Are We Underestimating the Extent of Bribery in the World?

The astounding figure Richard Rose and Caryn Peiffer report in their new book, Paying Bribes for Public Services, that almost one quarter of world’s population or 1.6 billion people, recently paid a bribe would suggest the answer to the question above is a resounding “No.”  The 1.6 billion figure sounds so fantastically large that the suspicion arises that it is one of those gauzy numbers conjured up using shaky assumptions and questionable sources to capture headlines rather than advance learning.  Yet recent research by the World Bank’ Art Kraay and University of Maryland Professor Peter Murrell shows that, if anything, the Rose and Peiffer 1.6 billion number is low.

Their figure is based on the most solid of evidence: interviews by phone or in-person where respondents are asked whether they had to pay a bribe to obtain a public service.  Transparency International’s 2013 Global Corruption Barometer, a main source for the 1.6 billion number, is an example.  Surveyors first ask respondents if they or anyone else in their household has had any contact in the past 12 months with anyone associated with any of eight government services: i) the education system, ii) the judiciary, iii) medical or health services, iv) the police, v) registry and permit services, vi) utilities, vii) tax collection or, viii) land service.  If the answer is yes, the surveyor then asks:

In your contact or contacts have you or anyone living in your household paid a bribe in any form in the past 12 months?    

What could be a more reliable way to gather evidence of bribery?  Instead of asking what people think about bribery or what their perceptions of bribery or corruption are, they are asked about their own personal experience, or that of close relatives, with the crime of bribery.  The rub comes with the last phrase in the preceding sentence: the respondent is being questioned about “the crime of bribery.”

Continue reading

Guest Post: Targeted Sanctions and Corruption–Legal Obstacles to a Magnitsky Act for the EU

Anton Moiseienko, PhD candidate at the Criminal Justice Centre, Queen Mary University of London, contributes the following guest post:

So-called targeted sanctions—imposing travel restrictions on, or freezing the assets of, a select group of people—remain in vogue as an instrument of foreign policy and as a supplement to criminal justice in many areas, such as counterterrorism, and yet targeted sanctions have not been widely used in counteracting corruption. The United States, however, is a notable exception, with its Presidential Proclamation 7750, which authorizes the US Secretary of State to issue entry bans against corrupt foreign officials (subject to a caveat that such determinations must be informed by US national interests), and the Magnitsky Act of 2012, enacted by the US Congress in response to the death of Sergei Magnitsky, a Russian lawyer-turned-whistleblower, in a Moscow prison after he reported the embezzlement of US$230 million by high-ranked law enforcement officers. Strictly speaking, the Magnitsky Act is a human rights law rather than an anticorruption law. It authorizes the US President to blacklist (1) the individuals responsible for the prosecution and death of Mr. Magnitsky, and (2) those responsible for “gross violations of internationally recognized human rights” if committed against the persons trying to expose the illegal activity of Russian officials or against human rights activists. Yet pervasive corruption is at the heart of Magnitsky’s case, as it appears that a ring of corrupt officials was complicit in his death.

The European reaction to the Magnitsky Act was ambivalent. The OSCE Parliamentary Assembly adopted a non-binding resolution in 2012 calling upon member states to deny entry to, and freeze the assets of, the individuals on the US Magnitsky List––but to little effect. In contrast, a report by the Parliamentary Assembly of the Council of Europe (CoE) deemed US-style sanctions to be “a means of last resort” and advised against them. But despite the lack of governmental action, the public debate in Europe is not over (see, for example, here and here). With EU sanctions against Russia expanding continuously, it may be time to revisit the European debate on whether the EU should draw up its own Magnitsky List, or perhaps adopt a more general policy on targeted anticorruption sanctions.

If the EU or its individual member states proceed with Magnitsky List-style sanctions, they will have to reckon with their human rights laws—including the EU Charger of Fundamental Rights and the European Convention on Human Rights. The most important potential legal difficulties are as follows: Continue reading

An International Success, Applied in the US: The OECD Law Enforcement Group as a Model for US State Prosecutors

In the United States, the federal government plays a lead role in prosecuting corruption at the state and local level–and many anticorruption advocates and scholars (both in the US and internationally) credit this federalization of anticorruption enforcement with getting rampant local corruption under control. Indeed, the DOJ’s Public Integrity Section was founded in 1976 precisely because it was thought that federal enforcement efforts were required to fill the vacuum created by the inability or unwillingness of state and local law enforcement authorities to bring cases against government officials in their own communities.

Leaving aside for the moment the substantial federalism and sovereignty concerns that have been leveled against this approach, it seems that the federalization of state and local corruption prosecutions worked, and contributed to a significant reduction in corruption across the United States. For this reason, anticorruption advocates frequently suggest that the US experience with federal enforcement should serve as a model for the international community. For example, Judge Mark Wolf’s proposal for an International Anticorruption Court explicitly draws on the US approach, and was likely influenced by Judge Wolf’s personal experience as a federal prosecutor of state and local officials.

I would like to propose the reverse: The United States should take a page out of the international enforcement playbook to improve state-level prosecution of state and local corruption, by implementing something like the OECD Anti-Bribery Convention’s closed-door meetings of law enforcement officials, but for US state-level prosecutors. Here’s why: Continue reading

Who Calls the Shots?: Boko Haram and the Legacy of Military Leadership in Nigeria

When Boko Haram operatives attacked a Nigerian military outpost near the village where I lived in northern Cameroon in 2011, locals condemned the assault. But they admitted that something had to be done about soldiers who, they said, regularly apprehended people and held them for ransom. Boko Haram’s tenor and tactics have grown increasingly radical and destructive since, but the early perceptions of the group highlight, in part, the relationship between corruption and instability. In that case, alleged military corruption directly contributed to violent conflict. Indeed, many analysts have drawn connections between government corruption and the rise of Boko Haram (see here, here, and here).

Transparency International has weighed in on the situation, as well, detailing how corruption has both continued to fuel instability and hampered the response to Boko Haram attacks. TI calls on the Nigerian government to “speak out against corruption and … invite civil society organizations to take part in developing an anti-corruption strategy.” Each course requires significant political will. Nigerian leaders’ historic relationship with the military may do a lot to explain why the requisite political commitment has failed to materialize within past administrations. Continue reading

“Combating Grand Corruption: Is International Law the Answer”: The Debate Continues at Harvard law School

As readers of this blog know, U.S. Federal District Judge Mark Wolf has been vigorously advocating for the creation of a new International Anticorruption Court (IACC), modeled on the International Criminal Court (ICC), that would have jurisdiction over grand corruption committed by senior national leaders and their associates. His proposal has attracted a great deal of attention, including a critique that I posted a little while back. The proposal also relates to more general questions about the appropriate role for international law and institutions in fighting grand corruption.

Last week, the Harvard Law and International Development Society (LIDS) organized a fantastic symposium on “Combating Grand Corruption: Is International Law the Answer” to tackle some of these issues. Judge Wolf and Luis Moreno Ocampo, who served as the first prosecutor at the ICC, gave opening and closing remarks.

Fortunately the conference was recorded; here are the links to Part One and Part Two. The whole thing is worth watching, but for those of you who are particularly interested in seeing Judge Wolf and I square off in person, his opening remarks in support of the IACC proposal can be found from 4:26-24:43 of Part One, my critique is at Part One, 1:32:20-1:45:52, and his closing remarks (which include but are not limited to a rebuttal of my critique) are at Part Two, 1:11:14-1:30:12.

Other highlights include:

  • Mr. Moreno Ocampo’s opening and closing remarks (Part One, 25:03-42:37 and Part Two, 1:06:18-1:11:06)
  • Akaash Maharaj, Executive Director of the Global Organization of Parliamentarians Against Corruption, on the range of possible international legal responses to grand corruption (Part One, 1:17:00-1:32:07)
  • My Harvard Law School colleague Alex Whiting, former Prosecutions Coordinator at the ICC, on what we can learn from the ICC experience for the proposed IACC (Part One, 1:46:00-1:58-40)
  • Charles Duross, former head of the FCPA Unit at the U.S. Department of Justice, on how the FCPA helps combat grand corruption and what we could do to make it more effective in doing so (Part Two, 3:33-18:17)
  • GAB’s very own Rick Messick on more practical, achievable measures that could make a difference in reducing grand corruption (Part Two, 18:35-29:39)
  • Robert Leventhal, Director of Anticorruption Programs and Governance Initiatives at the U.S. State Department, on measures that the U.S. government is undertaking that make it harder than ever to be a kleptocrat (Part Two, 29:47-42:40)

Anticorruption Policymaking: The Critical Role of Information

“. . . [S]ound policies require good information – about the existence, nature, and causes of a problem, about the costs and benefits to the affected public of various possible solutions to the problem, and about the effectiveness of current policies.” Peter H. Schuck, Why Government Fails So Often: And How it Can Do Better. Princeton: Princeton University Press, 2014, p. 162.

Few axioms of policymaking would seem as self-evident as the one above, and few are so often observed in the breach.  Developing the knowledge required for good policymaking can be expensive, time-consuming, and intellectually challenging.  At the same time, policymakers are often under pressure to act; the problem is urgent; the public demands a solution, and they want to address the nation’s ills, or at least appear to address them, quickly.  So policy is made on the basis of incomplete data, hunches, intuition, and plain guesswork. The unfortunate result, as the title of Schuck’s book advertises, is almost always a policy failure.

Anticorruption is an area that seems particularly prone to policymaking on the fly.  In 2007 the U4 Anticorruption Resource Centre examined different countries experiences developing and implementing a national anticorruption strategy.  A major finding: “information, knowledge, and understanding of corruption continue to be a great weakness for the formulation and prioritization of anticorruption initiatives . . . .”  A more recent review of national anticorruption strategies Matthew and I have underway for the UNODC suggests matters have changed little in the intervening years. Countries as different as India, Bosnia-Herzegovina, and Thailand have constructed detailed, complex strategies for combating corruption on a thin to non-existent knowledge base.

Given the challenges of building a sound knowledge base for anticorruption policymaking, it is easy to understand why this critical step in the process is so often ignored. Continue reading

More Flagrant Abuse of CPI Numbers by People and Outlets that Should Know Better

As regular readers of this blog know, I’ve been (figuratively) pounding my fists on the table for a while now about various misuses and misinterpretations of Transparency International’s Corruption Perceptions Index (CPI), particularly in the context of misleading year-to-year comparisons (see here, here, here, here, here, and here). Perhaps I’m overemphasizing a relatively small issue, but it seems that the problem just won’t go away.

Case in point: A piece in last Friday’s New York Times by Carol Giacomo – a member of the New York Timeseditorial board – on recent developments in Indonesia. Most of the piece is a perfectly fine discussion of recent troubling events involving conflict between the Indonesian anticorruption agency (the KPK) and the Indonesian police.  But near the end, in discussing the broader implications of recent events for anticorruption efforts in Indonesia, Ms. Giacomo writes:

Transparency International, which annually rates countries on corruption in their public sectors, says Indonesia has improved its performance on the organization’s “corruption perception index” from 1.9 in 2003 to 34 in 2014[.]

Almost everything about that statement is flawed. Continue reading