The Panama Papers Whistleblower’s Radical Manifesto: Some Preliminary Thoughts on a Fascinating Document

The leak of the so-called “Panama Papers”—the roughly 11 million documents from the Panama-based international law firm Mossack Fonseca, provided to the International Consortium of Investigative Journalists (ICIJ) by an anonymous whistleblower—has generated an enormous amount of coverage and commentary (including on this blog: see here, here, here, and here). The identity of the person who leaked the documents is still unknown, but (as many readers are already no doubt aware), this individual posted a “manifesto” last month under the name “John Doe,” explaining his motives in leaking the documents and advocating the sorts of reforms he or she believes are necessary to combat the evils that the Panama Papers reveal and represent. I’m not sure how many of our readers have already read the manifesto, but if you haven’t, I highly recommend that you do. It’s a fascinating document, obviously written by somebody who is both passionate and very well-informed. I’m not sure whether I agree with everything in it—the spirit of the manifesto is radical, even revolutionary, while by nature I tend to be more cautious and incremental—but I think that everyone ought to read the manifesto and take it seriously.

In terms of specific policy reforms, much of what the manifesto proposes has been widely discussed elsewhere: a call public corporate registers (including calls for the UK to extend its domestic initiatives in this area to its overseas territories and dependencies, and for the US to impose transparency and disclosure requirements on individual states); demand for reform of America’s “broken campaign finance system”; and the criticism of the “revolving door” between regulatory agencies and the financial institutions they regulate. (On this last point, by the way, I think John Doe’s analysis is both overly simplistic and overly nasty. He singles out Jennifer Shasky Calvery, the former director of the US Treasury’s Financial Crimes Enforcement Network (FinCEN), calls her “spineless” and castigates her for going to work for HSBC, “one of the most notorious banks on the planet.” I think the general criticism of the revolving door is too simple for reasons I have laid out previously, and it’s unfair in this context in particular because Ms. Calvery in fact had a reputation for aggressive enforcement. Maybe John Doe knows something about Ms. Calvery’s tenure at FinCEN that I don’t, but I found that this petty name-calling, not backed up by any evidence beyond vague insinuations and guilt-by-association, to be both off-putting and out of character with the rest of the manifesto.)

But in addition to these fairly familiar themes, John Doe’s manifesto lays out two radical policy proposals that, so far as I can tell, have gotten very little attention in the discussions of the Panama Papers, or even in discussions of the manifesto specifically. Both are worth taking seriously, though both make me uncomfortable: Continue reading

Electoral Systems and Corruption: Proportional Representation in Brazil

The Petrobras scandal currently engulfing Brazil is unprecedented in its scale and scope. Ironically, when the party of President Dilma Rousseff, the Workers’ Party (PT), initially became a major political player in 1989, it was seen as a clean, ethical alternative after President Collor de Mello stepped down from office amidst corruption allegations. Yet in the years following its rise to power, the PT has been dogged by corruption allegations, even before the explosion of the Petrobras investigations. During the presidency of Ms. Rousseff’s predecessor, Lula Inácio da Silva, prosecutors unearthed a major scheme, known as the Mensalão scandal, under which public funds were being used to pay members of Congress in exchange for their support of the PT government in crucial votes. At the end of the inquiry, 25 politicians and businessmen were convicted. Several other smaller corruption schemes (including Caixa Dois, Bingos, Sanguessugas, and Dossier) also implicated high-ranking members of the PT during Mr. da Silva’s tenure.

Despite this clear evidence of corruption within the PT ranks, the PT has been able to maintain its relative dominance in Brazilian politics, with three successive victories in presidential elections following Mr. da Silva’s initial rise to power, including Ms. Rousseff’s re-election in 2014, six months after the launch of the Petrobras investigations. This raises yet again a question that scholars and commentators have asked over and over again: Why do voters keep re-electing corrupt politicians? Democracy is supposed to enable voters to hold their government accountable, and most voters claim to dislike corruption and to value integrity in government. So why do parties like the PT keep winning elections? While there are many possible explanations (maybe, for example, voters don’t really care as much about corruption as they claim), part of the explanation in certain countries may have to do with the particularities of the electoral system.

Brazil has a hybrid electoral system: the President is elected in a two-round majority run-off system, elections for the Senate are based on plurality votes within states, and elections to the Chamber of Deputies are based on open-list proportional representation. An examination of this system suggests that it is particularly inimical to holding corrupt politicians accountable, and may have in fact contributed to the seemingly intractable problem of corruption in Brazilian politics. Three problems in particular stand out:

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What a Difference a Year Makes… or Does It? Revisiting Kenya’s Anticorruption Task Force and Assessing its Legislative Proposals

In spring 2015, at the behest of Kenyan President Uhuru Kenyatta, Kenyan Attorney General Githu Muiagai formed the Task Force on Review of Legal, Policy and Institutional Framework for Fighting Corruption. The group’s goal was to assess the existing framework for combatting corruption in Kenya and to recommend reforms that would promote ethics and integrity while making it easier to fight corruption going forward. Yet for months, very little seemed to be happening, aside from meetings, a speech by President Obama to the Kenyan people on the subject, and some discussion of purported proposals in the press. (I examined one such proposal related to whistleblowers in an earlier post.)

The Task Force released its final report in October 2015 and President Kenyatta received the report the following month, the same week seventy-two government officials were arraigned on corruption charges. In general, the Task Force found (not surprisingly) a high correlation between discretionary power exercised by state actors and corruption. The Task Force said the fight against corruption was more about increasing enforcement of existing laws (although it did not recommend combining the investigative and prosecutorial roles as proposed legislation discussed in Rick’s earlier post would). But the report also proposed three major new legal frameworks, which mirror provisions in U.S. law, that the Taskforce report said would help reduce corruption in the country: Continue reading

Guest Post: After the Media Circus, What (If Anything) Have We Learned from the Panama Papers?

GAB is pleased to welcome back Professor Jason Sharman, Deputy Director of the Centre for Governance and Public Policy at Griffith University, Australia, who contributes the following guest post:

After the initial flurry of media attention to the Panama Papers, Matthew Stephenson rightly asks how much, if anything, we have really learned from this affair beyond the celebrity gossip.

A notable degree of modesty is in order here, as what we have seen so far is a tiny, almost certainly unrepresentative sample of the vast quantity of information leaked to International Consortium of Investigative Journalists (ICIJ). The initial wave of media coverage related to 140 individuals, including 12 heads of state or government. Since the ICIJ database became searchable on May 9th, we have a few more names, mostly small-time crooks, and it is possible to run individual name searches to your heart’s content. Nevertheless, given that Mossack Fonseca had created 214,000 shell companies, what we have seems to be less than 1% of their clientele, and presumably the most sensational and outrageous cases. If you looked at your average big international bank, took the records of 214,000 accounts, and subjected them to a detailed financial audit, you probably would find at least a few hundred people engaged in crime or some other seriously shady business (putting banks’ own criminal conspiracies like rigging the LIBOR and Forex markets and sanctions-busting to one side).

Matthew’s earlier post asked about the structure of the offshore shell company industry–in particular, whether it was dominated by a few major providers, or whether it was a highly fragmented market with many firms, each with small market share. The answer is both: There are a few big wholesalers of shell companies, four or five, plus a couple in the US. The wholesalers sell to thousands of intermediary retailers, who then sell to the end-users, i.e. the beneficial owners. I was surprised by how many retailers Mossack Fonseca dealt with (14,000), given that the other wholesalers of equivalent size engage with 2,000-3,000 intermediaries. The difficulty keeping track of this number of retailers, let alone their customers, might explain Mossack Fonseca’s otherwise-puzzling suicidal indiscretion in transacting with customers who brought a huge amount of risk for a fairly trivial sum of money, e.g. those on US government sanctions lists.

What does the structure of the industry mean for regulatory solutions? The retailers could take up the slack if the wholesalers were put out of business, although the process of forming shell companies would be less efficient and more expensive. More importantly, the more concentrated the industry, the easier it is to regulate, compared to the whack-a-mole situation of thousands of independent retailers. As Rick Messick rightly points out, for this regulation to work, however, it is necessary for the Eligible Introducer system between wholesalers and retailers to work in identifying beneficial owners. Despite a litany of earlier high-profile failures, a Guardian piece actually suggests that the British Virgin Islands authorities had recently got on top of this problem: in 2015, 90 requests from the local Financial Intelligence Unit to Mossack Fonseca turned up the names of 89 beneficial owners. However, because customer identity documents are now almost always scans rather than paper, there seems to be no good reason why they can’t be held in the jurisdiction of incorporation.

More broadly, with the Panama Papers and the earlier April 2013 offshore leak, we (or at least the ICIJ) now have information on just over 320,000 offshore shell companies, which probably represents something like 15-20% of all the offshore shell companies ever created. You can work out the total number in that BVI has about 40-45% of the worldwide market. It currently has 450,000 active companies, and 950,000 formed in total since the creation of its registry. If we could draw a random sample of these companies and the associated documentation, rather than cherry-picking the worst of the worst, then we could form a much more accurate and robust conclusion on what the typical uses of offshore shell companies actually are.

In just looking at the information we do have from the Panama Papers, two things are fairly apparent, yet don’t seem to have attracted much comment so far: Continue reading

The Panama Papers & Eligible Introducers: Another Hole in Antimoney Laundering Laws

 

More evidence of the ease with which corrupt officials can dodge the antimoney laundering laws, and thus hide money offshore, emerged from a recent Panama Papers story out of New Zealand.  It discloses how lax the standards are for becoming an “eligible introducer.” An eligible introducer is a law firm or other entity that under the antimony laundering laws can arrange for an offshore corporation to be established in a client’s name and for a bank account to be opened in the corporation’s name.  An offshore corporation with attached bank account is what all corrupt officials want. It gives them a covert way to accept and hold bribes and money from other illicit activities.

The antimoney laundering laws are supposed to make it virtually impossible for corrupt officials to get their hands on an offshore corporation with a bank account: first by requiring the firms that establish corporations to scrutinize the background of those wanting to create a corporation and second by requiring banks, before opening a corporate account, to know who the company’s owner is and what the owner plans to do with the company and its account.  If those providing incorporation services and the banks each conduct this “due diligence,” a corrupt official is very unlikely to slip through both screens.  That leaves the official with one of two decidedly inferior options: hide the illicit funds under the mattress or entrust them to a close relative or friend.

Enter the eligible introducer. Continue reading

In the Excitement of the New, Let’s Not Neglect the Tried and True

In my two posts last week (here and here), I attempted to go through all of the 41 country statements submitted by the participants in the London Anticorruption Summit held earlier this month, to see what those statements had to say about four specific issue areas highlighted by the Summit’s joint Communique: (1) accessibility (and possibly transparency) of beneficial ownership information for companies and other legal entities, (2) public procurement transparency, (3) independence, effectiveness, and transparency of national audit institutions, and (4) whistleblower protection (and encouragement). I didn’t originally intend to say much more about this, other than putting the information out there for others to examine, but on writing up the summaries, I was struck by the following observation:

Of the four issue areas I picked out–all of which, again, were prominently featured in the Communique–I would characterize two (beneficial ownership and, to a somewhat lesser extent, procurement transparency) as relatively “new” topics that have generated a lot of excitement. (This is clearly the case for beneficial ownership; public procurement transparency has been on the agenda for much longer, though I put it in this category because a lot of the focus of discussion in this area has been on relatively new initiatives like e-procurement and the Open Contracting Data Standard.) The other two issues I chose to highlight–independent and competent audits of government programs, and adequate protection of (and, preferably, affirmative encouragement for) whistleblowers–have been part of the conversation for considerably longer, though that doesn’t mean we’ve yet seen anywhere near as much movement on either of those issues as we’d like. And, compared to the newness and (relative) sexiness of topics like beneficial ownership registries and e-procurement initiatives, whistleblower protection and audits seem a bit humdrum. (Audits especially. Even I get bored when I hear the word “audit,” and I happen to think they’re really important.)

The thing that struck me, when going through the country statements, was the dramatic lopsidedness of the attention lavished on beneficial ownership and procurement transparency (to say nothing of other topics I didn’t cover, like corruption in sports and improved asset recovery mechanisms), compared to the relative neglect of country commitments in the areas of improving national audit institutions and whistleblower protections. Continue reading

Going Cashless to Fight Corruption: The Case of Kenyan Public Transit

In the fight against petty corruption, a potentially game-changing development is the rise of cashless payments. In a world where people do not use or carry cash, petty bribes to traffic cops or low-level government bureaucrats are either foolish—in that they require a processing mechanism and are therefore easy to detect—or altogether impossible. While some wealthier jurisdictions have made substantial steps towards a cashless economy (see Sweden and Hong Kong), a surprising leader in the rise of cashless payments has been Kenya, reinforcing its role as the Silicon Savannah of Africa and a potential hub for innovation in combatting petty corruption.

In 2007, the Kenyan telecom company Safaricom launched M-PESA, a mobile banking service that allows people to transfer money to other users using their mobile phones, and to withdraw cash from any of over 40,000 agents across the country, creating convenient mobile bank accounts accessible to virtually all Kenyans. M-PESA has been remarkably successful: As of 2015, M-PESA had 20 million subscribers (over two-thirds of Kenya’s adult population), and by some estimates around 25% of the country’s GDP flows through the service. The brilliance of M-PESA is that users do not need to carry around vast sums of cash; instead, they can treat any M-PESA agent as an ATM, and withdraw cash only when needed.

A recent plan has suggested leveraging technology like M-PESA to create cashless payments on the shared buses, known as matatus, that are the main form public transportation in Kenya. Traffic police routinely stop matatus to extort bribes from the drivers and conductors of the vehicles, who often in turn demand cash from passengers in order to continue on their route. In 2014, Kenya’s National Transport and Safety Authority (NTSA) proposed a policy whereby matatus would become cashless, shifting payments to a more easily regulated electronic system. All commuters would have prepaid cards, or funds accessible through their mobile phone that they could use to pay the conductor a flat rate for a given route. Drivers would be discouraged from extorting payments to fund bribes through the online system, as this system would be more stringently regulated and payments would be more easily tracked. Given the ubiquity of M-PESA agents acting as de facto ATMs throughout the country, commuters as well as matatu drivers and conductors would in theory not need to carry cash at all on these routes, thus reducing the incidence of bribes paid to traffic police.

The implementation of this plan, however, has been slow and fraught with difficulties. As of the time of writing, only some matatu associations have begun accepting cashless payments, and cash payments still predominate. In January of 2016, the Chairman of the Matatu Owners Association, Simon Kimutai, stated that full implementation will likely take up to four years, despite the government’s more optimistic timelines. One problem is inter-operability: Ideally, there should be a uniform set of payments on all matatu routes, but this is not yet the case; the unfortunate consequence is that even in matatus with the equipment to receive cashless payments, drivers and conductors still accept cash payments to avoid logistical difficulties. A potentially more serious problem is that some matatu drivers are actively resisting the plan by pretending the card readers are broken or feigning confusion over the new system. One reason for this resistance is the drivers’ desire to preserve their ability to inflate prices at rush hour or in poor weather. But drivers may also resist the cashless system in order to avoid retribution by the criminal gangs that currently patrol certain matatu routes and force drivers to pay bribes for protection. (Similar problems arose in Guatemala, when a similar cashless plan was enacted: When the cashless system limited drivers’ ability to pay these “protection” bribes, gangs reacted with violence, burning buses and threatening drivers and passengers alike.)

These problems mean that in the short term, it is unlikely that this plan to shift to cashless payments will have much effect on the incidence of petty bribes on matatus, as commuters will be forced to carry cash all the same. However, I remain optimistic that this plan nevertheless represents an exciting development, and is one that will ultimately have a meaningful impact. There are three main reasons for my optimism:

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