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1
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Any legal person, regardless of their nationality, can submit information requests to the public sector.
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2
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The public sector is explicitly defined to mean any state agency or court or municipality or private company in which the Lebanese state owns a stake.
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3
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The requested information can be in the form of written and electronic documents, audiovisual recordings, photographs, machine-readable documents, studies, reports, minutes of meetings, decrees, memos, archival documents, fiscal data and public contracts.
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7
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Public bodies are mandated to make their budgetary data available on their websites.
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8
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Public bodies are mandated to publish annual reports detailing all of the activities carried out during the year.
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13
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Public bodies must properly store and archive their information in ways that make information retrieval easy, preferably electronically.
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16
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Public bodies must appoint an ‘information officer’ who handles all ATI requests, and deadlines are specified so that the information officer must respond within 15 days of receiving an ATI request, and is allowed to extend the deadline once, by an additional 15 days, if the request demands a lot of information or if approval from a third party is required.
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18
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Accessing information is free, or would only cost a symbolic fee, such as the cost of printing or photocopying.
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19
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Should the public body refuse to provide the requested information, a written justification must be provided, while the requester has a two-month window to submit a complaint to the Anti-Corruption Commission.
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22
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The Commission is tasked with receiving and reviewing complaints dealing with non-compliance with ATI requests, providing guidance and advice to public bodies regarding how to implement the law, releasing annual reports on how the Law on the Right to Access Information is being abided by and what challenges are faced, and informing the public about the importance of transparency and having access to information.
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Source: Law No. 28 on the Right to Access Information, published on 16 February 2017 in Issue 8 of the Official Gazette. Available on the website of the Lebanese University’s Legal Informatics Center: http://www.legallaw.ul.edu.lb/Law.aspx?lawId=269965.
It should be noted that Lebanon’s Law on the Right to Access Information applies both to public bodies and to private firms linked to the public sector. Furthermore, in September 2020, the Lebanese government passed Decree No. 6940, implementing Law No. 28, which took into account remarks and comments submitted by CSOs.
While the provisions of the Law on the Right to Access Information appear comprehensive, its enactment constitutes only the first step in a long and arduous journey towards achieving full transparency. In March 2017, shortly after the law’s ratification, the lawyer and anti-corruption activist Ghassan Mukheiber (also at that time a member of the legislature) stated, ‘The challenge of this law is implementation’.
Survey evidence indicating that the law has been applied in a sporadic rather than systematic manner highlights the lack of transparency in the public sector, which is partly driven by the interests of the political elites. A study conducted in 2018 by the Gherbal Initiative found that out of 133 public bodies that were sent ATI requests, only 34 responded, and of these, only 18 provided the requested information. A follow-up study was carried out in late 2018 and early 2019, requesting financial data for the year 2017 from 140 entities including public bodies, private firms contracted by the government and private firms in which the government owns shares; only 68 responded, and less than half of these provided the full range of information requested. In March 2021, the Gherbal Initiative released its third annual report: In 2020, ATI requests were submitted to 200 public entities demanding their annual financial statements for the years 2018 and 2019. Of these entities, 102 did not respond while among those that did respond, only 47 entities provided the full requested information and 17 entities provided partial information. Although several public bodies that had not complied with the law in previous years did submit the requested information in 2020, it is worth noting that the Lebanese parliament refused to comply for the third consecutive year, with the Directorate General of the Presidency of the Lebanese Parliament arguing that the documents demanded by the ATI request should be requested from the Ministry of Finance.
Some of the public bodies to which ATI requests were submitted were simply unaware of the new law’s existence, while others (see below) justified their non-compliance by citing procedural reasons (that the National Anti-Corruption Commission had yet to be established, and that the decree implementing the Law on the Right to Access Information was still awaiting release), which supposedly rendered Law No. 28 inoperative. Such excuses can be seen as flimsy at best and dishonest at worst, as the enforcement of the Law on the Right to Access Information is not in any way contingent upon the establishment of the Anti-Corruption Commission or the release of the law’s implementation decree.
When the highest executive and legislative authorities in the country appear to refuse to comply appropriately with the Law on the Right to Access Information, it may be argued that there is an absence of sufficient political will to fully implement the law.
An instance that gave rise to concerns that a lack of political will was hindering the implementation of the Law on the Right to Access Information occurred in mid-2019, when an ATI request was submitted to the Council of Ministers by a group of CSOs requesting the government’s official decision regarding the Deir Ammar power plant and all accompanying documents, most notably the contract to build and operate the power plant as well as the identity of the private company that obtained the contract (see also Annex, Box 5, for more information on the general state of Lebanon’s electricity sector). In June 2019, the Council of Ministers’ Secretary General refused the ATI request, stating that the law could not be implemented prior to the release of its implementation decree or the formation of the National Anti-Corruption Commission. Outraged, the CSOs hosted a press conference in September 2019 entitled ‘Blocking Access to Information is a Green Light to Corruption’, calling on the government to properly implement the Law on the Right to Access Information and on parliament to pass other long-awaited anti-corruption legislation, such as the law establishing the National Anti-Corruption Commission. Nizar Saghieh, executive director of the Legal Agenda non-profit research and advocacy organization, claimed later that month that the government had ‘rushed to exploit’ the Law on the Right to Access Information for the purposes of ‘boasting’, not for reasons of transparency, and that the political establishment was not serious about its proper implementation. The fact that the Presidency of the Republic, the Presidency of the Council of Ministers and parliament had refused to comply with the Law on the Right to Access Information as per the three aforementioned reports published by the Gherbal Initiative gives credence to Saghieh’s claims.
To put it simply, when the highest executive and legislative authorities in the country appear to refuse to comply appropriately with the Law on the Right to Access Information, it may be argued that there is an absence of sufficient political will to fully implement Law No. 28, and to promote transparency in the public sector.
Precarious protection to whistle-blowers
The lack of an independent judiciary is a major impediment for the implementation of anti-corruption laws. It is no secret that much of Lebanon’s judicial branch is perceived to be under pressure or control from the country’s political class, impairing its judges’ abilities to combat corruption. The legal framework regulating Lebanon’s judicial system ‘allows for improper political influence over virtually every aspect of judges’ careers, including their selection and appointment, […] and their discipline, suspension and removal through unfair and opaque proceedings’. On numerous occasions, the Lebanese government has reportedly harassed judges by threatening to reduce budget allocations or by punishing those who participate in strikes.
The judiciary’s lack of independence is illustrated vividly in relation to the laws on whistle-blowing. When accessing public information is impossible due to obstacles or bureaucratic intransigence, whistle-blowing becomes necessary so that corruption can be uncovered. A whistle-blower is an individual within an organization who calls ‘attention to the illegal or immoral behaviour of others in the organization or of the organization itself’. In recent years, governments throughout the world have begun to enact legal protections for individuals who ‘blow the whistle’ on wrongdoing and who leak information to journalists or the public at large that details illicit and unlawful activities that are going on within an organization. Articles 32 and 33 of the UNCAC stipulate that ‘effective protection from potential retaliation or intimidation’ must be offered to witnesses and experts who ‘give testimony’ concerning corruption-related matters, while appropriate measures to offer such protection must be incorporated into the domestic legal system.
For many years Lebanon lacked such legal protections for whistle-blowers, and it was not until 2010 that draft legislation on the subject was submitted to parliament. Eight years later, in September 2018, the legislature passed the law, which was published in the Official Gazette the following month as Law No. 83 on the Protection of Whistle-blowers. The law’s key provisions are summarized below.
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1
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Definitions: ‘Corruption’ is defined as any act carried out by an employee for personal enrichment or for illegal purposes. The ‘Commission’ denotes the National Anti-Corruption Commission, which has its own law stipulating its establishment. The ‘whistle-blower’ refers to any legal or natural person who provides information to the Commission that they believe may be linked to corruption, regardless of the type of document presented by the whistle-blower. The definition of ‘employee’ is very expansive as it includes any individual, elected or appointed, working in the legislative, judicial and executive branches, as well as any individual working for the military or the security agencies, advisers and any individual working for the public good, on a full-time or part-time basis, with or without compensation.
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2
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Whistle-blowers must provide the information at stake to the National Anti-Corruption Commission.
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3
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The commission’s duties and responsibilities include carrying out investigations into the corruption allegations, providing all the necessary legal and physical protection and assistance to the whistle-blower, and determining the compensation to be awarded.
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4 and 5
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When submitting information, whistle-blowers must specify their full name, address, profession, the type of corruption uncovered, the names of the individuals implicated in corruption, the location and time where the corrupt acts took place, and, when possible, submit all relevant documents that prove that corruption did take place.
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6
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The commission must not reveal the identity of the whistle-blower.
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7 to 12
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Protections granted to the whistle-blower, and penalties inflicted on those who (a) refuse to respond to the commission’s investigations or to those who (b) inflict physical or work-related harm on the whistle-blowers or their families.
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13 to 15
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Rewards and financial incentives to whistle-blowers: The National Anti-Corruption Commission provides a compensation to a whistle-blower (a) if the revelations led to the public body retrieving material assets, such as recuperating stolen funds or fines, or (b) if the revelations averted the public body from losing funds or incurring material damage. The value of the compensation is set not to exceed 5 per cent of the value of the retrieved funds or assets. If the value of the retrieved asset cannot be determined, the Commission must determine the value of the compensation based on how important the retrieved asset was, as long as the compensation does not exceed 50 times the minimum wage.
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Source: Law No. 83 on the Protection of Whistle-blowers published on 18 October 2018 in Issue 45 of the Official Gazette. Available on the website of the Lebanese Association for Taxpayers’ Rights.
The provisions of the Law on the Protection of Whistle-blowers are clear and are aligned with the UNCAC; the law can be considered as a positive step towards effectively combating corruption and discouraging malicious behaviour in the public sector in Lebanon. In early October 2020, the minister of justice issued a statement declaring that a specialized office tasked with receiving whistle-blower complaints and assisting the public prosecutor’s office with handling such complaints was to be established within the ministry, with its own telephone ‘hotline’, email address and appropriately trained staff, capable of handling such a sensitive issue and ensuring the anonymity of whistle-blowers. However, as of mid-2021, it is not clear whether this office or that of the public prosecutor has actually received any information from whistle-blowers – especially as the implementation of the Law on the Protection of Whistle-blowers hinges upon the establishment of the National Anti-Corruption Commission, which, at the time of writing, had yet to be established. Without the Commission in place, both the protection and compensation to which whistle-blowers are entitled are at stake.
Although an additional paragraph was appended to Article 9 of the Law on the Protection of Whistle-blowers by Law No. 182 (passed on 12 June 2020), stipulating that whistle-blowers will enjoy the protections offered by the law, should they choose to submit the corruption-related information to the public prosecutor, the law remains unlikely to be implemented, due to low levels of trust in the judicial system.
In Lebanon, the judiciary is inextricably tied to the executive – in other words, to the country’s political elite.
In Lebanon, the judiciary is inextricably tied to the executive – in other words, to the country’s political elite. The administrative judiciary – known as the State Council – is the judicial body responsible for providing counsel and opinions on draft laws, as well as monitoring decisions undertaken by state institutions to ensure their legal validity. In theory, the State Council is considered as an independent judicial authority that protects public funds as well as the rights of citizens and public institutions alike. Alas, this is not the case. The State Council Bureau, the body responsible for ‘ensuring the proper administration of justice within the Lebanese administrative justice system’, is tied to the Ministry of Justice, as its members, including the president of the State Council, ‘are appointed by Cabinet Decree upon proposal of the Minister of Justice’. According to the International Commission of Jurists, ‘the Minister of Justice has a direct influence on the selection of all the members of the State Council Bureau’.
As is the case with the administrative judiciary, Lebanon’s civil judiciary is also bound by the executive branch. The High Judicial Council is the body responsible for overseeing the civil judiciary, ensuring its independence and preparing judicial formations and the appointment and transfers of judges. However, out of its 10 members, eight are appointed by the executive branch, rendering the council largely subservient to it. The public prosecution office, whose role is to initiate charges against alleged criminals in the interest of the public, is not only characterized by a very strict hierarchy, but the public prosecutors themselves are appointed on a sectarian and politicized basis. A quarrel that erupted in recent months in full view of the public between the prosecutor general and the public prosecutor of Mount Lebanon, both of whom are reported to be affiliated with rival political parties, is only the latest manifestation of the dysfunctional and politicized state of the Lebanese judiciary. It is no surprise then that the judiciary has lost much of the public’s trust in recent years: In 2018, according to Arab Barometer, only one-quarter of the Lebanese population trusted the country’s judiciary, while in 2016 this figure had been as low as 17 per cent.
Civil liberties in Lebanon have come increasingly under threat in recent years, while the judiciary has appeared far too willing to abide by the dictates of the political elites, apparently seeking to silence dissenting voices. The country’s political elites have taken advantage of ambiguous formulations in Lebanon’s penal code to clamp down on free speech. Since 2015, there has been an alarming rise in the number of journalists and activists who have been summoned for interrogation by the government’s Anti-Cybercrime and Intellectual Property Rights Bureau after legal complaints of slander and/or defamation were submitted by members of the political class, criticisms of whom had been posted by the detained reporters and activists on social media platforms. According to Human Rights Watch, in 2015, the Cybercrimes Bureau investigated 431 cases of defamation, libel and slander. The number significantly increased in the following years, reaching 1,451 defamation cases in 2018, the year in which parliamentary elections were scheduled. According to the Cybercrimes Bureau, between January 2015 and early December 2020, it conducted 4,154 defamation investigations, a number which Human Rights Watch believes is not exhaustive and which does not include interrogations carried out by other security agencies, most of which are alleged to be under the informal influence of segments of the political class. Following their interrogations, activists and reporters would be made to sign a pledge stating that they would not criticize the individual again, which fosters a climate of self-censorship.
A worrying backsliding in civil liberties would not bode well for the fight against corruption, and if journalists are practising self-censorship, then the likelihood of honest public officials coming forward with corruption-related evidence seems very low. It is hard to imagine how potential whistle-blowers will feel safe – and sufficiently encouraged to come forward and submit any incriminating information that they may hold.
Averting the resource curse: Transparency in oil and gas sector legislation
The established record of Lebanon’s political elites using state resources to benefit their own private interests is a further challenge to implementing anti-corruption measures, as demonstrated in civil society concerns regarding Lebanon’s potential offshore gas. In the early 2010s, the Lebanese public was presented with grand promises regarding the country’s potential to become a gas exporter. A massive advertising campaign, commissioned by the Ministry of Energy and Water, dotted Lebanon’s highways with billboards promising the improvement of the country’s public transportation system, the creation of job opportunities for the youth, the enhancement of basic education and healthcare services, and the provision of retirement benefits and appropriate support to the Lebanese Armed Forces. At the time of writing in mid-2021, none of these grand promises has been fulfilled, and the development of the country’s petroleum sector has proceeded at a slow pace. Given the systemic nature of corruption in Lebanon and the poor governance that characterizes its public sector, there is no guarantee that the nascent petroleum sector, which has yet to generate significant revenues, will be insulated from the grip of the political elites and their cronies in the private sector.
Lebanon’s recent experience with hydrocarbons sector development dates back to the mid-2000s, when substantial reserves of natural gas were discovered in the Eastern Mediterranean.
Lebanon’s recent experience with hydrocarbons sector development dates back to the mid-2000s, when substantial reserves of natural gas were discovered in the Eastern Mediterranean. In February 2007, Lebanon signed a bilateral agreement with the government of Norway under the latter’s Oil for Development Programme: this aimed ‘to prepare Lebanon for the management of possible petroleum resources in the offshore Exclusive Economic Zone’ and to establish the ‘regulatory framework needed to pursue petroleum exploration’. Since then, several key pieces of legislation to regulate the oil and gas sector have been passed. Law No. 132 on Offshore Petroleum Resources, which is the general legal framework through which the government provides contracts to oil companies in the sector, was passed in 2010, followed in 2012 by Decree No. 7968, which established the Lebanese Petroleum Administration (LPA). The LPA is an autonomous public agency ‘mandated to plan, supervise and manage the upstream petroleum sector in Lebanon’s offshore’, prepare petroleum-related legislative drafts, strategies and technical studies, as well as undertake ‘all necessary preparations related to licensing rounds’. In 2013, Decree No. 10289, also known as the Petroleum Activities Regulation Decree, was passed, further delineating the rights and obligations of all concerned parties and stakeholders participating in oil and gas-related activities.
To ensure that Lebanon’s petroleum sector is run in a transparent manner, a draft law on combating corruption in the petroleum sector was presented to the legislature in 2016. In the following year, the LPA worked with several MPs on refining the draft law to make it more comprehensive and to ensure compliance with the Extractive Industries Transparency Initiative’s Guide for Legislators. In 2018, parliament ratified Law No. 84 on Enhancing Transparency in the Petroleum Sector, the key provisions of which are summarized in Table 6.
Source: Law No. 84 on Enhancing Transparency in the Petroleum Sector, published on 18 October 2018 in Issue 45 of the Official Gazette. Available on the website of the Lebanese Petroleum Administration.
As a whole, Law No. 84 has garnered much praise for the potential it holds to limit the avenues for corruption in the petroleum sector. It ‘covers all petroleum activities conducted within Lebanese territory (offshore and onshore) by all Lebanese and foreign stakeholders from both the private and the public sectors’, requiring numerous public entities (including the Council of Ministers, the Ministry of Energy and Water, the LPA and all other public bodies directly involved in petroleum-related-activities) to disclose all information relating to petroleum activities. Thus, the Ministry of Energy and Water and the LPA are required to ‘publish the adopted conditions and requirements which companies must meet in order to qualify for an [Exploration and Production Agreement]’, ensure that the bidding process is transparent, and that ‘all technical information relating to the licensing, exploration and production phases’ is available to the public at all times. The law has also granted civil society ‘the right to continuously monitor the transparency of petroleum activities’. Furthermore, Article 10 (7) on the concept of ‘beneficial ownership’ requires all identities of the owners and beneficiaries of all firms in the value chain to be made public, which could limit the potential for corruption at the subcontracting level.
At first glance, it appears that the Law on Enhancing Transparency in the Petroleum Sector is being properly implemented. The LPA has been complying with its provisions as well as with those of the Law on the Right to Access Information, and the administration’s activities are documented and made available to the public to the fullest extent via the LPA’s website. A visit to the website reveals its sleek design and user-friendly interface, and the ease of accessing key documents.
However, several caveats arise. Firstly, as with the other laws covered in this paper, the Law on Enhancing Transparency in the Petroleum Sector accords many responsibilities and tasks to the National Anti-Corruption Commission, such as ensuring that the law itself is implemented and that the information provided to the public is accurate. Given that the Commission has yet to be established, this complicates the law’s implementation. In addition, the law does not clearly delineate the punishments that are to be meted out on those who violate it, be they employees of the private firms in the petroleum value chain or public officials.
Given the systemic nature of corruption in Lebanon, there is a very real risk that the sector as a whole could become an avenue for the further self-enrichment of the political class without transparency and adequate monitoring.
More worryingly, given the systemic nature of corruption in Lebanon, there is a very real risk that the sector as a whole could become an avenue for the further self-enrichment of the political class without transparency and adequate monitoring. From the first stage of the value chain, where licences for exploration and production are agreed with oil companies, to the subcontracting stage, where the oil companies procure the services of other companies, it is very possible that politically affiliated firms could obtain preferential treatment, should Law No. 84 not be properly implemented. As has happened in many resource-rich countries across the world, Lebanon risks falling prey to the resource curse whereby ‘in the absence of good governance, strong institutions, rule of law and effective regulations’, the country’s petroleum sector would be ‘likely to lead to more corruption and capture of the resource wealth by special interest groups and politicians to the detriment of the national interest and future generations’.
Although Lebanon’s petroleum sector is still in its infancy, questions have been raised regarding the limited revenues that have been collected thus far. The Lebanese state has already generated revenues from the application fees paid by companies seeking to participate in the licensing round, and from the sale of data resulting from seismic surveys carried out in the 1990s and 2000s to companies interested in participating in the hydrocarbons sector. The Law on Offshore Petroleum Resources, passed in 2010, stipulates that returns from all petroleum-related activities are to be deposited in a sovereign wealth fund – yet to be established – which will have its own regulations governing how the revenues are to be used and invested. In 2012, the Council of Ministers passed a resolution stipulating that the returns generated from the sale of data from offshore seismic surveys were to be ring-fenced by transferring them to a designated account held at the Banque du Liban, with the energy minister at the time justifying this stipulation as a means to protect these funds from being used by the government, and to safeguard the initial intention of the 2010 Law on Offshore Petroleum Resources.
This situation exemplifies how the resource curse could potentially manifest itself in Lebanon: by being placed in a special account at the Banque du Liban, the revenues are not subjected to appropriate external oversight, be it by parliament or by other monitoring agencies. The Ministry of Energy and Water and the LPA failed to publish detailed information on the amounts deposited in the designated account, and it was not until significant pressure was exerted by civil society groups – armed with the Law on Enhancing Transparency in the Petroleum Sector – that the LPA eventually published the figures in March 2019. As at 30 April 2021, the account balance was reported to be $45.19 million. However, this figure was not accompanied by any official validation documents, which has prompted CSOs to call for an audit of the Banque du Liban account – this has yet to take place.
Despite some promising indications, such as the comprehensive provisions of the Law on Enhancing Transparency in the Petroleum Sector, the example cited above emphasizes that no matter how well anti-corruption and transparency laws are crafted, there is a perception that they are unlikely to be implemented appropriately without coordinated pressure from below. Moreover, even when information is provided as requested, its validity may be treated with scepticism in the absence of a trusted monitoring mechanism tasked with ensuring appropriate management of the accounts and revenues. There are justifiable worries regarding the future of the petroleum sector and the way it is administered, with many Lebanese believing that ‘the oil and gas sector will be another means by which the political class will siphon Lebanon’s wealth’.
The Anti-Corruption Commission Law: A potential ‘paper tiger’
The existence of a weak state infrastructure presents an additional obstacle to the implementation of anti-corruption legislation in Lebanon. Specifically, and in addition to wider problems, it impedes the establishment of a National Anti-Corruption Commission in the country. In much of the literature on corruption and how it can be combated, reference is often made to ‘anti-corruption commissions’, which tend to be autonomous public bodies composed of experts from several fields (accounting, law, public administration, and so on) with wide-ranging legal and executive powers enabling them to carry out all types of anti-corruption activities. Such commissions play a key role in limiting and deterring corruption, as well as in promoting the values of openness, transparency and integrity in the public sector and in society at large. Article 6 of the UNCAC states that a body tasked with overseeing and guiding all anti-corruption efforts should be established, which would also disseminate ‘knowledge about the prevention of corruption’ and would benefit from ‘the necessary independence’ to be able to carry out its functions without succumbing to pressure or undue influence. The UNCAC also stipulates that such a body should be provided with ‘[t]he necessary material resources and specialized staff, as well as the training that such staff may require to carry out their functions’.
When sufficiently funded, well staffed and unconditionally supported by political authorities, anti-corruption commissions can have a real impact. The anti-corruption commissions in Singapore and Hong Kong, for example, are often heralded as paragons to be emulated. Singapore and Hong Kong were considered underdeveloped and systemically corrupt during the 1960s and 1970s. In both cases, strong anti-corruption commissions were established, enjoying the full support of the top political elites and benefiting from adequate funding and human resources. In the late 2010s, Singapore and Hong Kong were considered to be among the least corrupt places in the world, with efficient and well-functioning public sectors and dynamic economies unencumbered by corruption.
Lebanon has never yet had an independent public agency tasked to combat corruption and ensure the full implementation of corruption-related laws. This might change in the near future, following the passage in 2020 (see below) of the law providing for the establishment of an Anti-Corruption Commission. However, the effective functioning of the commission, which would have numerous responsibilities and tasks, is contingent upon it being well funded and well staffed. In addition, as is the case for other anti-corruption laws and bodies across the world, such a commission requires full political support from the highest echelons of power, as well as an independent judiciary, in order to be functional. In Lebanon, all of these pillars – upon which a commission must rest, if it is to have sufficient impact – are currently inadequate.
The concept of a Lebanese Anti-Corruption Commission first emerged in 2006, when a parliamentary committee began reviewing the possibility of introducing a law to establish such a commission. In 2013, a multi-sectoral committee was formed to prepare a draft law that was then submitted to several parliamentary committees for scrutiny. After a revision (based on comments made by President Michel Aoun) to ostensibly improve the law’s effectiveness and make it more compatible with the other existing anti-corruption legislation in the country, in April 2020 parliament passed Law No. 175 on Fighting Corruption in the Public Sector and the Establishment of the National Anti-Corruption Commission Law (hereafter referenced as the Anti-Corruption Commission Law). Some of the law’s key provisions are summarized in Table 7.
Source: Law No. 175 on Fighting Corruption in the Public Sector and the Establishment of the National Anti-Corruption Commission, published on 14 May 2020 in Issue 20 of the Official Gazette. Available on the website of the Lebanese Association for Taxpayers’ Rights.
The Anti-Corruption Commission, as proposed, complements several anti-corruption laws, and is invested with investigatory and precautionary powers allowing it to examine potential corruption cases and ensure that suspects are held accountable if proven guilty. The composition of the commission’s six members and the way they are appointed is noteworthy, as the selection process (see Article 6) partly limits interference in that process from the country’s political elites, whether in parliament or in the cabinet.
However, several misgivings persist. For instance, the lengthy (six years) and uninterruptible mandate of the commission’s members should be addressed with caution, as there is no criterion for dissolving the commission, and no guarantee that the members will form a cohesive and effective unit for a full six years. Furthermore, given that the commission is financially autonomous, this could mean reliance on donor agencies for funding, which would not bode well for its long-term viability. More problematic than the reliance on donor funding is the fact that the Draft 2021 Budget Law prepared by the Ministry of Finance in January 2021 contains some provisions that raise concerns that the commission’s financial autonomy will be limited. The draft budget law proposes amending Article 15 of the Anti-Corruption Commission Law to stipulate that the commission’s annual budget will fall under the prime minister’s office, which may negatively impact funding for the commission. Since, according to the literature, one of the key characteristics of effective anti-corruption commissions is adequate financing and human resources, and given the current financial collapse Lebanon is experiencing, and the fact that the Lebanese state is virtually bankrupt, there are no guarantees that the commission will be able to rely on the requisite funding to function effectively and hire qualified staff, particularly should its budget be funnelled through the prime minister’s office as the Draft 2021 Budget Law stipulates.
Given the current financial collapse Lebanon is experiencing, and the fact that the Lebanese state is virtually bankrupt, there are no guarantees that the commission will be able to rely on the requisite funding to function effectively.
In addition to these potential shortcomings, there is uncertainty over whether the commission itself will be capable of fulfilling its purpose. For example, in response to the question of whether the Anti-Corruption Commission Law would be implemented, legislator Paula Yaacoubian responded that ‘[y]ou can’t ask a corrupt class to form an anti-corruption committee […] No one is going to combat themselves’. Shakib Qortbawi, a former minister of justice, expressed concern that Law No. 175 might end up suffering the same fate as the 2012 law that banned smoking in indoor spaces – legislation that is quasi-unanimously ignored, and often brandished as an example of the poor implementation of laws in the country. This uncertainty towards the potential ineffectiveness of the Anti-Corruption Commission is not unwarranted. It is worth bearing in mind that, as per Article 6 of the law, the minister of state for administrative reform is tasked with proposing the names of three candidates, from whom one is chosen by the cabinet, thus giving the executive branch a direct hand in the six-member commission. In addition, the Banking Control Commission proposes the names of three candidates from whom one is chosen by the cabinet. The Banking Control Commission, one of the Banque du Liban’s departments, is ‘an administratively independent body […] composed of five members who are appointed by the Council of Ministers for a five-year term’ and whose function is to oversee the proper functioning of financial institutions in Lebanon ‘in close coordination with the Governor of the Central Bank’. Yet, the members of this Banking Control Commission are proposed by the Association of Banks in Lebanon, a lobby group representing commercial banks in Lebanon. The political class of Lebanon and the banking sector are inextricably intertwined, and it is common to see the names of prominent politicians or their relatives and associates appear on the boards of the country’s major banks. Thus, giving the Banking Control Commission a say in the composition of the Anti-Corruption Commission is akin to giving the Association of Banks – and thus segments of the political class – a seat in the Anti-Corruption Commission. This represents, at the very least, a potential conflict of interest.
Despite the stipulation contained in Article 6 of the Anti-Corruption Commission Law that the entities responsible for selecting the commission’s members must submit their chosen names within three months of the law’s publication in the Official Gazette, the commission has yet to be established as of June 2021. Given the explosion that destroyed the Port of Beirut on 4 August 2020 (see Annex, Box 3), the resignation, in its aftermath, of the Hassan Diab government, and the subsequent escalation of the COVID-19 pandemic in Lebanon, it is not surprising that the selection and election of members of the National Anti-Corruption Commission appear to have been put on the back burner by both the caretaker government and the entities responsible for submitting names of candidates to the Council of Ministers. In late December 2020, the head of the High Judicial Council released a statement calling on all judges to attend an election due to take place on 23 January 2021 to elect the two members of the commission. However, as the coronavirus pandemic intensified further in early 2021, these elections were postponed and finally took place on 12 June 2021. According to Nizar Saghieh, executive director of the Legal Agenda, one of the two winners is a judge known for her integrity and is backed by the Judges’ Association, a bloc within the judiciary composed of judges advocating for judicial reform and the independence of the judiciary.
Globally, there are several examples of the establishment of anti-corruption commissions that have come to be perceived as little more than ‘paper tigers’ in practical terms. In Kenya, for example, an anti-corruption commission was established in 2003; its funding was reliant on the government, however, and its director was appointed by the country’s parliament. Despite investigating several corruption cases and submitting findings to the relevant judicial authorities, the commission was widely felt not to have been given due weight by Kenya’s judicial authorities and executive branch, and entrenched corruption continues in the country. The Kenyan example illustrates how a lack of political will to fight corruption, coupled with a non-independent judiciary and funding that is tied to the government, can render an anti-corruption commission ineffective.
It remains to be seen what course the Anti-Corruption Commission in Lebanon will take. Will it develop along the lines of the Singapore and Hong Kong models, or succumb to political pressures and challenges, as in the Kenyan model? Given the long history of Lebanon’s deep-rooted and systemic corruption, and the apparent lack of political will to address corruption in the country, it would not be a surprise if it comes to resemble the latter more closely than the former.
The 2020 Law on Illicit Enrichment: A tool for the settling of political scores
A further obstacle to effective anti-corruption laws is when the laws themselves have been designed in a way that hinders their own implementation, as has long been the case with Lebanon’s laws on illicit enrichment. Article 20 of the UNCAC states that signatories should pass laws that criminalize illicit enrichment, defined as ‘a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income’.
Unlike much of the current body of anti-corruption legislation detailed above, Lebanon’s laws on illicit enrichment date back to the early days of the post-independence era. In 1953, a law on illicit enrichment was passed, followed a year later by a law on financial disclosures. Both laws were eventually merged in 1999 into Law No. 154 on Illicit Enrichment. Given that such a crucial law has existed for many decades, one might question why acts of bribery have been so common throughout Lebanon’s history.
According to one former head of the Constitutional Council, Law No. 154 was essentially designed to be unimplementable. Closer scrutiny of the law’s provisions indicates that this is the case. To begin with, the law stipulated that public sector employees submit only two financial disclosures (at the start and end of their term) to the central bank. Given that public sector employees usually spend decades in their posts, the detection of any anomalies or illicitly acquired funds based on only two financial disclosures, presented many years apart, is nearly impossible. In addition, the law did not specify the nature of the assets to be disclosed; it made no reference to the interests accrued, royalties or debt repayments that civil servants might amass from outside their work in the public sector.
Perhaps the most egregious aspect of the 1999 law, and the aspect that made it virtually unimplementable, was the system in place for submitting complaints. Article 10 of the law stipulated that any aggrieved individual seeking to lodge a complaint must submit it alongside a bank guarantee of 25 million Lebanese pounds (approximately $16,500) – either to the public prosecutor, or directly to the first investigative judge in Beirut. The complaint had to be accompanied by proof that the employee suspected of illegal enrichment had actually committed a crime and profited from it. Such a large financial guarantee, which would be beyond the means of a large proportion of citizens, as well as the difficulties entailed in obtaining proof of criminal activity, served intrinsically to render potential complainants powerless to proceed. More problematically, Article 15 of the 1999 law stipulated that, should the complaint be unsuccessful and the complainant found to have acted in bad faith, the latter would be fined a minimum of 200 million Lebanese pounds (equivalent to roughly $132,600) and imprisoned for a period of between three and 12 months. Given the difficulties in obtaining actual documentation proving an employee’s illicit enrichment, it was easy for the charge of ‘acting in bad faith’ to be lodged against potential complainants or whistle-blowers.
In June 2008, a new draft law on illicit enrichment, which was meant to replace and improve on the deficiencies of the 1999 law, was submitted to the Lebanese parliament, and after countless meetings and discussions between different parliamentary committees and subcommittees, Law 189 on Financial Interest Disclosure and Punishing Illicit Enrichment (hereafter the 2020 Law on Illicit Enrichment) was passed by parliament on 30 September 2020, and published in the Official Gazette just over two weeks later, on 16 October. The 2020 Law on Illicit Enrichment is a significant improvement over the 1999 law in virtually all its aspects. However, given the improbable scenario that Lebanon’s political elites will hold themselves accountable, it is doubtful whether this law will end up being applied to them. Indeed, there are concerns that the law could potentially be utilized in part by the same political elites to settle scores among themselves, as will be highlighted below. The main provisions of the 2020 Law on Illicit Enrichment are set out below in Table 8.
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1
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Based on the UNCAC definition, ‘public official’ is described as any person, elected or appointed, paid or unpaid, performing any kind of public function, be it directly for the state or for a company owned by the state. The definition excludes public officials in the fourth rank and below – i.e. the lowest ranks in the public administration – and lecturers in public schools, public vocational and technical institutes and the Lebanese University.
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3
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Financial disclosure forms must be submitted once every three years to the National Anti-Corruption Commission detailing all movable and immovable assets in the country and abroad, as well as all sources of income and shares owned in for-profit ventures or positions held in non-profit organizations. Public officials who neither submit their financial disclosures nor provide any excuses will be arbitrarily dismissed from their functions, while late submissions will incur a penalty equivalent to 10 per cent of the official’s salary.
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9
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Public officials who submit fraudulent financial disclosures are punished with a prison sentence ranging from six to 12 months and a fine ranging from 10 to 20 times the minimum wage.
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10
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‘Illicit enrichment’ is defined, in accordance with the UNCAC definition, as any noticeable increase in wealth in a public official’s financial disclosure that cannot be justified by their regular salary.
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12
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Illicit enrichment-related complaints are to be submitted to the National Anti-Corruption Commission without a fee, and may or may not be accompanied by evidence documenting illicit enrichment. The relevant judicial authorities can immediately demand that the bank accounts and assets of the suspected official be frozen for a renewable period of six months.
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14
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Public officials found guilty of engaging in illicit enrichment are punished by a prison sentence ranging from three to seven years, as well as by a fine ranging from 30 to 200 times the minimum wage. The illicitly acquired funds are to be either returned to the rightful owners, or confiscated by the state.
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Source: Law No. 189 on Financial Interest Disclosure and Punishing Illicit Enrichment, published on 22 October 2020 in Issue 41 of the Official Gazette. Available on the website of the Civil Service Board.
The 2020 Law on Illicit Enrichment is a significant improvement over its predecessor for several reasons. Public officials must now submit detailed financial disclosure forms once every three years, which should, theoretically, make it much easier to detect instances of illicit enrichment. In addition, the process of submitting complaints is no longer defective by design, and potential whistle-blowers no longer have to pay exorbitant fees or provide evidence that criminal activity has taken place when submitting a complaint. On 16 November 2020, Prime Minister Hassan Diab issued Circulars 39 and 40, which called on all public officials to abide by the 2020 Law on Illicit Enrichment and submit their financial disclosure forms within the deadlines and to the relevant authorities as stipulated by the law. However, complications remain in the way.
Shortly after the 2020 Law on Illicit Enrichment was ratified by parliament, controversy was generated when several media outlets repeated some of the claims made by MPs stating that the president, the prime minister, ministers, and MPs were to be exempted from the law’s provisions, and that a constitutional amendment would be necessary in order for the law to apply to them. In fact, the law does not explicitly state whether these high-level officials are exempt or not, and determining whether they are will require a judicial interpretation.
Article 70 of the constitution states that parliament can impeach the prime minister or another minister, if guilty of high treason or breach of duty, by means of a two-thirds majority vote.
While the situation regarding the president is clear (Article 60 of the Lebanese Constitution states that the president can only be accused and tried for ‘ordinary crimes’ by a two-thirds majority vote in parliament, after which the president would face trial by the Supreme Court for the Prosecution of Presidents and Ministers), the situation regarding the Council of Ministers is somewhat hazier. Article 70 of the constitution states that parliament can impeach the prime minister or another minister, if guilty of high treason or breach of duty, by means of a two-thirds majority vote. In order to determine whether the ministers can be tried in front of ordinary courts – in other words, whether the illicit enrichment law applies to them – it must first be determined whether the original drafters of the constitution intended to give the prime minister and ministers the same kind of immunity enjoyed by the president, and whether engaging in illicit enrichment can be considered a ‘breach of duty’. Unlike Article 60, Article 70 does not make a specific reference to ‘ordinary crimes’: hence, should the prime minister or another minister commit an ordinary crime, they would not enjoy the same particular immunity as the president. Article 11(a) of the 2020 Law on Illicit Enrichment stipulates that engaging in illicit enrichment is considered an ordinary crime, to be tried in front of civil courts; hence, the crime cannot be considered a breach of duty, and the minister implicated cannot be tried for it by parliament. As for MPs, they only enjoy immunity during active parliamentary sessions as per Article 40 of the constitution, and can be pursued for engaging in illicit enrichment outside of such sessions.
However, even if such a judicial interpretation does prove that Lebanon’s highest political officials, bar the president, can be tried for engaging in illicit enrichment, it is likely that MPs or ministers who were thus accused would argue (in a Machiavellian manner), that an amendment to the constitution is necessary for trial before ordinary courts – without actually specifying which articles must be amended.
In early December 2020, just two months after the adoption of the new law, several cases of alleged illicit enrichment emerged. According to a claim made by LBCI, a local TV channel, a lawyer representing the Ministry of Justice discovered that 17 officials in the Ministry of the Displaced had, since 2000, amassed enormous real-estate assets that could not in any way be justified by their salaries. The case was transferred to the prosecutor general, whose office was reported in early 2021 to be studying how best to proceed – as this was the first occasion of the 2020 Law on Illicit Enrichment being applied – while caretaker Minister of the Displaced Ghada Shreim praised the judicial authorities for acting against corruption and called on them to speed up the process.
In addition, concerns over wealth alleged to have been acquired by eight senior former military officials have been raised in recent months. In September 2020, during a political talk show on another local TV station, OTV, a lawyer revealed what appeared to be a bank document, dating from 2015, which raised concerns about the finances of a former senior army officer. An investigation, undertaken by a military tribunal prosecutor following the revelation, escalated to include seven other senior military officials. All eight former officers have denied the charges brought forth against them. However, after the case had ‘shuffled through the labyrinth of Lebanon’s widely criticized judiciary’, the country’s banking secrecy laws, coupled with the lockdown imposed in early January 2021 due to a spike in cases of COVID-19 in the country, appear to have halted further progress in the case, with the aforementioned lawyer expressing the view in late January that the case was ‘dead’.
While these recent cases can clearly be perceived – at least at first glance – as positive developments in the fight against corruption in Lebanon, there are several potential caveats. The fact that the 2020 Law on Illicit Enrichment allows any individual to submit a complaint against a public official without having to provide evidence or proof of wrongdoing could lead the judiciary to ‘drown’ in illicit enrichment cases. In addition, concerns have been raised that complaints might potentially be made about a public figure at least partly on the basis of that person’s political affiliations: as such, if it were to be utilized even partly as a result of political considerations, the law might be rendered less effective.
There is much to commend in the 2020 Law on Illicit Enrichment. The financial disclosure forms that public officials must submit are exhaustive and must be submitted periodically, which allows for investigations that are better able to uncover cases of illicit enrichment. However, the country’s highest public officials – namely the president, the cabinet and MPs – may well remain outside the purview of the new legislation, while there are concerns that the future utilization of the law may be motivated in part by political considerations. While the impact of the law is difficult to judge at this early stage, it is not apparent whether it will be able to curb corruption effectively – particularly if it were to be used to satisfy political motives.
The National Anti-Corruption Strategy
The fact that Lebanon’s ruling elites are custodians of the country’s broad anti-corruption strategy constitutes another major hurdle to overcome in its implementation. Governments that are intent on fighting corruption often adopt strategies that provide an overarching framework to guide anti-corruption efforts. Such strategies include a diagnosis of the problems leading to corruption, and a set of concrete recommendations that the executive, legislative and judicial branches must take into account in order to stamp out corruption in the public sector. Governments that adopt such frameworks usually have the political will to fight corruption effectively, and they make good governance the norm in their country’s public sector. In May 2020, Lebanon became armed with such a structure, in the form of the National Anti-Corruption Strategy 2020–2025. Yet, given the lack of political will to implement anti-corruption laws and ensure good governance, and the fact that the country’s political elites are the ostensible custodians of the strategy – the same political elites who are unlikely to hold themselves accountable – the prospects for the success of Lebanon’s anti-corruption strategy are grim.
The roots of Lebanon’s current anti-corruption strategy can be traced back to December 2011, when the incumbent prime minister, Najib Mikati, passed Decisions No. 156 and 157, the first of which established a Ministerial Anti-Corruption Committee headed by the prime minister and comprising a number of other ministers, and the second establishing a technical committee to support the ministerial committee. The technical committee was headed by the minister of state for administrative reform and consisted of representatives from several public bodies. These two committees were tasked with preparing an anti-corruption strategy, with the assistance of the UN Development Programme (UNDP).
Between 2012 and 2017, sub-committees for specific aspects of the strategy were formed to assess gaps within existing Lebanese anti-corruption laws and evaluate them in the light of international standards. Interviews and meetings were held with public officials and representatives from the private sector and civil society, and on 27 April 2017 a draft of the strategy was presented to the Ministerial Anti-Corruption Committee, which requested an executive plan. OMSAR, in collaboration with UNDP, prepared an executive plan detailing key objectives. On 24 April 2018, the strategy and its executive plan were presented at a conference hosted by the incumbent Minister of State for Administrative Reform, Inaya Ezzedine, who described the strategy’s implementation as the first step towards rebuilding trust between Lebanese citizens and the state. However, with parliamentary elections scheduled to take place a few weeks later in May, neither document could be formally adopted by what was then a caretaker government. The strategy and its executive plan were further refined by OMSAR during the terms of the subsequent two governments, before being formally adopted by the Council of Ministers on 12 May 2020, hence satisfying one of the pledges made by Prime Minister Hassan Diab in a ministerial statement delivered three months earlier, in February.
The National Anti-Corruption Strategy and its executive plan constitute a comprehensive document that serves as a framework for anti-corruption efforts in Lebanon in the short, medium and long terms.
The first section provides a definition of corruption by referencing the UNCAC and the Anti-Corruption Commission Law, then presents a complex, multidimensional diagnosis of corruption in Lebanon, illustrated with specific instances and international indicators to highlight its widespread character. In its diagnostic section, the strategy lists political factors (political sectarianism, related governmental malpractices and lack of electoral reforms), economic factors (the bureaucratic reinforcement of bribery in order to access basic services), social factors (societal views on corruption that tend to see the phenomenon as acceptable), legislative factors (the improper implementation of anti-corruption laws, and major gaps in existing legislation) and administrative factors (the outdated and overly hierarchical nature of the public sector; the shortage of skills among public officials; the absence of effective monitoring and oversight bodies due to underfunding and understaffing; the low wages paid to public officials, which trigger the solicitation of bribes; and the absence of a merit-based system of appointment and promotion in the public sector).
The second section details the three goals of the strategy: (1) to enhance transparency, (2) to enforce accountability, and (3) to stop impunity. These goals are translated into seven outcomes, each with measurable outputs. These are summarized in Table 9.
Source: Government of Lebanon (2020), ‘National Anti-Corruption Strategy 2020–2025’, 12 May 2020.
Despite being a long time in preparation, the strategy is a useful framework for guiding anti-corruption efforts in the country. It creates a space for anti-corruption advocates – be it in the public sector or civil society – to come together and ensure that it is properly implemented through the monitoring of the executive plan. It provides an accurate diagnosis of the problem, and a functional vision for the future of Lebanon.
While the National Anti-Corruption Strategy is a very comprehensive document with a clear executive plan, many are worried (with justification) that it will remain nothing but ‘ink on paper’, especially given Lebanon’s desultory track record regarding the implementation of governmental strategies that promise to make grand changes in the public sector. As far back as April 2018, the release of the first version of the National Anti-Corruption Strategy was met with cynicism, as it was difficult to fathom how a political class enmeshed in corruption would actually implement an anti-corruption strategy and hold itself accountable.
One may justifiably continue to question the extent to which a political class that is widely perceived to have turned the Lebanese state into a vehicle for self-enrichment, nepotism and embezzlement, would be willing to properly implement an anti-corruption strategy. Furthermore, an analysis of the similarities between the original (2018) and revised (2020) versions of the strategy concluded that the 2020 strategy may have been adopted less as a reflection of a genuine political will seeking to stamp out corruption, and more as a ‘carrot’ to be dangled in front of the international community to attract foreign loans and grants. It may also have been adopted in an attempt to quell public anger following the uprisings of October 2019 and give the impression that anti-corruption efforts are being undertaken.
The resignation of the government of Prime Minister Hassan Diab in August 2020 is a blow to the National Anti-Corruption Strategy. Not only was that government the one to formally adopt the strategy, but its resignation also meant that the strategy lost a firm supporter in the shape of Dimyanos Kattar, the former environment minister and minister of state for administrative reform. Kattar had pushed for the strategy’s formal adoption by the Council of Ministers and, following its adoption, had made several efforts to meet with CSOs as well as student representatives to highlight the government’s commitment to work with the public towards realizing the strategy’s implementation.
In the absence of Kattar’s intra-governmental support for the 2020 strategy, one may wonder whether the next government to be formed will be as adamant about fighting corruption and ensuring that the strategy is properly implemented.