examination of how transitional justice processes have addressed corruption, and
even less analysis of the potential duplication and overlap between transitional justice
and anti-corruption processes. In moving beyond the theoretical debate towards a
more operational framework, it is thus helpful to examine the recent practice of truth
commissions.

T RU TH C OM MI S S IO NS A N D C ORR UP TIO N
Although truth commissions have not been the only transitional justice mechanisms
to begin incorporating corruption into their mandates,38 they provide a particularly
interesting forum for addressing corruption for a number of reasons. First, truth
commissions are able to investigate both the context in which human rights abuses
take place and patterns of violence and individual crimes. In this regard, they are an
important discursive tool and can play a role in shaping the public narrative about
past and ongoing abuses.39 Additionally, truth commissions combine truth-seeking
and truth-telling functions, creating public space in which victims can air grievances.
Finally, truth commissions often operate as a centrepiece of transitional justice strat-
egies, as they combine backward- and forward-looking goals, including identification
of reform priorities. At the same time, truth commissions are subject to a number of
key limitations that shape their ability to respond to corruption. Most important in
this regard, they rely on the leadership and integrity of their commissioners and are
vulnerable to a lack of political will, particularly regarding implementation of their
recommendations.

Kenya: The Truth, Justice and Reconciliation Commission

The TJRC was created in May 2008, following the post-election violence in
2007–2008 in which 1,133 people were killed, over 3,000 were injured and thou-
sands were displaced.40 It is one of the first truth commissions to have an explicit

38 Former members of the regimes in Tunisia and Egypt have been prosecuted for corruption.
39 Duthie, supra n 31 at 199.
40 Commission of Inquiry into Post-Election Violence, Report of the Commission of Inquiry into Post-Election
Violence (Nairobi: Government Printer, 2008).
8  I. Robinson

mandate to address corruption, along with economic marginalization and injustices

relating to land. In interpreting its mandate, the Commission adopted a unique
approach, particularly regarding its relationship with Kenya’s Ethics and Anti-
Corruption Commission (EACC) and the legal framework and methodology for ad-
dressing corruption. At the same time, the Commission faced numerous challenges,
including allegations that its chairperson was involved in the illegal acquisition of
land and political pressure to omit several paragraphs from its final report.

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Corruption as a Collective Social Grievance
In understanding the rationale behind the TJRC’s expansive mandate, it is important
to emphasize that corruption and economic crimes had previously been identified as
significant social grievances that should be publicly exposed. This is clear from the re-
port of the Task Force on the Establishment of a Truth, Justice and Reconciliation
Commission, which conducted consultations in 2003 across Kenya’s eight provinces.
In each province, there was significant demand for the future commission to address
‘corruption,’ ‘plunder of the economy,’ ‘economic crimes,’ ‘land grabbing’ and ‘abuse
of power and office.’41 Accordingly, the task force recommended that the truth com-
mission should investigate a narrow category of economic crimes, including those
that led to ESC rights violations or had a direct bearing on the enjoyment of ESC
rights.42
With its mandate to investigate corruption, the TJRC incorporated a bottom-up
approach to transitional justice, based on local understandings of justice and experi-
ences of past abuse. This is not rocket science, however it is particularly important to
highlight when the mainstreaming of transitional justice over the past decade has led
to the dominance of a top-down ‘toolbox’ of mechanisms, modelled off a dominant
international script. Although there have been calls for a bottom-up approach to
transitional justice,43 a more victim-centred approach requires processes ‘that arise as
a response to the explicit needs of victims, as defined by victims themselves.’44
Accordingly, corruption was identified by Kenyans as a crime that affected human
rights, and the mandate of the Commission was formulated so as to respond to this
demand.

The TJRC and the EACC

In achieving its goal of exposing ‘the profound cost the nation is paying through cor-
ruption,’ the TJRC clearly recognized that its role was ‘not to provide “the” solution
to the problem of corruption.’45 Accordingly, it identified the EACC as the appropri-
ate forum in which to tackle accountability and long-term prevention initiatives. The

41 Task Force on the Establishment of a Truth, Justice and Reconciliation Commission, Final Report
(August 2003), Annex II, 14.
42 Ibid., 32.
43 Patricia Lundy and Mark McGovern, ‘Whose Justice? Rethinking Transitional Justice from the Bottom
Up,’ Journal of Law and Society 35(2) (2008): 265–292.
44 Simon Robins, ‘Towards a Victim-Centred Transitional Justice: Understanding the Needs of Families of
the Disappeared in Post-Conflict Nepal,’ International Journal for Transitional Justice 5(1) (2011): 77.
45 Truth, Justice and Reconciliation Commission of Kenya (TJRC), Final Report, vol. 2b (May 2013), v.
 Truth Commissions and Anti-Corruption  9

EACC is a permanent anti-corruption commission that carries out both prevention

and accountability activities, including education, development of professional stand-
ards, receiving complaints, investigation, recommending prosecution and instituting
court proceedings to recover public property. For example, in 2012–2013, the
EACC completed 53 investigations and instituted 1,688 ongoing investigations.46
Thus, although the TJRC was mandated to ‘investigate economic crimes, including
grand corruption,’ it relied primarily on investigations already carried out by the
EACC, as well as previous independent commissions of inquiry. As a result, the

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Commission was not hampered by its lack of expertise or skills required to investi-
gate complex cases of high-level corruption. At the same time, the TJRC did not sim-
ply duplicate what had already been done by anti-corruption bodies. Rather, it
appears to have contributed an additional perspective lacking from anti-corruption
processes in Kenya by exposing the human cost of corruption.

The Legal Framework: Corruption as a Human Rights Violation

The primary contribution of the TJRC was to emphasize the impact of corruption
on human rights. In this regard, the Commission’s approach was twofold. On the
one hand, it examined and acknowledged the role of corruption in contributing to
various types of abuse, including forced evictions, economic marginalization and
post-election violence. On the other hand, it analysed corruption as a human rights
violation in and of itself. In relation to the latter, the TJRC adopted the approach of
Transparency International and the International Council on Human Rights Policy,
whereby corruption may in some circumstances constitute a direct, indirect or re-
mote violation of human rights.47 Unsurprisingly, this is a controversial approach
that has been criticized on the basis that ‘corruption is too large and sprawling a phe-
nomenon to be crammed entirely inside of a human rights analysis.’48 The approach
also has significant support, however, as it can empower victims of corruption as
rights holders, opening the door to a number of institutional possibilities within the
human rights framework.49
In applying this approach, the TJRC focused on low-level corruption, where there
is a direct causal relationship between the person committing a corrupt act and the
victim. Regarding civil and political rights, the TJRC noted that corruption may vio-
late the principles of equality and nondiscrimination, the right to political participa-
tion and the right to a fair trial and effective remedy.50 For example, bribery,
extortion and intimidation by police, prosecutors and judges may violate a suspect’s
right to presumption of innocence. In addition, solicitation of bribes on a

46 Ethics and Anti-Corruption Commission, Annual Report 2012–2013 (2013).

47 Transparency International and International Council on Human Rights Policy, Corruption and Human
Rights: Making the Connection (2009); Transparency International and International Council on Human
Rights Policy, Integrating Human Rights into the Anti-Corruption Agenda: Challenges, Possibilities and
Opportunities (2010).
48 Albin-Lackey, supra n 10 at 160.
49 Boersma, supra n 7; Gareth Sweeny, ‘Linking Acts of Corruption with Specific Human Rights’ (presenta-
tion to the European Parliament Subcommittee on Human Rights for the ‘Workshop on Corruption and
Human Rights in Third Countries,’ Brussels, Belgium, 28 February 2013).
50 TJRC, supra n 45.
10  I. Robinson

discriminatory basis violates the right to equality and nondiscrimination. This ana-
lysis conforms to the constitutive elements of a human rights violation, including
that the victims are prevented from exercising their rights and have thus suffered per-
sonal harm; the substantive, personal, territorial and temporal scope of the rights
apply; the state agent has breached the obligation to respect the rights in question;
and the conduct cannot be justified as a legitimate limitation.51
Regarding ESC rights, Appendix I of the TJRC’s final report lists various acts that
may constitute a violation of these rights, including bribery of an immigration or po-

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lice officer to allow the trafficking, sale or abduction of children as sex workers, or re-
questing bribes from hospital patients for treatment. In contrast to civil and political
rights, the report acknowledges that state obligations under the International
Covenant on Economic, Social and Cultural Rights are based on progressive realiza-
tion. However, the Commission failed to highlight that for corruption to constitute a
violation of ESC rights, the corrupt act would have to violate the immediate obliga-
tion of nondiscrimination,52 amount to deliberately retrogressive steps without a
valid justification based on limited resources53 or result in a direct violation of a
state’s minimum core obligations.54
In relation to high-level corruption, where there is more likely to be an indirect re-
lationship between the corrupt act and the victim, the TJRC’s approach was some-
what problematic. Although the Commission did not analyse specific instances of
grand corruption, the final report sets out the framework for indirect violations
(where corruption is a necessary condition) and remote violations (where corruption
is ‘one factor among many’).55 In effect, these concepts are simply alternative ways
of describing the impact of corruption on human rights. However, by employing the
language of ‘violation,’ this approach seeks to fit corruption neatly into a human
rights discourse. From the perspective of international human rights law, such an ap-
proach is unhelpful, as indirect and remote violations do not correspond with legal
claims. That said, grand corruption may still constitute a ‘direct’ human rights viola-
tion in specific circumstances, for example if a health minister embezzles aid money
or government funds earmarked for an infant vaccination programme. If the money
is deposited in an offshore bank account for personal use and the vaccination pro-
gramme never happens, this directly undermines the state’s minimum core obligation
and violates the right to primary healthcare of the affected individuals.
While the jurisprudence is limited, a similar approach has been tested before the
Economic Community of West African States Court of Justice by the Socio-
Economic Rights and Accountability Project (SERAP). In a 2010 case, SERAP
claimed that large-scale corruption in the Universal Basic Education Commission in
Nigeria constituted a violation of the right to education. The Court held that

51 Walter Kalin and Jorg Künzli, The Law of International Human Rights Protection (Oxford: Oxford
University Press, 2009).
52 See, ‘General Comment No. 20 of the Committee on Economic, Social and Cultural Rights: Non-
Discrimination in Economic, Social and Cultural Rights,’ UN Doc. E/C.12/GC/20 (2 July 2009).
53 ‘General Comment No. 3 of the Committee on Economic, Social and Cultural Rights: The Nature of
States Parties Obligations,’ UN Doc. E/1991/23(SUPP) (1 January 1991).
54 Ibid.
55 TJRC, supra n 45.
 Truth Commissions and Anti-Corruption  11

‘embezzling, stealing or even mismanagement of funds. . .does not amount to a de-

nial of the right to education, without more.’56 However, it acknowledged that cor-
ruption had a negative impact on the right to free, quality and compulsory education
and thus ordered the government to substitute the stolen funds while steps were
taken to recover the money or prosecute those responsible.

Repairing Harm Caused by Corruption: Practical,

Legal and Ethical Dilemmas

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Framing corruption as a human rights violation necessarily gives rise to the right to
an effective remedy, which includes a right to reparation.57 Yet, from both legal and
practical perspectives, awarding reparations to victims of corruption poses significant
challenges. For this reason, it is unsurprising that the TJRC recommendations on
reparations do not refer to victims of corruption, other than to recommend that
‘assets recovered through corruption proceedings of the EACC and the Kenyan
Courts are used to fund the reparations process.’58
In terms of the legal implications, it is again helpful to consider low-level and
high-level corruption separately due to the distinct causal connections between the
perpetrator and the victim(s). On the one hand, reparation for low-level corruption
is conceptually less challenging as there is more likely to be a direct causal relation-
ship and an identifiable victim. However, in the context of transitional justice, the
overwhelming number of victims would likely render an administrative reparations
programme unworkable. This would certainly be the case in Kenya, where corrup-
tion is ‘endemic.’59
Regarding grand corruption, the challenge of repairing harm is more complex as
the class of potential victims may be endless. For example, the TJRC received reports
from informers regarding corruption in the procurement process for electronic voter
registration and identification devices for the 2013 election. In such cases, political
participation rights were indeed affected, yet the chain of causation is indirect, lead-
ing to the result that there are millions of potential victims. In situations where high-
level corruption does constitute a violation of human rights, the harm is more likely
to be collective, for example if corruption diverts money away from the construction
of a new medical centre. In such cases, collective reparations may be the most effect-
ive way of returning the situation to what it was before the wrong took place.
Collective reparations are often regarded with suspicion based on a fear that the
legal right to reparation will be subsumed into development programmes and

56 Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) v. Federal Republic of
Nigeria and Universal Basic Education Commission (UBEC), ECW/CCJ/APP/12/07; ECW/CCJ/JUD/
07/10 (ECOWAS) (30 November 2010).
57 See, Human Rights Committee, ‘General Comment No. 31: The Nature of the General Obligation
Imposed on States Parties to the Covenant,’ adopted on 29 March 2004 (CCPR/C/21/Rev.1/Add.13).
See also, ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International Humanitarian
Law,’ UN Doc. A/Res/60/147 (21 March 2006).
58 TJRC, supra n 45 at vol. 9, p. 122.
59 Ibid., 56.
12  I. Robinson

become indistinguishable from the state’s obligations to provide for its citizens.60
This is certainly a valid consideration, particularly if the reparations are not linked to
any kind of recognition or acknowledgement. For example, if recovered funds are
simply fed into community development or infrastructure projects at large, then ‘rep-
arations’ will lose their reparative nature. However, as noted above, high-level corrup-
tion that amounts to a human rights violation would necessarily involve a direct
relationship, meaning that reparations could be awarded to identifiable victims
(including groups). Additionally, collective reparations could take the form of satis-

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faction, including public apologies by senior officials and/or exposing the truth about
large-scale corruption. In this regard, truth commissions could play a role by recom-
mending further investigation of cases, exposing at least part of the truth or providing
a forum in which public apologies could take place.
When grand corruption involves illegal acquisition of land, property restitution
may be a more appropriate form of reparation, which should ideally be dealt with by
a specialized land commission or court. This is the case in Kenya, where a National
Land Commission was established under the 2010 constitution to investigate present
or historical land injustices and recommend appropriate redress. The Land
Commission has appointed a taskforce on historical injustices, which is currently in
the process of drafting legislation on the investigation and adjudication of historical
land injustices.61 The taskforce will draw on the experiences of other countries in ad-
dressing historical injustices relating to land, for example the Bosnian Commission
on Real Property Claims, which dealt with restitution of over 200,000 homes that
were lost during the conflict.62

Forcing a Square Peg into a Round Hole?

The TJRC’s approach to corruption emphasized the impact of corruption on human
rights. This is an essential contribution, which can help to shape the public narrative
in Kenya and complement the anti-corruption framework, particularly given that the
EACC does not address the impact of corruption on human rights. That said, it is
clear that a violations approach to corruption faces several challenges that were not
adequately addressed by the Commission. From a legal perspective, the indirect
chain of causation and difficulties in identifying victims raise problems both in terms
of establishing a concrete legal claim and from the perspective of awarding repar-
ations. Further, the human rights legal framework is essentially individualistic, which
is not necessarily helpful in understanding patterns of corruption, including high-
level and systematic corruption. Thus, although there are certainly some cases – par-
ticularly regarding civil and political rights – where corruption may well constitute a
direct violation of human rights, the Commission could have achieved the same im-
pact by simply emphasizing the impact of corruption on human rights.

60 Naomi Roht-Arriaza, ‘Reparations and Economic, Social and Cultural Rights,’ in Justice and Economic
Violence in Transition, ed. Dustin N. Sharp (New York: Springer, 2014).
61 National Land Commission, ‘Mandate and Functions of the Taskforce,’ http://www.nlc.or.ke/about/
mandate-overview (accessed 15 October 2014).
62 Roht-Arriaza, supra n 60.
 Truth Commissions and Anti-Corruption  13

Political Challenges Faced by the Commission

The TJRC encountered serious challenges in carrying out its work, including allega-
tions that the chairperson of the Commission was a beneficiary of illegally acquired
land63 and that the final report was tampered with to remove information on illegal
acquisition of land, including by Kenya’s first president, Jomo Kenyatta.64 Both issues
involved corrupt deals in relation to land, so it is clear that the Commission’s man-
date increased the risk of political interference. That said, truth commissions are al-
ways subject to political will and may face such push-back even if corruption is not

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addressed. Additionally, land disputes are at the core of many of the human rights
violations committed in Kenya,65 and to exclude these issues from the picture would
have created a shallow and misguided narrative about past abuses.

T U N IS I A: T HE TR U T H A N D D I G N IT Y C O M M IS S IO N
In contrast to the situation in Kenya, the Tunisian TDC has taken an entirely in-
novative approach to corruption by incorporating two specialized committees under
its auspices. Created in December 2013, the TDC was launched in June 2014 and
will run for four years, with the possibility of a one-year extension.66 The
Commission was established pursuant to national legislation following a two-year na-
tional dialogue and consultation led by the Ministry of Human Rights and
Transitional Justice. The law aims to address past human rights violations committed
by previous regimes, in particular the regime of former President Zine al-Abidine
Ben Ali, who ruled from 1987 until the revolution in January 2011. During this time,
Ben Ali’s extended family reportedly embezzled millions and, by 2010, controlled ap-
proximately 20 percent of private sector profits in Tunisia.67
In addressing corruption, the TDC will combine investigation, arbitration and re-
form functions. The Commission is mandated to investigate violations committed by
the state and organized groups from July 1955 to December 2013. Interestingly, this
investigative function is limited to ‘violations,’ which are defined in Article 3 as ‘any
gross or systematic infringement of any human right’ and would thus exclude corrup-
tion, unless the Commission follows the example of the TJRC and frames corruption
as a human rights violation.

Arbitration of Corruption Cases

Rather than investigation at large, the primary competence of the TDC vis-à-vis cor-
ruption is to arbitrate cases through an Arbitration and Reconciliation Committee.

63 TJRC, supra n 45.

64 Gertrude Chawatama, Berhanu Dinka and Ronald C. Slye, ‘Dissenting Opinion with Respect to Chapter
2 of Volume 2b of the Final Report of the Truth Justice and Reconciliation Commission of Kenya,’ cited
in ‘Kenya Truth Commission Report Doctored by State House,’ allAfrica, 6 June 2013, http://allafrica.-
com/stories/201306071639.html?viewall¼1 (accessed 15 October 2014).
65 Simon Robins, ‘To Live as Other Kenyans Do’: A Study of the Reparative Demands of Kenyan Victims of
Human Rights Violations (New York: International Center for Transitional Justice, 2011).
66 International Center for Transitional Justice (ICTJ), ‘Unofficial Translation by the International Center
for Transitional Justice: Organic Law on Establishing and Organizing Transitional Justice,’ on file with
author.
67 Bob Rijkers, Caroline Freund and Antonio Nucifora, ‘All in the Family, State Capture in Tunisia,’ Policy
Research Working Paper (Washington, DC: World Bank, 2014).
14  I. Robinson

The Arbitration Committee, led by a financial specialist, is mandated to consider re-

quests for reconciliation related to cases of financial corruption. The committee can
also refer cases involving election fraud, financial corruption and misuse of public
funds to the Specialized Chambers of the Court of Appeal. The arbitration function
can be triggered by a request from a victim, defined broadly under the law as ‘any in-
dividual, group or legal entity having suffered harm as a result of a violation.’68 In
particular, the law specifies that victims of corruption can include the state, creating a
situation that contrasts with traditional transitional justice contexts where the state is

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framed as the main perpetrator of abuse. Further, the state will be party to all dis-
putes presented to the committee, and in cases of financial corruption relating to
public funds the state must approve the request.
In carrying out its mandate, the committee has broad quasijudicial powers, includ-
ing the power to request information or documents that cannot be refused on
grounds of ‘professional secrecy obligations,’ to order public hearings and to under-
take precautionary measures to preserve documents that are at risk of being des-
troyed. Additionally, the committee can award an arbitration judgment that suspends
litigation or execution of a sentence provided that the terms of the judgment are im-
plemented. In this regard, the Arbitration Committee is empowered to award condi-
tional amnesty, and can thus be compared to the South African Truth and
Reconciliation Commission, which awarded amnesty to 1,167 individuals in ex-
change for full disclosure of their crimes.69 However, rather than dealing with human
rights violations, the committee is competent to award conditional amnesty to per-
petrators of financial corruption, provided that the individual acknowledges his or
her guilt and offers a clear apology. Importantly,

litigation or punishment shall be resumed if it was proven that the perpetrator

of a violation has deliberately hidden the truth, or deliberately did not report
all what he/she has taken unlawfully.70

Although conclusions cannot be drawn until the committee begins its work, there
is concern that the arbitration function will overburden the TDC with an administra-
tive workload and create problems of procedural fairness arising from the exercise of
quasijudicial functions.71 On this basis, the special rapporteur on the promotion of
truth, justice, reparations and guarantees of non-recurrence recommended that a bet-
ter approach may be to establish independent bodies ‘with the professional capacities
and specialisation for investigating financial files and settling individual corruption
cases by arbitration.’72 Accordingly, the special rapporteur highlighted the approach
of the Tunisian National Commission of Investigation on Corruption and

68 ICTJ, supra n 66 at arts. 46 and 10.

69 Hayner, supra n 29.
70 ICTJ, supra n 66 at art. 45.
71 ‘Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of
Non-Recurrence: Mission to Tunisia (11–16 November 2012),’ UN Doc. A/HRC/24/42/Add.1 (30
July 2013).
72 ‘Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of
Non-Recurrence, Pablo de Greiff,’ UN Doc. A/HRC/24/42 (26 August 2013), [50] fn. 61.
 Truth Commissions and Anti-Corruption  15

Embezzlement (NCICE), a temporary body established immediately after the revo-

lution to investigate cases of corruption since 1987. The NCICE received some
10,000 complaints and referred 400 cases to the director of public prosecutions be-
fore publishing its final report in May 2012.73
In addition, there is a risk that the Arbitration Committee will overshadow the
other aspects of the TDC’s mandate. That said, it is still unclear how many cases the
committee will deal with, particularly as the arbitration process relies on the willing-
ness of perpetrators to publicly acknowledge their crimes and offer an apology.

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Further, it is important to recall that other truth commissions have established arbi-
tration committees that have operated under their auspices. For example, in Timor-
Leste, the Commission for Reception, Truth and Reconciliation established the
Community Reconciliation Process programme, which arbitrated less serious crimes
between the parties and involved admission and apology by the perpetrator, as well
as an agreement to undertake community service or another act of reconciliation.74
Although there is a clear difference between corruption and less serious property
crimes, a parallel can be drawn with the TDC, particularly if the Arbitration
Committee deals with less serious cases of corruption.
Similarly to Kenya, the risk of the TDC being overburdened may be mitigated in
part by drawing on previous work undertaken by anti-corruption bodies, including
the NCICE, as well as the permanent National Anti-Corruption Commission
(NACC). The NACC was created by legislation in November 2011 and established
in May 2013, pursuant to the recommendations of the NCICE. Similarly to the situ-
ation in Kenya, Tunisia’s NACC focuses primarily on prevention, awareness raising,
developing anti-corruption policies, legislative reform and research.75 However, the
NACC can also receive complaints, and may thus be able to assist the Arbitration
Committee in carrying out its mandate. Indeed the law on transitional justice fore-
sees that the NACC can make referrals to the committee, provided there is agree-
ment between the parties.76 Given that the NACC does not have a specific mandate
to examine the effects of corruption on human rights, the TDC can also contribute
this perspective where relevant.

Vetting and Institutional Reform

In addition to its arbitration function, the TDC is mandated to establish a
Committee for Vetting Public Servants and Institutional Reform, which will recom-
mend reforms for institutions that participated in corruption, as well as vetting of in-
dividuals who intentionally supported or assisted members of the former regime in
looting public money. Vetting procedures are an important way of incorporating cor-
ruption into the transitional justice paradigm; however, as with the Arbitration
Committee, incorporating this process into the TDC is extremely ambitious and
creates a clear risk of overburdening the Commission or detracting from the other

73 See, Anticor, ‘Instance Nationale de Lutte Contre la Corruption,’ http://www.anticor.tn/acteurs/

instance-nationale-de-lutte-contre-la-corruption (accessed 15 October 2014).
74 Patrick Burgess, ‘Justice and Reconciliation in Timor-Leste: The Relationship between the Commission
for Reception, Truth and Reconciliation and the Courts,’ Criminal Law Forum 15 (2004): 135–158.
75 Law No. 2011-120 of 14 November 2011, concerning the fight against corruption.
76 ICTJ, supra n 66 at art. 46.
16  I. Robinson

aspects of its mandate. This is of particular concern given that the Vetting
Committee is directed to focus on individuals in senior positions, creating a high risk
of push-back and politicization. Again, final conclusions cannot be drawn pre-emp-
tively; however, these risks could have been avoided by establishing an independent
vetting process alongside the truth commission.

Conclusions on a Quasijudicial Approach

The significant powers of the TDC regarding arbitration and vetting effectively mean

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that the TDC’s work vis-à-vis corruption is characterized by a quasijudicial nature. This
is not necessarily a new phenomenon; indeed, there have been truth commissions that
have had subpoena powers (including for individuals or documents and other objects)
and search and seizure powers.77 However, it is certainly the first time that a truth com-
mission has been given such far-reaching powers vis-à-vis corruption. On the one hand,
empowering a truth commission may help to strengthen its findings and recommenda-
tions and to avoid the challenges that many commissions have faced by virtue of their
weak institutional positions. On the other hand, mandating the TDC to identify individ-
uals for vetting and grant conditional amnesty will necessarily require consideration of
procedural fairness issues, and will thus increase the workload of the Commission.

T O WA R D S A CO M P LE M EN T A R Y F R A M E WO R K
In contexts where corruption is linked to human rights violations, and particularly
where high-level corruption is identified as an important social grievance, truth com-
missions should be mandated to address corruption. Although there is no clear evi-
dence indicating that a failure to do so will lead to violence, or that doing so will
help to consolidate civic trust, it is clear at least that exposing the truth about human
rights violations should involve disclosure of the whole truth. Thus, where corruption
is intricately linked to human rights violations – including appropriation of land,
fraudulent procurement processes that lead to substandard service provision and di-
version of funds away from the provision of services that will protect or fulfil human
rights – exposing the impact of corruption on human rights can help shape the public
narrative in a way that also recognizes economic violence.
In doing so, however, it is vital that truth commissions do not duplicate other
anti-corruption processes, particularly given that the anti-corruption ‘industry’ is
steadily growing. Indeed the UN Convention against Corruption (UNCAC) now
has 172 states parties, each obliged to establish preventative anti-corruption bodies,
undertake prevention activities and ensure the existence of law enforcement author-
ities specializing in combating corruption. Yet, it must be noted that the human im-
pact of corruption is starkly absent from UNCAC and many anti-corruption
commissions, leading one critic to argue that

one needs the human rights discourse to guarantee that anti-corruption is

placed in the light of human dignity, and anti-corruption can move beyond the
sphere of the World Bank and other ‘Western’ institutions.78

77 See, Mark Freeman, Truth Commissions and Procedural Fairness (Cambridge: Cambridge University Press, 2006).
78 Boersma, supra n 7 at 202.
 Truth Commissions and Anti-Corruption  17

Thus, the existing institutional landscape should influence not only whether a com-
mission examines corruption but also how it examines corruption.
The distinct approaches of the Kenyan TJRC and the Tunisian TDC demonstrate
that there are multiple ways for a truth commission to incorporate corruption into
its mandate, including investigation, analysis, arbitration and recommending legisla-
tive and institutional reform. Some approaches are associated with higher risks and
may be more or less appropriate in different contexts. As each commission will ad-
dress different patterns of abuse and operate in a distinct institutional and political

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context, attempts to examine the links between corruption and human rights will
pose unique challenges. Ultimately, the approach of a truth commission should be
shaped by the objectives it seeks to achieve. To the extent that a truth commission
seeks to maximize its discursive potential vis-à-vis corruption, the following points
help to set the foundations for a complementary framework.

Tackling Corruption through Truth Commissions

The first aspect for a truth commission to consider is the extensive scope of corrup-
tion and whether some types of corruption should be targeted above others.
Defining boundaries for a truth commission is particularly important given the extent
of corruption in some contexts and its multiple dimensions. Of course, in some con-
texts human rights will be affected by all types of corruption – high-level, low-level
and systematically entrenched – and across a diverse range of sectors. Additionally, it
may be somewhat artificial to draw clear-cut boundaries when corruption manifests
in complex cycles of violence. However, in light of their temporal, financial and func-
tional limitations, truth commissions may be more suited to addressing patterns of
violence (systematic corruption) and the most serious abuses (grand corruption).
Second, it is clear that truth-seeking processes should draw on the results of previ-
ous investigations to the extent that they exist. This will help manage the risk of over-
burdening truth commissions with an extensive mandate. Where previous
investigations by anti-corruption commissions do not emphasize the human impact
of corruption, truth commissions can provide an additional dimension. However, as
was demonstrated by the TJRC, adopting a violations approach and squeezing cor-
ruption into the framework of international human rights law may not be beneficial,
particularly when the analysis is incomplete. A better approach is simply to examine
and emphasize the impact of corruption on human rights.
Of course, the approach of the TJRC can only be followed where an anti-corrup-
tion commission already exists. In these cases, truth commissions may also be able to
contribute to strengthening the anti-corruption framework by identifying and recom-
mending reform priorities, for example by recommending that anti-corruption com-
missions take into account the way that corruption impacts on states’ obligations to
respect, protect and fulfil human rights. In transitioning societies where the anti-cor-
ruption framework is weak or nonexistent, truth commissions can make recommen-
dations for the establishment of a permanent anti-corruption commission and a
national anti-corruption strategy. Particularly in postconflict contexts, where the in-
stitutional structure of a state has been eroded by years of conflict, truth commis-
sions may have a catalyzing effect and help to build momentum at a grassroots level
for longer-term anti-corruption reform.
18  I. Robinson

Regarding public hearings, some truth commissions have chosen to hold thematic
hearings on particular issues, including land and displacement, or for particular
groups. Likewise, thematic hearings could take place on the issue of corruption. Such
hearings would provide a public space for victim participation or, likewise, for indi-
viduals who have been involved in corruption. In relation to victim and perpetrator
participation, an alternative model is to facilitate arbitration of cases, as will be the
approach of the Tunisian TDC. As noted above, it is impossible to draw clear con-
clusions before the TDC commences its work, but the arbitration function certainly

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creates a number of additional risks for truth commissions. Likewise, incorporating
vetting into the mandate of a truth commission runs the risk of detracting attention
from the commission’s truth-telling and truth-seeking activities.
Selection of commissioners is an important way of minimizing the additional risks
that may arise from a mandate that includes investigation of corruption. In this
regard, commissioners should go through a robust selection process involving thor-
ough scrutiny of candidates and their potential links to or involvement in corrupt
acts. In addition, at least one commissioner (and additional staff) should be selected
on the basis of their skills and expertise in investigating and understanding corrup-
tion. As noted above, this approach has been adopted by the Tunisian TDC, which
includes a financial specialist among its 15 commissioners.
A final approach to consider is asset tracing and recovery of assets. Although there
have been no truth commissions that have attempted to carry out this task, it was ini-
tially considered by the Task Force on the Establishment of a Truth, Justice and
Reconciliation Commission in Kenya79 and has been mentioned more generally in
the literature as a way of funding transitional justice mechanisms. As far as truth
commissions go, however, asset recovery is a complex and lengthy process that goes
far beyond most commissions’ functional and practical capabilities. Indeed, asset re-
covery can take years and may often require international investigations across mul-
tiple jurisdictions. Thus, although recovered funds could certainly be used to help
fund a truth commission, the recovery process should be left to specialized processes,
such as the Confiscation Commission in Tunisia.80

C O N CL U S I O N
In sum, the extent to which transitional justice addresses corruption will depend on a
number of factors, not least the fact that transitional justice processes, including truth
commissions, are but a tiny drop in an enormous ocean of ‘anti-corruptionism.’81
Truth commissions are not the ultimate saviour and cannot single-handedly rectify
all wrongs in a transitioning society, particularly complex patterns of petty, grand
and systematic corruption. However, just because corruption has not been part of
the traditional domain of truth telling and truth seeking does not mean that it should
remain that way forever. The inherent links between corruption and human rights,
combined with the fact that corruption is increasingly identified as a justice issue in

79 Task Force, supra n 41 at 33.

80 Law No. 2011-13 of 14 March 2011, concerning confiscation of assets and real and personal property.
81 Steven Sampson, ‘The Anti-Corruption Industry: From Movement to Institution,’ Global Crime 11(2)
(2010): 261–278.
 Truth Commissions and Anti-Corruption  19

transitioning societies, means that there are strong reasons to find practical ways of
achieving justice for victims of corruption. A complementary approach seeks to do
this by highlighting the added value of transitional justice processes that address cor-
ruption, by acknowledging the functional and practical limitations of those processes
and by seeking to strengthen the potential connections between truth commissions
and anti-corruption efforts.

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