1
IMMUNITY PROTECTIONS
FOR HIGH-LEVEL PUBLIC OFFICIALS
By Stephanie E. Trapnell and Ayompe Ayompe
June 12, 2013
THE WORLD BANK
Public Accountability Mechanisms (PAM) Initiative
Outline
2

Public Accountability Mechanisms
De
jure (in law) measurement
De facto (in practice) measurement

Immunity protections data
Findings
of in law assessments
Conclusions
3
Public Accountability Mechanisms
The PAM Initiative brings forward detailed and
regularly updated data on efforts to enhance
the transparency and accountability systems in a
sample of 90 countries worldwide.
http://www.agidata.org/pam
Public Accountability Mechanisms (PAM)
de jure data
4
Financial disclosure
(interests, assets, income)
217 indicators
2008, 2012
Immunity protections
56 indicators
2013
Freedom of information
36 indicators
2010
Conflict of interest
restrictions
128 indicators
2012
Outputs of de jure data
5




Data, including qualitative and quantitative
datasets, country profiles, and descriptive statistics
Analytical publications
Library of laws
Country reports on enabling governance
environment (development since Fall 2012)
All data and materials are available online to both
internal and external users
Publications
6

Design of public accountability mechanisms






Public Office, Private Interests: Accountability through Income and
Asset Disclosure
Income and Asset Disclosure: Country Illustrations (forthcoming)
Financial Disclosure Systems: Declarations of Interests, Income and
Assets
Freedom of Information Systems: Access, Rights, Openness
Conflicts of Interest: Restrictions and Disclosure
Implementation of public accountability mechanisms


Financial Disclosure Systems: Roadmap for Implementation/
Performance Assessment
Freedom of Information Systems: Roadmap for Implementation/
Performance Assessment
Primers on design and implementation
7
http://www.agidata.org/pam
8
De facto data collection efforts
9

Development of indicators
12 case studies on financial disclosure systems
 Review of measurement practices in transparency initiatives


Refinement of indicators
Online survey targeting government officials in key positions
in financial disclosure systems
 Freedom of information indicators presented at international
conferences


Summer 2013: Proposed scale-up

Local consultants conduct on-site interviews with government
officials, upload data with new online platform, Indaba
Challenges of collecting data on
Immunity protections
10





Legal terminology
Informal approaches to immunity
Many provisions require legal interpretation within
specific cases/contexts.
Comparability of data across countries when case
law impacts applicability
Different approaches are not the same: revocation
vs. impeachment
11
Immunity Protections in-law data
Legal Frameworks
Public Accountability Mechanisms, 2013
http://www.agidata.org/pam
What is an Immunity Protection?
12


Immunity protections (IM) refer to a situation in
which public officials are legally protected from
prosecution for duties performed in the capacity of
the state.
The operating principle of the legal framework of
immunity protections is intended to strike a balance
between two important interests:
the protection of public officials from intimidation or
attack for actions that occur in the course of their duties
 the protection of citizens from corruption and the abuse
of public office for private gain.

13



Coverage: High-level public officials
Head of State
Ministers/Cabinet Members
Members of parliament
Coverage of high-level public officials
14
The data collected on
the legal frameworks
of immunity protection
for high-level of public
officials highlight the
widespread use of
guaranteed immunity
protections in nearly
all countries of study.
The figure highlights a
consistent pattern
across countries of
different income levels:
that Members of
parliament enjoy
immunities far more
often than members of
the executive branch.
Legislation vs Constitutional protections
15


Immunity protections appeared to be more
clearly specified in internal legislation of a
particular governing body (parliament) than in
constitutions.
Sweeping or blanket immunity protections that
do not distinguish between civil and criminal
protections are often present in constitutional
laws.
Type and Scope of immunity
protections
16


Non-liability immunity often refers to proceedings
concerning votes cast or opinions expressed during
officials’ term or mandate in office.
Inviolability refers to protection from arrest, search,
investigation, detention, criminal prosecution including
being brought before the courts in case of offences
committed without the permission of a specified
authority.
Distinguishing between the scope of
protection afforded to public officials
17
Absolute immunity operates as a complete
bar to relief, regardless of whether the act
falls within or out of official functions or the
official's motive for performing official duties
 Qualified immunity protects public officials
from being sued for damages unless they
violated “clearly established” law.

Immunities for Head of State
18
Criminal
protections are
more likely than
protection from
civil liability, and
particularly so in
higher income
country brackets.
The disparity
between nonliability (civil)
and inviolability
(criminal)
guarantees for
heads of state is
most striking as
GNI per capita
rises.
Immunities for Members of Parliament
19
MPs enjoy both
types of
immunity at
similar coverage
more than
members of
executive branch.
The data for
lower income
classifications
signifies the
presence of
sweeping or
blanket immunity
laws that do not
distinguish
between civil
and criminal
protections.
When immunity protections do not
apply….
20

Exceptions to immunity laws should apply in
specific circumstances and be well-specified.
 For
conduct making officials liable in civil lawsuits, e.g.,
defamations, slander, intended wrongful acts.
 When officials are caught in the act of committing a
criminal offense, i.e., in flagrante delicto
 For serious violations of criminal law that prevent
immunity protections from applying in the first place
Exemptions to immunity protections when
caught in the act of committing a crime
21
Across all
income
classifications,
exemptions to
immunity
protections in
cases when
caught in the
act of
committing a
crime,
appeared to
be more
clearly
specified in
law for MPs
than Head of
state.
Immunity protections do not apply in the
first place for serious crimes
22
Contrary to the
data in flagrante
delicto, across
all income
classifications,
cases where
immunity
protections do
not apply at all
(i.e. felony,
serious offense
against the
state), appeared
to be more
clearly specified
in law for Head
of state than
MPs.
Limited Duration of Immunity
Protections
23

Immunity protections should only apply while
public officials are in office.
Limited duration of immunity
24
No more than
70% of countries
in the sample
specify clear
durations by law
even in the higher
income
classifications.
Unclear
specification
allows room for
interpretation of
the law that may
compromise the
intent of
balancing
protection of
officials with
protection of
citizens through
clear legal
doctrine
Revocation of immunity vs.
impeachment
25

Revocation of immunity or impeachment
are measures to prevent public officials from
benefitting from immunity protections.
Revocation of immunity vs.
impeachment
26


Revocation of immunity refers to the situation where
the immunity protections accorded to public officials
are lifted in specific circumstances to allow for a
public trial as an ordinary individual for alleged
offences committed
Impeachment of public officials is the act (usually by
legislature) of calling for the removal from office of a
public official, accomplished by presenting a written
charge of the official’s alleged misconduct.
Coordination requirements for
revocation of immunity
27
The figure
highlights the
propensity
for higher
income
countries to
require
coordination
between
more than
one
authority for
revocation to
occur.
Conclusions
28




Public officials’ non-liability protections are not
intended to bar the right of individuals to seek redress;
governments may be held liable for these actions,
depending on the legal context.
Qualified immunity, with clearly established protections
and conduct, is preferable to absolute immunity.
Separate legislation/regulations are a more effective
vehicle for immunity protections, as these laws can be
changed more easily than constitutional law.
Revocation of immunity and impeachment are intended
to serve different purposes; they should not be
considered similar approaches to sanctioning officials.
29
Thank you!
For more information please contact:
Stephanie E. Trapnell, strapnell@worldbank.org
Ayompe Ayompe, aayompe@worldbank.org
IM findings are based on research and analysis performed by Aisuluu Aitbaeva,
Ayompe Ayompe, Daniel W. Barnes, Afroza Chowdhury, Gary J. Reid, Joel Singerman,
and Stephanie E. Trapnell.