Kyrgyzstan’s Elimination of Immunity for Ex-Presidents is No Win for Anticorruption

Last October, the Supreme Court of Kyrgyzstan ruled that Kyrgyzstan’s law granting legal immunity to ex-presidents was unconstitutional on the grounds that Article 16 of the Kyrgyz Constitution makes all people equal before the law. Because the Kyrgyz immunity law was one of the broadest and most protective in the world, those of us who care about corruption might cheer this ruling as a win in Kyrgyzstan’s fight against corruption. However, viewed in context, the ruling portends problems for Kyrgyzstan’s nascent democracy and may even be counterproductive in the fight against corruption itself.

Many countries have ex-presidential immunity regimes. The downside of such laws—which exist throughout Central Asia and in countries as diverse as Burundi, France, and Uruguay­—is that, by making it difficult or impossible to prosecute a former president, these laws eliminate one of the most important deterrents to executive corruption. Kyrgyzstan’s law was especially problematic in this respect, as the immunity granted to ex-presidents was unusually broad—covering not merely conduct related to the former president’s exercise of her or his official duties, but any act committed during the term of office, with no exceptions even for high treason or other grave crimes. The Kyrgyz immunity law also protected an ex-president’s property, and it blocked searches and interrogation in addition to prosecution, thus stymying investigations even where the ex-president was just a witness. For these reasons, getting rid of the immunity law might seem like a step forward in the fight against corruption.

However, laws that grant immunity to ex-presidents also have an upside, especially in authoritarian states or fragile democracies. These laws may ease and encourage peaceful political transitions, because with no threat of prosecution, a sitting president may be more willing to peacefully cede power. One might therefore be worried about the impact of the Supreme Court’s decision on Kyrgyzstan’s fledgling electoral democracy. Those worries would be well founded given the political context in which the Supreme Court rendered its decision.

To understand why requires understanding recent events in Kyrgyz politics, and in particular how the Supreme Court’s invalidation of the ex-presidential immunity law appears to be part of a larger campaign by the current President to suppress political opposition led by his predecessor:

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The Case for State-Level Anticorruption Prosecutions in the U.S.

In the United States, the federal government’s Department of Justice (DOJ) plays a huge role in the prosecution of state-level public corruption: Over the past five years, federal prosecutors have obtained the convictions of approximately 1,700 corrupt state and local officials for corruption-related offenses. Examples range from prominent and powerful figures like Sheldon Silver, the former Speaker of the New York State Assembly, to low-level functionaries like Eloy Infante and Elpidio Yanez, Jr., two former members of the School Board of Donna, Texas.

The federal government’s primacy in prosecuting state and local corruption is no accident. One of the stories of American law enforcement in the 20th century, especially though not exclusively in the anticorruption context, is the expanding role of the federal government, an expansion that was in part a reaction to the perceived deficiencies of state law enforcement. Most states in the U.S. elect both prosecutors and judges, and concerns that these elected officials were under-resourced, incompetent, partisan, or captured by local influence-peddlers contributed to the rise of federal criminal law enforcement. The federal government’s role in prosecuting state and local corruption blossomed in the 1970s, with regional U.S. Attorney’s offices taking the lead, supported by a new DOJ Public Integrity Section in Washington, D.C. The U.S. Attorney’s offices were considered more independent and less vulnerable to capture than local law enforcement, were generally better resourced than their state and local counterparts, and were able to focus those resources on picked cases.

This system has worked well and achieved considerable success. Many argue—with justification—that the federal government’s central role in prosecuting state and local corruption was instrumental in breaking the stranglehold of corrupt political machines at the subnational level. But today, it’s important for state prosecutors to do more to supplement, and in some cases perhaps supplant, federal anticorruption prosecutions. If the story of the 20th century was a distrust of states to police their own politicians, the early 21st century story may be that we can no longer completely trust the feds to do it either. There are three main reasons why, going forward, we may need to rely increasingly on the states:

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It’s in China’s Interest to Fight Corruption on the Belt and Road

The Belt and Road Initiative (BRI), first proposed by Chinese President Xi Jinping in 2013, is a program through which China will spearhead the funding and construction of new infrastructure and trade networks across Eurasia and Africa. The centerpiece of the BRI is hard infrastructure: roads, railroads, ports, pipelines, and power plants. The scale of the proposed investment is immense: $1 trillion for projects spanning 75 countries.

The risk of corruption in such large-scale infrastructure is also immense, but at least initially, the BRI ignored corruption. When China’s National Development and Reform Commission (NDRC), the powerful government organ in charge of economic planning, issued the first comprehensive statement of the principles and framework undergirding the BRI back in March 2015, anticorruption principles were nowhere mentioned, nor did the published framework include any anticorruption measures. A later, more detailed policy document, published in 2017, also failed to include any mention of anticorruption. This posture is generally consistent with China’s traditional “non-interference” foreign policy, which makes Chinese authorities reluctant to go after overseas corruption.

More recently, though, Beijing has begun to respond to the BRI’s corruption risks. President Xi himself urged greater international cooperation on anticorruption at the June 2017 Belt and Road Forum. In September 2017, China’s Central Commission for Discipline Inspection helped organize a symposium called “Strengthening International Cooperation for a Clean Belt and Road.” And last December, the NDRC and other regulatory bodies issued new rules governing overseas investment by private Chinese companies, including a prohibition on “brib[ing] local public officials, or personnel from international organizations or related enterprises.” That same month, China’s State-Owned Assets Supervision and Administration Commission issued new guidance that requires state-owned enterprises to strengthen their anticorruption compliance procedures.

These are steps in the right direction. The question is whether the government’s newfound focus on corruption in the BRI is serious. Skeptics point out that Chinese authorities have never prosecuted a Chinese company or official for foreign bribery. Others suggest that the new regulations are more about controlling Chinese outbound investment than combating overseas corruption. I’m somewhat more optimistic, though, that Chinese authorities are serious about tackling corruption in the BRI. In my view, taking BRI corruption seriously is in the Chinese government’s interest for four reasons:

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