Guest Post: Zambia’s Director of Public Prosecutions Describes Efforts to Unconstitutionally Remove Him for Prosecuting former President

Below is a February 16 letter Mutembo Nchito, Zambia’s Director of Public Prosecutions, wrote to fellow prosecutors recounting recent efforts to have him removed from office. Links have been added to some of the references cited.

Dear Colleagues,

I trust you are well. I have had an eventful 10 or so days that I feel duty bound to share with you.

As some of you may know Zambia lost its fifth President October 28, 2014. This is the President that requested me to join the public service as Director of Public Prosecutions. My mandate was to transform the Ministry of Justice’s Department of Public Prosecutions into an autonomous National Prosecution Authority. This I embarked on with a reasonable measure of success.

That said one of the main reasons I was hired was my history of anticorruption prosecution. Since 2002 I have prosecuted many cases of high profile corruption that have seen me indict two former presidents, a chief of intelligence,  a Zambia Army Commander, a Zambia Air Force commander and a commander of another defence force called the Zambia National Service. I also prosecuted a former Minister of Finance and his permanent secretaries for corruption and abuse of office among many other high profile individuals.

Except for the first president who was acquitted in very controversial circumstances most, if not all the cases I prosecuted, resulted in convictions. As you can imagine this has earned me very powerful enemies. Continue reading

The 2014 CPI Data Demonstrates Why, Even Post-2012, CPI Scores Cannot Be Compared Over Time

A little while back, I expressed some skepticism about whether Transparency International’s Corruption Perceptions Index (CPI) scores can be compared across time, even after TI changed its methodology in 2012 and claimed that its new scores would now be comparable across years.  More recently, I criticized TI’s 2014 CPI for burying the information on the margins of error associated with the CPI values, and for wrongly asserting that changes in the CPI score between 2013 and 2014 for certain countries (most notably China) were substantively meaningful.  (In fact, not only does the change in China’s score between 2013 and 2014 seem not to be statistically significant, but the change was due almost entirely to the dropping of a source in which China did abnormally well in 2013, and an abnormally large movement in a single other source.) I decided to follow up on this by taking a closer look at the other ten countries that TI singled out as having experienced significant CPI changes (in either direction) between 2013 and 2014.

Upon closer examination, I’m even more certain that CPI scores cannot be compared over time. I’m also more confident in my judgment that TI has been unforgivably sloppy — and downright misleading — in how it, and its representatives, have portrayed the substantive significance of these CPI changes. It turns out that the problem I found with the China calculations was not unusual. For almost all of the eleven countries TI identified as big movers, the CPI changes were driven by (1) the addition or elimination of sources from year to year for particular countries, and/or (2) abnormally large (indeed, implausibly large) movements in a single source. Until TI fixes its methodology, the safest thing to do is to ignore year-to-year changes in the CPI. And for the sake of preserving its own integrity and credibility, TI should either (A) persuasively explain why I am wrong in my analysis of the data (in which case I will gladly concede error), or (B) issue some sort of retraction or correction to its earlier press releases, and either drop the claim that post-2012 CPI scores can be compared across time or fix its methodology going forward.

Allow me to elaborate my analysis of the data: Continue reading

Egyptian Courts Should Permit Money Laundering Convictions without Conviction on the Predicate Offence

Prosecuting money laundering and corruption are inextricably interwoven. Corrupt officials, like other sophisticated criminals, frequently resort to various forms of money laundering to conceal their ill-gotten funds. That is why the UN Convention Against Corruption (UNCAC) adopted a specific article addressing money laundering. One of the legal challenges in prosecuting money laundering, however, is proving that the property involved is the proceeds of a crime. And one of the ongoing legal controversies on this point concerns whether proving that element of the money laundering offense requires, as a prerequisite, a prior or simultaneous criminal conviction for the predicate offense. Different legal systems have taken different positions on this question, which is perhaps unsurprising. More striking is the fact that, within Egypt right now, this question has divided the circuits of the Court of Cassation (the highest Egyptian criminal court), with no immediate resolution in sight.

One circuit has adopted a “restrictive approach” that requires a prior or simultaneous conviction of the predicate offense as a precondition for a money laundering conviction.  Although a majority of lower courts apply this restrictive approach, another circuit has held—in the case against former President Mubarak’s Minister of interior—that although the prosecution must prove beyond a reasonable doubt the illicit origin of the money to secure a money laundering conviction, the prosecution can establish this fact in other ways; a prior conviction for the underlying offense is not necessary. This division of opinion has persisted despite the fact that there is a provision calling for the Court of Cassation’s General Assembly to vote on controversial matters. Unfortunately, the Court does not apply this provision rigorously.

Although both positions have some merit, the Court of Cassation’s General Assembly–or, if it fails to act, the Egyptian legislature–should reject the restrictive approach and allow the prosecution to prove the elements of money laundering, even in the absence of a conviction for the predicate offense. The purported disadvantages of that approach are greatly exaggerated, and it would enhance the Egyptian government’s capacity to combat high-level official corruption, as well as other serious offenses. Continue reading

Prosecuting Elected Officials for Corruption: A Tale of Four Governors

As Phil and Rick pointed out a few months ago, America’s domestic anti-bribery laws and the attendant court interpretations are, for lack of a better term, a hot mess. In principle, the crime of bribery is straightforward: To secure a conviction, the prosecutor need only convince the jury that (1) there was some agreement (explicit or otherwise) whereby (2) the official would receive something of value (3) in exchange for using his official position in some manner. Unfortunately, though, that burden of proof often becomes far more complicated when the alleged bribe recipient is a high-ranking elected official. When a politician regularly solicits campaign contributions and simultaneously wields political influence to the benefit of constituents, it is often hard to see where politics ends and corruption begins. And after the U.S. Supreme Court’s decisions in cases like Citizens United and Skilling, prosecutors are left wondering when the corrupting influence of money on politics can still be prosecuted as “corruption.”

Today, I want to step back from this confusion and distill a few lessons that I believe still hold true for any US prosecutor investigating an elected official for bribery. To do that, I consider allegations that have been made against four past and present governors — Rod Blagojevich (Illinois), Andrew Cuomo (New York), Don Siegelman (Alabama), and Robert McDonnell (Virginia) — and ask one loaded question: what does it take to prove that an elected official misused his position in exchange for something of value?

Continue reading

Anticorruption Bibliography — February 2015 update

An updated version of my anticorruption bibliography is available from my faculty webpage.  A direct link to the pdf of the full bibliography is here, and a list of the new sources added in this update is here.  As always, I welcome suggestions for other sources that are not yet included, including any papers GAB readers have written.

A Workable Conflict of Interest Law

My January 28 post on conflict of interest complained that the laws of many countries were unduly vague making it next to impossible for officeholders to know what constitutes an unlawful conflict of interest.  Matthew noted in his comment that lawmakers commonly face a dilemma in such situations.  They can either write a rule that clearly specifies what is prohibited, but which can then be easily circumvented, or draft a broadly drawn standard that covers a wider range of conduct but at the cost of vagueness.  (Click here for more on the rules versus standards dilemma.)

Matthew asked how legislators can resolve the tension between these two conflicting objectives. I recommend that the law distinguish between two types of conflict of interest.

Continue reading

Guest Post: Why Debarment Is Different–A Reply to Professor Stephenson

Richard Bistrong, a writer, speaker, and blogger on anti-bribery compliance issues, contributes the following guest post:

As the recent OECD Foreign Bribery Report made clear, debarment (prohibiting the defendant company or individual to engage in future government contracting) is very rarely used as a sanction in foreign bribery cases, most likely because prosecutors worry that debarment would be an excessive penalty that would often do too much collateral damage to innocent parties. I have argued that debarment can and should be used more frequently, and that the legitimate concerns about disproportionate punishment can be addressed by using various forms of “partial debarment.” In a recent post, Professor Stephenson draws attention to a number of potential shortcomings to my proposal. While I agree with some of his points, I think he understates the ways in which debarment—as distinct from fines or other monetary penalties—can have a distinctive deterrent effect on foreign bribery, and why partial debarment might therefore often be appropriate.

Let me try to clarify where Professor Stephenson and I disagree, where we may disagree, and why partial debarment is a sanction that government enforcers ought to employ more often. Continue reading