Monthly Archives: September 2019

Guest Post: Toward a Meaningful “Common African Position on Asset Recovery”

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GAB is delighted to welcome back Mat Tromme, Director of the Sustainable Development & Rule of Law Programme at the Bingham Centre for the Rule of Law, who contributes the following guest post:

It’s no secret that kleptocratic rulers in Africa have robbed their countries of substantial assets that could have  otherwise been used to promote development and social welfare. Indeed, the amounts are often staggering: $16 billion reportedly stolen by former Libyan President Gaddafi; $1 billion by Gambia’s ex-President Jammeh; billions by former Congolese President Kabila; and the list goes on. Recently, Nigeria’s Economic and Financial Crime Commission suggested that up to $50 billion has been looted from Africa, and whether or not particular estimate is accurate, there’s little doubt the problem is serious. More troubling is the fact that only a small proportion of these stolen assets have been recovered and repatriated to the country of origin.

As part of the effort to address the challenges of asset recovery—and to give African states more clout in negotiating the terms and conditions of asset return with the states that initially seize the stolen loot—African countries are currently undertaking an effort to develop a “Common African Position on Asset Recovery” (CAPAR). Incidentally, a common african position was the chosen theme of this year’s African Union Anti-corruption day. At this early stage, it seems likely that this effort will result only in a political proclamation (perhaps within the framework of this month’s UN General Assembly), one that will re-emphasize the importance of the speedy and unconditional return of assets, and call for better collaboration across countries. That’s a good start, but not enough! Developing a pan-African position on asset recovery—perhaps similar to the multilateral framework adopted by the Mercosur countries and by the EU—is a worthwhile endeavor, one that will likely produce tangible benefits only if it goes beyond mere statements of intent or general principles, and lays out some concrete steps to translate the vision into reality.

Ideally, CAPAR should seek to streamline policies and resources devoted to recovering assets and developing better investigative and prosecutorial capacity across African states, for example by implementing cross-border investigations and fostering collaboration, experience and information-sharing between countries. There are various ways to achieve this broad objective: Continue reading →

Memorandum of Conversation Between Presidents Trump and Zelensky UPDATED

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America has unfortunately plunged into what is likely to be a long and divisive debate about corruption. Media reports of a conversation President Trump had July 25 with Ukrainian President Volodymyr Zelensky have swirled since allegations surfaced that President Trump had there asked President Zelensky to investigate former Vice President Biden for corruption.  In the hopes of ending speculation about what he said, earlier today President Trump released a memorandum recounting the call.  [Update: The controversy leading to release of the memorandum was sparked by reports an intelligence professional had filed a whistleblower complaint concerning President Trump and Ukraine.  That complaint, released the morning of September 2, is here].

Unfortunately, the release is likely only to fuel ever more nasty, partisan debate. One controversy certain to arise is the memorandum’s accuracy.  It is not a verbatim transcript of what the leaders said, a transcription of an audio recording of the call.  Rather, it represents what one or more staff huriedley scribbled down while the two spoke; later others reviewed it.  Did someone “scrub” more incriminating comments from the memo before its release?  Is there a better record of the call?  Will the person or persons who actually listened to the call come forward to testify to its accuracy?  Or contest the accuracy?

A more critical point of contention is whether what President Trump said during the call is on its face a crime under American law.  President Trump clearly asked President Zelensky to investigate former Vice President Biden for criminal activity.  The Federal Election Campaign Act makes it a crime for presidential candidates to receive contributions, defined as “anything of value,” from foreign citizens or governments. President Trump is a candidate for president in the 2020 election as is the former Vice President. Had Ukraine actually initiated an investigation of the Vice President, would that have been something of value under the election law?  If it would have been, was President Trump’s solicitation of such a contribution a violation of the law?  Or any other U.S. laws?

Is the fact that Mr. Biden is seeking the 2020 Democratic presidential nomination relevant to the inquiry?  That, were he to be the Democratic nominee, current polls show him decisively defeating President Trump?

Some reports allege President Trump personally held up critical military and economic assistance to the government of Ukraine, only releasing it under Congressional pressure.  That will surely be the bitterest bone of contention, for if he used a denial or delay in providing aid as leverage to force Ukraine to open an investigation, that would constitute attempted bribery under American law and thus strong grounds for impeachment and removal from office.

Was there such a threat?  As students of U.S. bribery law know, it need not have been overt; “a wink and a nod” suffices.   Expect a great deal of argument over “winks and nods,” with partisans seeing none opponents seeing them everywhere

The only bright spot in this very dismal chapter in American history is release of  memorandum of conversation.  It provides at least some uncontested facts upon which partisans can build their cases.  For those who have yet to read it, here it is Memorandum telephone conversation between Presidents Trump and Zelenskyy

Anticorruption Bibliography–September 2019 Update

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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.

Lula’s Lawyers Respond to the Lava Jato Prosecutors’ Letter

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Last week, GAB published two letters presenting alternative perspectives on the so-called “Car Wash” (Lava Jato) anticorruption operation in Brazil, in particular the prosecution and conviction of former president Luiz Inácio Lula da Silva (Lula). The first letter was a re-publication of an open letter sent by a group of international jurists and scholars, who asserted that Lula did not receive a fair trial and that the prosecutors were politically biased. The second letter was a reply from the prosecutors, who defended their conduct, argued that the conviction of Lula was legitimate and not politically motivated, and contended that a number of factual and legal assertions in the international jurists’ letter were incorrect.

After publication of that post, I received a message from Lula’s lawyers (the law firm of Teixeira, Martins & Advogados), who asked me to publish their letter in response to the prosecutors. In the interest of furthering this important substantive debate, I am presenting their letter below: Continue reading →

Guest Post: U.S. State Ethics Agencies Must Improve Both Enforcement and Transparency

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Today’s guest post is from Shruti Shah, President and CEO of the Coalition for Integrity (C4I), and Alex Amico, a C4I legal fellow.

Recently, the Coalition for Integrity released a report on Enforcement of Ethics Rules by State Agencies (along with an associated index and map) which examined the performance of state-level ethics agencies across the United States. In addition to providing basic enforcement statistics, the report emphasized two aspects of these agencies’ performance. First, the report looked at how these agencies enforced the ethics laws they were charged with enforcing, to see how aggressively agencies stand up for ethical government within their legal authority. Second, the report examined how transparent the agencies were in that enforcement, and hence how accountable these agencies make themselves to the public. (The report also ranked each state and agency based on their transparency of enforcement). Both of these aspects of agency performance are crucial to creating a culture of honest government and a robust ethics enforcement regime. Some our headline findings with respect to each of these dimensions of performance were as follows: Continue reading →

Memo for SEC Chairman Clayton: Getting Other Nations to Enforce Their Antibribery Laws

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In recent remarks to the New York business community, you complain that vigorous enforcement of the Foreign Corrupt Practices Act has had little effect on corruption levels “in many areas of the world.”  The blame, you argue, lies with other nations which don’t enforce their antibribery laws. When companies from these nations seek business in a third state, they are free to, and too often do, bribe their way to commercial success. Indeed, as you explain, their repeated success provides the states where they are headquartered an incentive not to enforce their antibribery laws.

Using the prisoners’ dilemma game, you show that bribery will only be brought under control when all countries with firms that do business in foreign states agree to crack down on the payment of bribes.  And you promise that whenever you speak to counterparts in these countries, you will try to persuade them of the value of “common, cooperative enforcement strategies.”  But while the prisoners’ dilemma paradox underscores why all countries where firms that may pay bribes are located must enforce their antibribery laws, it obscures another important step in the global fight against corruption. One that the Commission can do much to advance.    Continue reading →

New Podcast Episode, Featuring Kieu Vien

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A new episode of KickBack: The Global Anticorruption Podcast is now available. In this episode, I interview Nguyen Thi Kieu Vien, the founder and executive director of Towards Transparency, an anticorruption civil society organization based in Vietnam and affiliated with the Transparency International movement. In the conversation, Vien discusses the history of her organization, the corruption challenges facing Vietnam, some of Towards Transparency’s major initiatives, and the promises and limitations of the Vietnamese government’s recent anticorruption reforms. Vien and I also discuss some of the special challenges of operating an anticorruption NGO in an environment like Vietnam, and how Towards Transparency has tried to overcome these challenges in order to achieve meaningful results within the constraints imposed by the political and legal environment.

You can find this episode, along with links to previous podcast episodes, at the following locations:

KickBack is a collaborative effort between GAB and the ICRN. If you like it, please subscribe/follow, and tell all your friends! And if you have suggestions for voices you’d like to hear on the podcast, just send me a message and let me know.

A Group of International Jurists and Scholars Condemns the Conviction of Former Brazilian President Lula as Unfair and Politically Motivated. A Group of Brazilian Prosecutors Defend Their Conduct, and the Conviction. Read Their Dueling Open Letters Here!

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One of the biggest stories in the anticorruption community over the last few months—and one that we’ve featured extensively here on GAB—has been the controversy swirling around the so-called “Lava Jato” (Car Wash) anticorruption operation in Brazil, in light of private text messages among the Lava Jato prosecutors, and between prosecutors and then-Judge Sérgio Moro. These messages were stolen from hacked cell phones and provided to The Intercept, which published a series of stories based on them and also shared them with other media outlines. Critics, including the Intercept journalists, have argued that these messages show unethical conduct, political bias, and due process violations by the Lava Jato prosecutors and by Judge Moro, and that this alleged misconduct demonstrates that the convictions of many of the Lava Jato defendants—most importantly, former President Lula—ought to be thrown out. Others remain unconvinced by the most serious accusations of political bias, and find many of the allegations of misconduct questionable. (For my own, somewhat evolving take on these issues, see here and here, and for a useful debate among Brazilian legal experts, see here.)

Recently, a group of international jurists and scholars weighed in, writing an open letter in which they declared their view that, in light of the evidence revealed by the leaked text messages, Lula did not receive a fair trial and was the victim of political persecution. (An English translation of the letter is available here; the original Portuguese text can be found here.) In response, a group of 20 Brazilian Federal Prosecutors wrote a reply to the open letter’s signatories, arguing that the allegations in the open letter were based on an inaccurate, incomplete, or distorted representation of the facts. The prosecutors’ response letter has not previously been published, but the prosecutors have provided me with that letter and given me permission to post a slightly-revised version here.

I have my own views on the merits of the underlying dispute, which I may go into in a later post, but here I just want to present the two letters side by side, in the hope that this will be helpful to others who have been following this controversy and are trying to better understand the complicated questions at issue. I’ll present this in point-counterpoint format, starting with the English translation of the original open letter (with some corrections to apparent errors or ambiguities in the original translation linked above), and then presenting the prosecutors’ rebuttal: Continue reading →

The Legacy of Guatemala’s Commission Against Impunity

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The most innovative experiment in the fight against corruption in memory ended last week with the closing down of Guatemala’s impunity commission.  Known as CICIG after its Spanish initials, the commission enjoyed tremendous success over its ten plus year life, securing the conviction of dozens of senior military and political leaders, forcing a sitting president and vice president to resign over corruption charges, and most importantly, showing Guatemalans their leaders were not beyond the law’s reach. The commission ceased operating Wednesday after outgoing President Jimmy Morales, whom the commission was investigating for campaign finance violations, refused to renew its mandate.

Although Guatemala’s corrupt elite finally succeeded in killing the commission, the innovation behind the commission’s success is very much alive.  Prompted by CICIG’s success, neighboring Honduras created its own CICIG-like commission, and last Friday, less than 48 hours after CICIG shut down, El Salvador’s newly-elected president established a Salvadorian version of CICIG.  Across the Atlantic, independent of developments in Central America, Ukraine is pioneering a similar ground-breaking approach to fighting corruption which Moldovans are considering copying.

What all four countries have in common is a corrupt ruling class able to stymie the enforcement of the anticorruption laws. CICIG’s creators were the first to recognize that outside pressure alone was never going to change this dynamic.  No matter how much diplomatic and economic pressure the international community brought to bear, Guatemalan investigators, prosecutors, and judges were never going to tame grand corruption by themselves.  Some were themselves corrupt or corruptible; others were honest but unwilling to cross corrupt friends and relatives, and still others feared for their life or the lives of their families if they opened a case.   The CICIG solution? Continue reading →

Working Paper on “Corruption as a Self-Reinforcing ‘Trap’: Implications for Reform Strategy”

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Last month the Quality of Government (QoG) Institute at the University of Gothenburg published a working paper of mine, entitled Corruption as a Self-Reinforcing “Trap”: Implications for Reform Strategy, as part of their QoG working paper series. Here’s the abstract:

Corruption is widely believed to be a self-reinforcing phenomenon, in the sense that the incentive to engage in corrupt acts increases as corruption becomes more widespread in the relevant community. Leading scholars have argued that corruption’s self-reinforcing property implies that incremental anticorruption reforms cannot be effective, and that the only way to escape a high-corruption equilibrium “trap” is through a so-called “big bang” or “big push.” This widespread view is mistaken. After surveying the reasons corruption might be self-reinforcing (or in some cases self-limiting), this paper demonstrates that corruption’s self-reinforcing property does not imply the necessity of a “big bang” approach to reform, and indeed may strengthen the case for pursuing sustained, cumulative incremental anticorruption reforms.

I hope that some readers might find the paper to be of interest. Constructive criticism and other feedback are of course most welcome!