Author Archives: Richard Messick

Has Nigeria Found A Way to Make Release of the CPI Useful?

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Transparency International releases its 2021 Corruption Perceptions Index this January 25, and while many will welcome the attention it puts on corruption, for others release will mean nothing but headaches. They will spend that day and the days and perhaps weeks after trying to explain why their country’s score on the CPI has little or nothing to do with how well the country is doing in the fight against corruption.  

For regulars in the corruption battle, this is common knowledge (distilled here, here, and here).  They know the value of the CPI lies in the pressure release puts on governments to take the fight against corruption seriously – not in measuring the progress a government is making in the fight. But presidents, prime ministers, parliamentarians, and assorted national kibitzers don’t. Sporadic followers of the corruption issue, on January 25 they will read that their nation ranks worse on the CPI than some neighboring county, a rival, or Denmark, Norway, or Singapore. They will demand to know why. Or at least why efforts over the past year have not paid off in a better ranking.

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When you Fight Corruption, it Fights Back

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Nuhu Ribadu, first head of Nigeria’s premier anticorruption agency, famously made the observation that headlines this post sometime between the first and second attempt on his life. Speakers at “Anticorruption Prosecutors Under Attack, a side event at the just completed Conference of State Parties to the UN Convention Against Corruption, explained that he is not the only one whose life, career, and reputation have come under attack from those being investigated for corruption.  

Organized by the government of Norway and the Basel Institute on Governance, the event publicized cases like Nuhu’s (here) and the late Maxwell Nkole of Zambia (here), corruption fighters who fled their homeland to escape assassination. Speakers discussed more recent cases too, including the less lethal but more insidious attack against Italian prosecutors Fabio Pasquale and Sergio Spadaro. The two face trumped up criminal charges and administrative proceedings for having the audacity to prosecute two large, Western oil companies for bribing Nigerian officials (here).

Maxwell and Nuhu likely survived the attempts to silence them permanently thanks to the Corruption Hunter Network. The brainchild of Eva Joly, France’s premier anticorruption fighter and supported by the Norwegian government, the group of anticorruption investigators, prosecutors, and activists meets twice a year to provide one another moral support. It scrounged up funding for year-long “sabbaticals” for Nuhu and Maxwell in countries where their enemies dared not to touch them.

Nuhu and Maxwell’s support was ad hoc and thanks only to a handful of bureaucrats willing to read internal agency guidelines “liberally.” As the fight against corruption intensifies, we can expect more Nuhus, Maxwells, Fabios, and Sergios. Will those in the international community committed to the fight against corruption support these frontline troops?

The full video of “Anticorruption Prosecutors Under Attack” is here, the audio file here. More on the event, the speakers, and the key takeaways is on the Basel Institute’s website here.

Eliminating Barriers to Compensating Corruption Victims  

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StAR yesterday held six panels on asset recovery issues as part of the meeting of the Conference of State Parties to UNCAC. I participated in the one on compensating corruption victims along with Costa Rican prosecutor Greysa Barrientos, Kate McMahon, Chair the International Bar Association’s Anticorruption Asset Recovery Subcommittee Kate McMahon, and Juanita Olaya Garcia of the UNCAC Coalition.

Panel moderators Yara Esquivel of StAR and Felipe Falconi from UNODC asked that I discuss what avenues of relief were available to corruption victims, the main challenges they face in recovering damages, and what reforms are needed to overcome those challenges. My remarks follow.   

Avenues of relief. Corruption victims generally have two options for obtaining compensation – as an adjunct to a criminal prosecution of the perpetrators by the state or by bringing a private civil suit against them.

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Civil Society to the CoSP: Corruption Victims Are Entitled to Compensation

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The Council of State Parties to the United Nations Convention Against Corruption, the governments of the now 188 nations that have ratified the Convention, meets this week to review its implementation.  

When it comes to prosecuting bribery, embezzlement, and other corruption crimes, progress has been made. The UN Office of Drugs and Crime reports that “[i]n a considerable number of countries, legislative amendments and structural reforms have produced coherent and largely harmonized criminalization regimes, tangible results in terms of enforcement capabilities and action.”

But the Convention’s “enforcement capabilities and action” extend beyond criminal prosecution.  Article 35 requires state parties to ensure those injured “as a result of an act of corruption” can enforce a claim for damages against the perpetrators.

Here little progress has been made.  The UNODC, Transparency International, academics (here and here), and this writer have all found that few corruption victims have recovered damages. 

The UNCAC Coalition, a global network of over 350 civil society organizations in 100 plus countries, urges the CoSP to address this gap in implementation.  In a formal submission, the coalition offers a series of recommendations to see that victims, either individually or through a class or representative action, can recover full compensation for the harm caused by corruption. It’s timely and important submission is here.

Italy: Safe Haven for Bribe Payers?

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That a nation with the third-largest economy in the European Union and the eighth-largest in the world would be countenancing bribery in today’s world seems beyond the pale. Yet an analysis of recent case law and record of convictions shows just that.  Done by the Italian NGO ReCommon and submitted on a confidential basis to the OECD’s Working Group on Bribery, it concludes that it is “nigh on impossible to obtain a conviction in Italy for international corruption.”  

The group’s conclusion rests not only on Italy’s dismal record of convictions of Italian companies and nationals for bribing foreign public officials, but decisions in three recent cases. All raise a virtually insurmountable hurdle to a conviction for bribery. In any case. No matter whether the bribe-taker is an official of a foreign government or of the Italian government. In all three, courts have ruled that to prove bribery, the prosecution must show there was an express agreement to bribe.

In today’s world, just how many businesses send a letter to an official saying “I will pay you X in return for your providing the company Y”? As an American Supreme Court justice observed some 40 years ago, were the law to impose such a requirement, it could be easily frustrated “by knowing winks and nods.” Yet an express agreement to bribe is exactly what Italian judges now demand to convict bribe-takers and payors. Why has the Italian judiciary, historically one of the most renowned in the civil law world, decided to frustrate the prosecution of bribery cases?

Italy’s compliance with the OECD Antibribery Convention will shortly be reviewed by peer nations. It simply cannot be found in compliance so long as its courts require an express agreement to bribe to find defendants guilty. The OECD reviewers should follow ReCommon’s analysis, which in the public interest is revealed here, and condemn the recent turn in Italian law making the nation a safe haven for bribery.

Defining Corruption: How Readers’ Views Align with Courts and Other Authorities

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There has been a vigorous debate on the blog about the definition of corruption with distinguished academics and practitioners weighing in on what they argue constitutes corrupt behavior by a public official.

Readers will recall that in early November I asked what they thought. I described six cases where a court, ethics agency, or public opinion had decided whether certain conduct was corrupt, and without revealing how the authority ruled, readers were invited to say what they thought. A number did, often with thoughtful explanations supporting their view.

Below is how their answers compare with the authority who made the decision. As the tabulated replies show, readers are far tougher when it comes to ruling conduct corrupt than courts or even the most important court of all, the court of public opinion. The rationale behind the authority’s decision follows. Comments invited.

CaseCN.C.
1. Vanuatu majority government provides MPs positions in return for vote against no confidence measure. Court ruling: NOT CORRUPT34
2. U.S. Senate seat in return for appointment to cabinet. Court ruling: NOT CORRUPT52
3. Oakland Mayor oversees redevelopment funds to neighborhoods that could include his own. Court ruling: NOT CORRUPT (technicality)13
4. Independent New South Wales MP resigns seat in return for job in public service. Public Opinion: CORRUPT51
5. Appointee in newly elected Kentucky government asks for share of fixed commission government pays for insurance. Court ruling: NOT CORRUPT50
6. Canadian PM lobbies national development bank to loan to hotel abutting golf course he has part interest in. Ethics counsellor: NOT CORRUPT40

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Corruption’s War on the Law

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“Corruption’s War on the Law” is the headline on an article Project Syndicate just published. There former French magistrate and corruption fighter Eva Joly recounts the fate of those who have dared to confront powerful networks of corrupt officials and those who corrupt them.  Maltese investigative journalist Daphne Caruana Galizia was murdered by accomplices of those she was investigating. So was Rwandan anti-corruption lawyer Gustave Makonene. So too was Brazilian anticorruption activist Marcelo Miguel D’Elia.

After a second attempt on his life, Nuhu Ribadu, first chair of Nigeria’s Economic and Financial Crimes Commission, the country’s premier anticorruption agency, famously remarked:

“When you fight corruption, it fights back.”

In her article, Mme. Joly, who received numerous threats for investigating and ultimately convicting senior French officials for corruption, explains that violence is just one way corruption “fights back.”  The most recent head of Nigeria’s EFCC was arrested and detained on trumped up charges of corruption. Ibrahim Magu has been suspended from office pending further proceedings, proceedings unlikely to be held this century.

At the same, Nigerian anticorruption activist Lanre Suraju is, as this blog reported last week, being charged with “cyberstalking” for circulating documents from a court case that implicate associates of the current Attorney General in a the massive OPL-245 corruption scandal. This form of intimidation, which Nigerians have dubbed “lawfare,” has now been exported to Europe. Italian prosecutors are being subjected to both criminal charges and administrative action for having the nerve to prosecute one of Italy’s largest companies for foreign bribery (here).

President Biden has declared the global fight against corruption to be a national priority, and he will shortly host a democracy summit where Brazil, Italy, Malta, Nigeria, and Rwanda will be represented at the highest level. Might he remind them which side of the fight they should be on?

Letter to Nigerian Attorney General Malami from Civil Society: Stop Harassing Anticorruption Activist

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Civil society organizations are poised to write Nigerian Attorney General Abubakar Malami asking he dismiss criminal charges against long-time Nigerian anticorruption activist Olanrewaju Suraju. His crime? Circulating documents implicating an associate of the Attorney General in the alleged payment of $1 billion by oil giants Royal Dutch Shell and ENI in return for rights OPL-245, Nigeria’s most lucrative offshore oil block.  

Not only is a criminal indictment for Suraju’s conduct absurd on its face, the Community Court of Justice for the Economic Community of West African States, whose decisions are binding on Nigeria, has declared the cyberstalking law under which he is being charged in violation of the African Peoples and Human Rights Charter.  

The text of the letter is below. Concerned NGOs and individuals are invited to add their names. Use the “Contact” function at the top of the page. Alternatively, letters supporting Nigerian activists’ freedom to urge that those responsible for corruption be brought to justice can be sent to Nigerian President Muhammadu Buhari through info@statehouse.gov.ng

Dear Attorney-General Abubakar Malami:

Our attention has been drawn to press reports of an indictment, approved by your office, against Olanrewaju Suraju, chair of the anti-corruption and human right group HEDA, for alleged cyberstalking.[1]

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Guest Post: Lessons from Athenians’ Efforts to Define Corruption

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Gab readers have been treated to a lively and valuable debate in past weeks on precisely what we mean when we say that someone or some behavior is “corrupt.” Many readers have joined the discussion. Responding to my request for their views by offering comments and analyses of six real world cases where a court, ethics commission, or legislature has been asked to decide whether the conduct of a public official was corrupt.

I had promised to post “the right answers” to the six, or at least the answers the court, commission or legislature gave this week. I am putting it off to share the guest post below by classics scholar and American attorney Kellam Conover. Drawing on the dissertation that garnered him a PhD. in Classics from Princeton, he explains how citizens of ancient Athens decided when an official’s conduct was corrupt. What he takes from their method provides the only way I see for arriving at genuine right answers – not only to the six cases I presented but to the general issues of how to define corruption and how to measure our progress in overcoming it. Many thanks Kellam.

I have read with great interest the fascinating discussion that has unfolded recently among Bo Rothstein, Matthew Stephenson, Robert Barrington, Paul Heywood, and Michael Johnston.  The questions they raise about how to define corruption, how to link up theory with practice, and how to measure success are all ones I have grappled with since writing my dissertation on Bribery in Classical Athens. 

As a historian, I’ve spent far more time describing corruption than prescribing solutions.  But I hope a few observations from ancient Athens will be helpful to others.  First, in my view corruption defies definition because it is an inherently political claim that changes with different social and political contexts.  Second, and as a result, it may be fruitful to augment anti-corruption programs with institutions specifically designed for articulating, contesting, and legitimating evolving political norms.  Finally, I offer one potential metric of success:  i.e., whether patterns of corruption in a polity have grown less disruptive over time.

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Conference on Empirical Approaches to Anti-Money Laundering and Financial Crimes

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The Central Bank of the Bahamas hosts the Third International Research Conference on Empirical Approaches to Anti-money Laundering and Financial Crimes this January 20 and 21 in Nassau. 

Countering the laundering of the proceeds of corruption and other financial crimes has become a critical issue at both the national and international level. Enormous time and attention has been devoted to putting an end to money laundering and enormous sums spent complying with existing laws and directives. Few, however, are happy with the results to date. 

The principal reason for the failure of anti-money laundering laws is the lack of a sound empirical base on which to build an enforcement regime, a point their critics have made at since Reuter and Truman’s 2004 Chasing Dirty Money. The conference is an important step towards remedying our lack of knowledge about how such basic issues as how money launderers works, where the risks are the greatest, and what are the most effective means for reducing them. Details on attending either in person or online here. Current list of speakers and papers follows.

[Submissions to last week’s poll on the definition of corruption still being received.  It is not too late to enter with the chance to win a lifetime subscription to GAB at the current rate.]

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