Some Successful Initiatives by Civil Society to Prompt Corruption-Related Litigation

In an earlier post I promoted a conference on corruption the Oxford Institute for Ethics, Law and Armed Conflict and the Open Society Foundations’ Justice Initiative had planned for June 2014 to discuss ways civil society could stimulate corruption-related litigation, be it criminal investigations or private actions for damages.  The conference was held June 28 with some 100 individuals from civil society, academia, law firms, and governments attending, and one of the highlights was presentations describing successful efforts by civil society groups in India, Nigeria, France, and Switzerland.

Conference participants heard how in Switzerland the NGO TRIAL (Track Impunity Always) pushed Swiss prosecutors to initiate a case against a major Swiss firm arising from the corrupt acquisition of gold illegally smuggled out of the Democratic Republic of the Congo.  The group presented its findings to the Swiss federal prosecution service in the form of a denunciation penal which requires prosecutors to make a formal decision on whether to open a case.  A case was opened, a decision which the company unsuccessfully challenged, and an investigation is now underway. As Bénédict De Moerloose, one of TRIAL’s attorneys told conference participants, whatever the result of the investigation, the case has already stimulated a dialogue in Switzerland over corporate responsibility for human rights abuses and the need for new legislation and more vigorous enforcement of existing law.

Adetokunbo Mumuni, Executive Director of the Socio-Economic Rights & Accountability Project, a Nigerian NGO, described the case his group won against the Nigerian government in the Economic Community of West African States’ Court of Justice.  It arose from losses the federal government’s education funding agency suffered from corruption, losses which prevented it from fully funding education programs in ten Nigerian states.  Before the Community’s regional court the group argued that this amounted to a denial of rights to education guaranteed by two treaties the government was party to, the one establishing the West African Community and the African Charter on Human and People’s Rights.  The court agreed, and in its judgment ordered the government to cover the losses from corruption “lest a section of the people should be denied a right to education.”  The group is pressuring the government to implement the judgment; and it is also making use of it in its efforts to have those responsible for the losses prosecuted and the funds they stole recovered.

In France, the non-governmental organization SHERPA together with the French chapter of Transparency International have established an important precedent through litigation seeking to force French authorities to open a criminal investigation of the corrupt activities of leaders of Gabon, the Republic of the Congo, and Equatorial Guinea.  For years these individuals and their cronies had been buying French real estate, automobiles, and other French assets with the proceeds of corruption and for years French authorities had looked the other way.  SHERPA and Congolese and Gabonese diaspora groups, later joined by TI-France, filed a formal complaint with French prosecutors seeking an investigation.  When the prosecution declined to open a case, the two brought suit as permitted by French law.  The appeals court dismissed the action, holding that as non-profits not alleging actual damages from corruption and not formally authorized to bring such actions by the French government the complainants did not have standing, but in a precedent setting decision, the Cour d’ Cassation ruled that TI-France did have standing.

In perhaps no other country has civil society been as successful in spurring corruption-related litigation as in India.  Arghya Sengupta, Research Director of New Delhi’s Vidhi Centre for Legal Policy, reviewed for conference participants several high profile decisions the Indian Supreme Court has handed down in response to civil society suits.  In Vineet Narain v. Union of India it ordered revisions in the way the head of the Central Bureau of Investigation, India’s premier law enforcement agency, is appointed to insulate the bureau from the political pressures it found had interfered with the CBI’s ability to investigate corrupt politicians.  In State of Bihar v. Ranchi Zila Samta the court also addressed the problem of political interference in corruption investigations.  Finding that Bihar state investigators were reluctant to vigorously pursue a case involving senior state officials, the state high court had ordered that the police cede jurisdiction to the CBI.  The Supreme Court not only affirmed the state court’s decision but ruled it had the power to monitor the progress of the investigation, appointing the Chief Justice of the High Court of Patna as the monitor.  Most recently, in May 2014 at the behest of civil society the court found that corruption had permeated the award of 2G spectrum licenses on a first-come-first-served basis and ordered the licenses be cancelled and re-awarded on the basis of an open auction.

The success of civil society groups in these four countries is heartening.  It also suggests there is much room for further action.  Will civil society groups in other Francophone countries push their courts to give NGOs standing to force prosecutors to bring criminal actions?  Will NGOs in other countries party to the West African Community treaty use the Nigerian precedent to bring cases against their governments?  Will common law countries where political interference in corruption cases rivals that found in India follow the Indian Supreme Court’s lead?

The author of this post is working with the Open Society’s Justice Initiative on a volume that will address these and other questions related to civil society efforts to spur corruption-related litigation.  He welcomes comments and observations from GAB readers.

6 thoughts on “Some Successful Initiatives by Civil Society to Prompt Corruption-Related Litigation

  1. Great post. What I find most interesting here is the variety of avenues civil society members have found to spur corruption-related litigation. As you have noted in several previous posts, there is a real opportunity for civil society to contribute by applying otherwise-lacking public pressure.

    I would like to specifically link this post to what Ignacio Boulin Victoria proposed a few months back (link pasted below). His plan was to use Freedom of Information laws in developed countries to somehow spur litigation in developing countries. Some of the case studies you have listed here, however, seem to go the other way–that is, civil society in developing countries seems to have gathered information about corruption in their country and then taken it to developed countries (like France and Switzerland) to pressure those prosecutors to bring a case.

    This seems like an excellent area for future exploration!

    https://globalanticorruptionblog.com/2014/05/05/guest-post-using-foia-to-get-evidence-on-bribe-takers/

  2. Very interesting Rick. One thing I noticed was that several (though not all) of these examples involve legal systems that give parties the opportunity to challenge the decision of prosecutors _not_ to pursue an investigation or bring a case. There are a lot of advantages to that sort of limit on prosecutorial discretion, as your examples illustrate. But in some systems — including the U.S. — there’s a much stronger norm of prosecutorial discretion, particularly with regard to decisions not to pursue a case. And there are some decent arguments about why it might be good to insulate those sorts of prosecutorial decisions from external review. I wonder if there’s anything more general we can say about the legal regulation of prosecutorial discretion in the anticorruption context, and whether any of the legal devices that have proved useful to anticorruption NGOs in some countries can/should be adapted & adopted in other countries.

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  5. Perhaps there is another example of civil society acting on, with and even creating anticorruption laws, which is Brazil. Unlike the cases described here, which are placed in the combat of grand corruption cases, Brazilian society acted against electoral corruption twice, once in 1999 and then again in 2010. Through a legal tool called popular initiative, Brazilian civil society was able to push the ‘Vote Buying’ Law and the ‘Clean Slate’ Law. Both are a very interesting and rich cases of how society organized and pushed laws to reduce corruption.

    These cases also deserve a spot in the hall of successful civil society interventions on corruption.

    Great post! Thank you!

  6. Pingback: Some Successful Initiatives by Civil Society to Prompt Corruption-Related Litigation | Matthews' Blog

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