Many critics, including on this blog, have argued for abolishing judicial elections, partly on the grounds that judicial elections open the door to judicial corruption. These critics worry that elected judges cannot apply the law neutrally because they will be influenced by those who got them to their position and by the desire to stay there. But these risks are both exaggerated and fairy easy to control. Judicial elections actually promote legitimacy and responsiveness, and reduce opportunities for political gamesmanship. Ultimately, judicial elections can help curb judicial corruption.
Recently Jimmy McEntee criticized the anticorruption provisions that the International Olympic Committee (IOC) had added into its standard Host Country Contract (HCC), arguing that the revised HCC language fails to represent genuine progress in fighting Olympic corruption. I might quibble with a few of his arguments, but McEntee’s larger point is essentially correct. For example, while I think McEntee erred as a technical legal matter in asserting that the HCC contains no legal enforcement mechanism, he’s right that as a practical matter, the IOC may not be able to credibly threaten to enforce the anticorruption provisions against a host city, or host National Olympic Committee (NOC) that violates them. Although the IOC is entitled to terminate the HCC and to withdraw the Games from the Host City if there is a violation of or failure to perform “any material obligation pursuant to the HCC or under any applicable law,” this threat is not very credible, given the high stakes involved for the IOC, the demanding timeline on which Olympic Games are prepared, and the fact that termination may invite burdensome and uncertain litigation over what counts as a “material obligation.” For similar reasons, the less extreme remedy of retaining or withholding funds from the host city or NOC or Host National Olympic Committee (NOC) is also not very appealing, and therefore not very credible, in light of the IOC’s strong interest in making the Olympic Games a success and the fact that withholding funds which would weaken the local hosts.
But perhaps McEntee’s most important point—and the one I want to explore further here—is his argument that the HCC’s anticorruption languate is excessively vague. He argues that “a meaningful anticorruption provision – one consistent with best practices for such provisions – would need to include language that requires the host city to ensure that its agents, contractors, suppliers, and consultants do not participate in any corrupt practice” (emphasis in the original). It is here, especially with respect to the failure to deal clearly and adequately with third-party corruption, where the revised HCC lags behind most, and where comparison with another international sporting association’s approach to the same issue—the Union of European Football Associations (UEFA) Tournament Requirements for the EURO 2024 tournament—is most enlightening. Continue reading
This Monday, June 19, a case against Equatorial Guinean First Vice President Teodoro Nguema Obiang Mangue for looting the nation’s oil wealth opens in a Parisian criminal court. In partnership with the Open Society Foundations Justice Initiative, GAB will provide readers with regular reports on the case’s progress. Although the Vice President is unlikely to appear in person, the case nonetheless is an important milestone in the world wide struggle to bring to justice rulers who rob their citizens on a massive scale. It marks the first time, to GAB’s knowledge, a sitting kleptocrat has been called to account.
The case, one of several collectively known as “bien mal acquis” or “ill-gotten goods,” has gone through several twists and turns. It is a tribute to the hard work, persistence, and dedication of CCFD-Terre Solidaire, Sherpa, TI-France and other individuals and NGOs that it is now finally set for trial. Vice President Obiang could be sentenced to up to 10 years’ in prison and fined millions of euros if convicted. While he would surely remain holed up in Equatorial Guinea to duck prison, conviction would likely carry an order confiscating all property he owns located in France, which today is known to include a Parisian mansion valued at 107 million euros along with a collection of Ferraris, Maseratis, and other luxury cars like worth over five million eruos.
The French case is not Obiang’s first brush with the law. In October 2014, to settle a U.S. case based on his kleptocratic ways, he forfeited a mansion in California and other property worth $30 million. Obiang is also under investigation in a number of other jurisdictions.
Monday’s hearing begins at 1:30, Paris time. For those fortunate enough to be in Paris, additional hearings are scheduled for 9:00 am, June 21; 1:30, June 22; 1:30 pm, June 26; 1:30, June 28; 9:00, June 29; 1:30, July 3; 9:00 July 5; and 1:30 July 6. For those who are not, GAB is the next best alternative.
For decades (perhaps longer), the corruption problem in Sub-Saharan Africa has seemed intractable. With only a handful of exceptions (such as Botswana, and more recently Rwanda), Sub-Saharan African countries score poorly on measures like Transparency International’s Corruption Perception Index (CPI), and direct surveys of African citizens tend to confirm that the frequency of petty bribery, while both lower and more variable than some Westerners think, are much higher than in most other countries. Declarations of war on corruption have also been a feature of African politics for decades, to the point where both citizens themselves and outside observers have grown cynical about the will or capacity of leaders to clean up the system.
But there are some preliminary, hopeful signs that in at least some major Sub-Saharan countries, things may be starting to change for the better. The country that probably gets the most attention, at least among commentators outside of Africa, seems to be Nigeria, where President Buhari—a former strongman-style President whom some have characterized as a kind of “born-again” reformer—has made anticorruption a centerpiece of both his election campaign and his administration. (For some discussions of President Buhari’s anticorruption efforts, on this blog and elsewhere, see here, here, here, and here.) But to me—as a non-expert with only the most superficial knowledge of the region or its politics—the more interesting developments are actually occurring in Tanzania, under the administration of President John Magufuli. Continue reading
In my last post, I discussed the how the problem of “ghost soldiers”—soldiers who are inaccurately listed as on active duty, for purposes of generating salary payments that are then stolen—adversely affects the capacity and readiness of the Afghan National Defense and Security Forces (ANDSF). To make things worse, not only is the government making salary payments to soldiers who don’t exist, but some ANDSF personnel who do exist are not receiving the full salaries they are due. Approximately 20% of Afghan National Police (ANP) and 5% of Afghan National Army (ANA) personnel are paid in cash through so-called “trusted agents,” who are supposed to facilitate salary payments to ANDSF personnel when electronic funds transfers (EFTs) are not possible, but according to reports, corruption in the system could take as much as half of an employee’s salary. And while most ANDSF personnel receive their salaries via EFT to their personal bank accounts, this only reduces the threat of pilfering in the final distribution stage; it does nothing to correct for errors, either intentional or inadvertent, generated earlier in the process.
What can be done about these problems? The U.S.-led multinational military organization working with the Afghan government to reform and strengthen the ANDSF, known as the Combined Security Transition Command-Afghanistan (CSTC-A), is applying a technological band-aid that focuses on implementing a set of computerized systems that track personnel and pay. While these measures are helpful, they do not fundamentally change the incentive structures that drive corruption, and so are unlikely to represent a long-term solution, particularly after direct U.S. involvement winds down.
Which corruption investigation was preceded by a massive outcry against corruption, was advanced by federal prosecutors making liberal use of the plea bargain, implicated hundreds of politicians (including former and current heads of state), raised serious questions about the role of the independent judiciary, and ultimately resulted in a dramatic political crisis that led to the replacement of a long-standing populist regime with a conservative government bent on reform?
If you guessed Brazil’s Lava Jato (English: Car Wash), you’d be correct.
But if you answered Italy’s Mani Pulite (English: Clean Hands), you’d also be right.
The similarities between the two anticorruption investigations and subsequent prosecutions are no coincidence. In 2004, Brazilian Judge Sérgio Moro, currently responsible for Lava Jato, penned an essay praising the Clean Hands operation, calling it “one of the most impressive judicial crusades against political and administrative corruption,” lamenting Brazil’s failure to engage in a crusade of similar import, and setting a roadmap for the country to do so, based largely on the perceived successful tactics of Italy’s Clean Hands.
Over the last three years, Brazil’s Car Wash operation has followed Moro’s roadmap. But, as Alberto Vannucci has pointed out, Clean Hands was far from an unqualified success—on the contrary, the headline-grabbing, establishment-shaking operation arguably left the country even more mired in corruption than before. Last year, GAB contributor Daniel Binette (channeling Vannucci) predicted that Brazil could face three major challenges in the wake of Car Wash: (1) a collapse of major political parties, (2) the remote possibility of a coup, as occurred in Thailand in 2014, and (3) a loss of public confidence in the anticorruption probe itself. Some of Binette’s predictions have proven prescient, while the accuracy of others remains to be seen.
Last month, we announced the launch of our project to track credible allegations that President Trump, as well as his family members and close associates, are seeking to use the presidency to advance their personal financial interests.Just as President Trump’s son Eric will be providing President Trump with “quarterly” updates on the Trump Organization’s business affairs, we will do our best to provide readers with regular updates on credible allegations of presidential profiteering. Our June update is now available here.
Highlights from the new material include:
- Federal government agencies promoting Ivanka Trump’s book
- Trump advisors and confidants Carl Icahn and Rupert Murdoch allegedly influencing administration decisions in ways that benefit their financial interests
- Efforts by Jared Kushner’s sister to attract Chinese investors to a family company project by touting her son’s role as senior advisor to the President
- Allegations that Jared Kushner and the chairman of a Russian state-owned development bank may have discussed the possibility of a loan to the Kushner family business in exchange for relaxation of U.S. government sanctions on Ukraine
- Substantial payments by state government pension funds to entities affiliated with Trump Organization businesses.
(Note: While we try to sift through the media reports to include only those allegations that appear credible, we acknowledge that many of the allegations discussed are speculative and/or contested. We also do not attempt a full analysis of the laws and regulations that may or may not have been broken if the allegations are true. For an overview of some of the relevant federal laws and regulations that might apply to some of the alleged problematic conduct, see here.
Ensuring firms that loose the competition for a government contract can challenge the result is a critical part of the fight against corruption in public procurement. A losing bidder will have lost the chance to make a profit and will have invested time and money in preparing its bid. It thus has not only a strong motive for contesting a decision it believes tainted by corruption but the expertise to do so. Bid challenge systems complement procurement oversight by civil society. Indeed, they may even be a more powerful tool. Whereas civil society monitoring typically relies on public-spirited volunteers unfamiliar with the technical aspects of the procurement, bid challenge systems harness firms’ self-interest and technical knowledge in service of ferreting out procurement corruption.
Transparency International’s 2014 volume on combating procurement corruption and the OECD’s 2016 procurement integrity handbook both note the importance of bid challenge systems but offer little guidance on what makes for an effective system. Here are five questions anticorruption advocates can ask to assess the effectiveness of their nation’s bid challenge system: Continue reading
My post two weeks ago discussed reports that Walmart is on the verge of reaching a settlement with the U.S. government regarding allegations that several of Walmart’s foreign subsidiaries violated the Foreign Corrupt Practices Act (FCPA), and that the total penalties that Walmart would pay would be around $300 million. That may sound like a big number, but it’s much smaller than the $1 billion penalty some commentators predicted when the investigation got under way, and only half of the $600 million the U.S. government was reportedly demanding as recently as last October.
As I write this, a settlement still hasn’t been formally announced, though it’s possible it will have been by the time this post is published. (I’m traveling this week, so I wrote this post a several days in advance and wasn’t able to update it to reflect any developments that may have occurred in the last 72 hours or so.) But let’s assume for the moment that the media reports are accurate, and that sometime this year – approximately six years after Walmart first disclosed to the SEC and DOJ that it might have an FCPA problem – the case settles for around $300 million. What would we learn from that?
Or perhaps I should frame the question more starkly, at the risk of oversimplification:
- There are a bunch of folks out there (the “FCPA Reform” crowd) who argue that the U.S. government’s approach to FCPA enforcement is out of control, with the government imposing enormous and unjustified costs on companies for relatively minor and/or unproven infractions. The government can do this, the argument goes, because the government has corporations over a barrel: most corporations can’t risk being indicted for FCPA violations, and so (the FCPA Reform crowd asserts) the government can and does extract exorbitant settlements with little regard to whether the government’s legal theories have an adequate basis in law and fact.
- Then there are a bunch of folks (lat’s call them the “FCPA, A-OK” crowd) who think that the aforementioned concerns are grossly exaggerated, and that in fact the U.S. government’s FCPA enforcement posture is reasonable, grounded in a plausible view of the law, and that allegations of overreaching don’t withstand critical scrutiny. (And then of course there are those who think that the government isn’t nearly aggressive enough in enforcing the FCPA, and that in fact both the resources devoted to investigation and enforcement, as well as the penalties, should be increased dramatically.)
If the Walmart settlement resembles what the most recent media reports predict, I think that both the “FCPA Reform” crowd and the “FCPA, A-OK” crowd can and will find material to support their positions. Continue reading
Corruption in Afghanistan and its role in the ongoing instability of the country has been discussed on this blog before (see, for example, here, here, and here), but for the most part in fairly general, strategic-level terms. In this post, I’m going to zoom in and explain in greater detail two particularly insidious types of corruption that plague the Afghan National Defense and Security Forces (ANDSF): 1) the problem of “ghost” soldiers, and 2) the pilfering of fuel, weapons, and other supplies intended for security force personnel. These forms of corruption leave Afghan security forces hollow and ill-equipped to accomplish the missions assigned to them. As long as pervasive corruption continues to undermine force capacity, readiness, and morale, the prospect of Afghan government forces gaining the upper hand on the Taliban and other insurgents remains slim.
“Ghost soldiers” are fictitious troops added to personnel rosters by corrupt officials who then collect the extra pay allocated for these (in some cases deceased, in some cases no longer active, and in some cases totally made-up) soldiers. To give a sense of the scale of the problem, consider the 215th Corps of the Afghan National Army. In 2015, local officials suggested that up to 40 percent of names on the books did not correspond to actively-serving soldiers. For the 215th Corps, with an authorized strength of 18,000, that would mean fewer than 11,000 soldiers were actually available to fight. Earlier this year, US Army Major General Richard Kaiser, commander of Combined Security Transition Command-Afghanistan (CTSC-A), told the Wall Street Journal that the US had removed from the Afghan military payrolls more than 30,000 suspected ghost soldiers. That group of names amounted to over one-sixth of the Afghan army, significantly less than 40 percent but nevertheless a staggering figure. For reference, 30,000 is the same number of additional US troops President Obama sent to Afghanistan in December 2009 in a surge deemed necessary to turn the tide in the conflict.