Today’s guest post is from Blair Glencorse, the Executive Director of the Accountability Lab, a civil society network that promotes accountability, transparency, and open government.
When corruption is deeply entrenched, it is very difficult to dislodge through criminal prosecution and similar law enforcement efforts. In systems that create very strong incentives to behave corruptly—those where powerful social norms favor graft over honesty—one can expect widespread resistance to attempts at stepped-up enforcement of anticorruption rules, given the number of people who might rationally fear being implicated in wrongdoing. Moreover, given the reluctance of participants in systemically corrupt regimes to disclose their illicit conduct and improper relationships, it is very hard to understand how the corrupt systems operate, who the most culpable perpetrators are, and how such systems can be more effectively dismantled.
A promising response to these problems might be drawn from the experience of addressing widespread human rights violations in moments of transition: truth commissions. While it would obviously be very difficult to set up such a commission during normal times, when the opportunity arises—say, after a regime change, or a significant political turnover sparked by popular protests against corruption—a country could set up an independent body—a corruption truth commission—to manage a process by which amnesty would be offered to those who had engaged in unlawful corrupt acts, in exchange for a full and truthful accounting of the corrupt conduct that they had perpetrated or witnessed.
This approach has several practical benefits. It creates a permanent record of the abuse of power, builds an evidence base to go after those perpetrators who either reject the offer of amnesty or are too high-level to be eligible, and can help countries recover ill-gotten assets. By exposing the workings of corrupt networks, corruption truth commissions would also help us better understand how to identify and counter corrupt networks before they can take root.
While the appropriate design of such a body would obviously depend on the specific circumstances of each individual country, five general principles are broadly applicable:
- First, an effective corruption truth commission requires both sufficient independence and sufficient capacity—including adequate resources and a clear legal mandate—in order to effectively manage a large-scale and politically sensitive truth-telling process.
- Second, the truth commission must engage in deep consultations with citizens and representative bodies at all levels to generate inputs on the terms of any amnesty or plea bargain provisions, in order to avoid the possibility that the Commission will come to be seen as a way for the corrupt to escape accountability.
- Third, the high-level kingpins—the Putins and Musevenis of this world—should not be eligible for amnesty from prosecution.
- Fourth, while lower-level officials should be eligible for an amnesty, they must be required to make public (or, if agreed and necessary, private) disclosures, under oath, of their corrupt activities during a specified period. These individuals should also be required to return, or aid in the location and seizure, of assets accrued from their corrupt activities. Also, while cooperating individuals would receive amnesty from criminal prosecution, they should nevertheless be barred from serving in government (or in certain sensitive government positions, such as procurement offices) for a specified period. Furthermore, if any element of an individual’s public disclosures is found to be false or unreliable, the individual should be prosecuted for their crimes.
- Fifth, those participating should be required to take part in a rehabilitation process. This is important not only because it helps prevent future acts of corruption, but also because it sends a public message of focusing on restorative justice rather than retributive justice.
The idea of using corruption truth commissions is bound to be controversial. And as Elizabeth Loftus has pointed out in a 2015 post on this blog, there have been a few experiments with these bodies at the national level, and these have had mixed results. Nevertheless, there is evidence at the city level (with the police force in Hong Kong in the 1970s for example), in the corporate world (within Siemens for instance), and in relation to related issues (such as exchange controls or tax avoidance) that amnesties can make substantial contributions to understandings and action against graft and wrongdoing. These experiences suggest the potential for this approach to work at the national level, if the commissions and the overall process are designed and implemented correctly.
Corruption truth commissions would not let corrupt officials off the hook. On the contrary, these processes would formally hold them to account, but in ways that emphasize shared veracity and practicality over individual guilt and punishment. Given the nature of corruption, the information these commissions would yield could fundamentally transform how we understand both graft and justice. To fight back against corruption, we need to shift our entire social and political cultures. These kinds of commissions would begin to do just that.