Author Archives: Richard Messick

Will the Trump Administration Realize that Fighting Extremism Requires Fighting Corruption?

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That corruption breeds extremism is one of the abiding lessons of the last decade plus.  Whether it is Nigeria, Egypt, Somalia, Tunisia, Iraq, Afghanistan or Uzbekistan, allowing what a recent Carnegie Endowment report terms “acute, systemic” corruption to fester is the equivalent of putting out a welcome mat for extremists, home-grown and foreign. Eleven days after President Trump takes office, the world will see whether his national security team has absorbed this lesson.

January 31, 2017, is the day the Trump Administration must tell an American judge whether it will continue negotiations with the Government of Uzbekistan over the return $850 million in bribes paid in violation of the Foreign Corrupt Practices Act the Department of Justice has frozen.  Following a Bush Administration policy continued by the Obama Administration, the U.S. government position has been that such funds should go back the country of origin only if:

  1. the government take steps to curb grand corruption and
  2. the monies are used to improve the lives of ordinary citizens.

Candidate Trump called the FCPA a “horrible” law. On the 31st the world will see what that means in practice.  He could, as I explain here an article for the U.S. newspaper The Hill, tell the judge he has decided to turn the money over to the Uzbek government without strings.  That result would certainly show how horrible he thinks the FCPA is.  It would also ease the task the Islamic Movement of Uzbekistan, the Islamic Jihad Union, and the other radical groups in Central Asia have set of overthrowing the endemically corrupt Uzbek government.

Will the Trump Administration realize that fighting extremism requires fighting corruption? Visit this blog February 1 for at least the first answer to the question.

Are Better Principals the Answer to the Corruption Problem?

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Those in the business of giving policy advice know the surest way to guarantee a policymaker ignores their counsel is to say the problem is “complicated” or “there are no easy solutions” and that the best way to see the advice is accepted is to cast it in the form of a simple, straightforward solution that fits easily onto a single power point slide. World Bank economists have learned this lesson well as their recent report on how developing countries can cure corruption and related governance ills demonstrates.  Making Politics Work for Development: Harnessing Transparency and Citizen Engagement manages to state the solution to the corruption problem in one sentence: Give citizens more information about politicians so they will know which ones to vote out and which ones to keep at the next election.

The authors are able boil the complex problems of corruption and bad governance down into such a neat solution thanks to application of principal-agent theory.  But in avoiding the “it’s complicated”/“no easy solution” Scylla have they veered into the Charybdis of oversimplification?

Continue reading →

The Lawyers’ Role in Perpetuating Corruption in Nigeria

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Nuhu Ribadu, the former head of Nigeria’s Economic and Financial Crimes Commission, spoke to lawyers in Abuja on December 1 on his experience fighting corruption in Nigeria and the role the bar played.

Ribadu came to international attention in the mid-2000s for his audacious efforts to combat the high level corruption then rampant in the country, a fight that led to attempts on his life and ultimately his illegal removal from office despite protests from Nigerian civil society and the international community.  Although Ribadu remains active in Nigerian public life, chairing a high level commission on corruption in the Nigerian oil industry and running twice (unsuccessfully) for public office, he has been relatively silent on the obstacles he faced as head of the EFCC.  In his December 1 speech, unfortunately at this writing still not available online, he explains how some of Nigeria’s most prestigious lawyers, known as SANs or Senior Advocate Nigeria, collaborate with some of Nigeria’s most corrupt actors to frustrate the country’s effort to eradicate corruption at the highest levels of government.

For the benefit of his friends in the international community (of which this writer is one) as well as for a useful insight on one of the challenges of tackling grand corruption, below are excerpts from that speech as reported in the Nigerian press. Continue reading →

Will Leaving His Business “Completely” Solve Trump’s Conflict of Interest Problems?

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President-elect Trump tweeted early November 30 “that legal documents are being crafted which take me completely out of business operations.”  Will this suffice to resolve concerns about the potential conflicts of interest that could arise during his presidency?  While the answers of the anti- and pro-Trump camps are predictable (a heated, vitriolic “no” and an equally heated, vitriolic “yes” respectively) for others the answer will turn on two issues:

1) What conduct they understand the conflict of interest rules prohibit, and

2) Whether they think Trump’s removing himself “completely” from his businesses is enough to prevent it.

Media coverage about conflict of interest since Trump’s election has been so colored by opposition to Trump generally that those trying to fairly evaluate Trump’s plan are likely confused about both issues.  Herewith a guide to both to help fair-minded citizens evaluate the Trump plan.    Continue reading →

The Destructive Attacks on Trump’s Ethics

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Attacking President-elect Trump on the basis of his expected violations of the conflict of interest laws provides the anti-Trump crowd a convenient outlet to vent their anger and frustration over his election.  But as the attacks continue to pop up in op-eds and on cable and be smuggled into straight news reporting, those launching them might bear two things in mind:  the attacks will surely further divide the nation and, even worse for the anti-Trumpers, make it more likely Trump will pursue the policies he espouses that they so adamantly reject.

As explained here last week, the conflict of interest laws do not apply to presidents; suggestions that Trump should follow them even though he is exempt make no sense.    Continue reading →

Conflict of Interest and President-elect Trump: A Primer

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How Donald Trump intends to keep his business interests separate from his duties as President has become a principal point of contention since he won the election eight days ago.  Trump has said he will turn over management of his affairs to his children, but critics say this is not enough and have begun stepping up an attack based on potential conflicts between his personal financial interests and his responsibilities as President.  For reasons both legal and practical, however, the attack is without substance, and continuing it only diverts attention from real worries about his policies while fueling the hyper-partisanship surrounding discussions of ethics in American political life.  Furthermore, whatever the President-elect thinks about ethics and corruption-fighting, using the conflict of interest cudgel to beat him around the head and shoulders is unlikely to make him more sympathetic to the cause readers of this Blog share. Continue reading →

Corrupt Land Grabbing: A Cambodian Response

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For the vast majority living in developing nations the principal source of wealth is  land: whether the plot where their house is located, the fields they farm, or the forestlands that provide daily sustenance.  The first effects of economic development often show up as sharp increases in the value of this property.  Once valuable only as a place to locate a small village or to eke out a living in subsistence agriculture, land prices suddenly skyrocket when an airport, ocean terminal, or other significant new infrastructure is to be located nearby.  While offering neighboring property holders a chance to escape poverty, these investments can also put them at great risk.  Land registries in poor countries are often not well-kept and registry staff poorly paid, making the doctoring or forging of ownership records possible.

An example what can happen occurred recently near Sihanoukville City, Cambodia.  After plans to expand the city’s port were announced, a powerful official connected to the port authority began a campaign to evict residents of a nearby village from land they live on and which their families have farmed for generations.  Strategically placed bribes have given him a colorable claim to the land, and he has mobilized local authorities to try and force the residents off the property.

Although all too often Cambodians in a similar situation have surrendered, a group of villagers decided to fight and turned to Bunthea Keo, a young Cambodian public interest lawyer, for help.  Thea brought suit to halt the eviction, and in a paper written for the Open Society Foundations’ Justice Initiative he explains not only the legal theories behind the case but the organizational and financial issues involved in bringing a public interest suit on behalf of a large group of citizens in Cambodia.  It is the ninth in a series of papers the Justice Initiative has commissioned on civil society and anticorruption litigation following earlier ones on i) standing by GAB editor-in-chief Matthew Stephenson, ii) civil society litigation in India by Vidhi Centre for Legal Policy Director Arghya Sengupta, iii) private suits for defrauding government by Houston Law School Professor David Kwok, iv) private prosecution in the U.K. by Tamlyn Edmonds and David Jugnarain, v) damages for bribery under American law by this writer, vi) public trust theory by Professor Elmarie van der Schyff, a professor of law at South Africa’s North-West University, vii) private suits for procurement corruption by Professor Abiola Makinwa of the Hague University of Applied Sciences, and viii) international tribunals as a means for forcing government action on corruption by Adetokunbo Mumuni, Executive Director of the Social and Economic Rights Project.  All papers are available here.

Suing Governments For Corruption Before International Tribunals: SERAP v. Nigeria

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Last week I reported that the Socio-Economic Rights and Accountability Project or SERAP , a Nigerian NGO, was being sued by the country’s former first lady for urging the authorities to investigate her for receiving “small gifts” ($15 million in total) while her husband served in government, first as Governor of the oil-rich state of Bayelsa, then as Vice-President and later President.  While the saga of the first lady and her “small gifts” recently took another unusual (bizarre?) legal twist, this week the focus is on SERAP and one its most creative approaches to combating corruption in Nigeria: the precedent setting suit it brought against the Government of Nigeria in the Court of Justice of the Economic Community of West African States  for corruption in education.

The ECOWAS Court is one of several regional international tribunals established to hear disputes between neighboring countries, in its case 15 states in West Africa.  The Court’s statute also grants it jurisdiction to entertain actions against a member state for human rights violations.  In 2007 SERAP took advantage of this provision to bring the Government of Nigeria before the bar of justice for its failure to curb massive corruption in the agency funding schools in disadvantaged areas of the country.  While SERAP’s argument was straightforward — Nigeria’s inability to curb corruption denied citizens’ their constitutionally guaranteed right to education – the SERAP suit appears to be a first: a human rights action based on a state’s failure to control corruption.

The Nigerian government lodged several objections in opposition: SERAP had to take its case first to Nigerian courts; the ECOWAS Court had no jurisdiction to hear the matter; SERAP had no standing to sue; the right to education was not justiciable.  But in its landmark decision in favor of SERAP the Court swept all of them aside, ruling that corruption in education could constitute a violation of the right to education if government did not make a serious effort to prosecute the corrupt officials and recover the stolen funds.  SERAP v. Nigeria stands as an important precedent for civil society groups in countries where governments are unwilling to address deeply-ingrained, high level corruption that denies citizens constitutionally guaranteed rights.  It also demonstrates how an energetic civil society group committed to fighting corruption can find a creative legal argument to unlock the courthouse door.

Details on the case are in this paper by Adetokunbo Mumuni, SERAP’s Executive Director and its lead counsel in the action.  The paper is the eighth in a series commissioned by the Open Society Justice Initiative on civil society and anticorruption litigation.  It follows earlier ones on i) standing by GAB editor-in-chief Matthew Stephenson, ii) civil society litigation in India by Vidhi Centre for Legal Policy Director Arghya Sengupta, iii) private suits for defrauding government by Houston Law School Professor David Kwok, iv) private prosecution in the U.K. by Tamlyn Edmonds and David Jugnarain, v) damages for bribery under American law by this writer, vi) public trust theory by Professor Elmarie van der Schyff, a professor of law at South Africa’s North-West University, and vii) private suits for corruption in public procurement by Abiola Makinwa, a lecturer in commercial law at the Hague University of Applied Sciences.  All papers are available here on the JI Web site.

Nigeria’s Former First Lady: Stop Attacking Me for Gifts I Received

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Ex-Nigerian First Lady Patience Jonathan’s patience is being tested by a campaign of calumny being waged against her.  Since her husband left office in 2015 she has been under constant attack merely because she recieved some small gifts from friends and well-wishers while her husband served in government.   The Nigerian NGO Socio-Economic Rights and Accountability Project is trying to force the authorities to open a criminal case against her and the Economic and Financial Crimes Commission, Nigeria’s anticorruption agency, wants to seize the gifts.

It is easy to see why the attacks are testing Patience’s patience.  The gifts were all small, some as little as $800, and altogether they total just $15 million.  Moreover, as she has repeatedly explained, she had nothing to do with the money being deposited into bank accounts in someone else’s name.  An assistant did that without telling her, and in any event why does it matter?  She was the only one authorized to write checks on the account.

Thankfully for the former first lady, members of the Union of Niger Delta Youth Organisation for Equity, Justice and Good Governance have come to her defense.  In a complaint filed in early October for themselves and Mrs. Jonathan the group asked the Federal High Court in Lagos to enjoin the NGO SERAP from “taking any further steps in further vilification, condemnation and conviction of the Former First Lady Mrs Dame Patience Jonathan . . . and in the use of the judicial process for that purpose by the extremely publicized pursuit of any application for the coercion of the Attorney General of the Federation to prosecute the Plaintiff/Applicant for owning legitimate private property . . . .”  The group’s complaint seeking the injunction against SERPA goes on to detail just how unjust the criticism of Dame Patience is – Continue reading →

3 Things To Do About Corruption Rather Than Gripe

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Most of what passes for commentary or learned analysis about corruption in the press, on social media, or elsewhere does little more than say (again and again and again) that corruption is a pressing problem and that it should be addressed.  However valuable such calls to action might have been in the early years of the anticorruption movement, as Matthew suggested some time ago (almost two years ago to be exact), the principle of diminishing returns has long since set in.  I have serious doubts that another newspaper op-ed, “thought piece,” or (even) blog post will prompt one more policymaker or citizen to take up the anticorruption cause. If they have not by now, they simply aren’t going to.

Rather than wasting energy and time and sending more innocent trees to their death in the hopes of enlisting the remaining holdouts to the cause, here are three projects activists can tackle that will make a difference in the fight to curb corruption. Continue reading →