Category Archives: Commentary

Coordination by Legislation: Is Regional Anticorruption Legislation in the East African Community a Good Idea?

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This past September, at a meeting of the East African Association of Anti-Corruption Authorities, Daniel Fred Kidega, the Speaker of the East African Legislative Assembly (EALA) announced that the regional legislature planned to consider a series of anticorruption and whistleblower bills (also reported here). (The EALA is the legislative body of the East African Community, a treaty organization to which Burundi, Kenya, Rwanda, Tanzania, and Uganda are members.) According to the Speaker’s remarks, “[t]he Laws passed by EALA supercede those of the Partner States on matters within the purview of the Community.”

Details on the legislation are scant, and movement on this proposal does not seem imminent. (Drafts of the proposed legislation are not available on the EALA website, nor could I find them through other sources. And at the mid-October EALA session, anticorruption does not appear to have been on the agenda.) Furthermore, the EAC Treaty does not provide the EALA all of the legislative power the Speaker’s statements suggest, because, according to Article 63 of the EAC Treaty, acts of the EALA only become effective law for member states if each of the five Heads of State “assents” to the measure. Nonetheless, given the interest in East Africa and elsewhere in greater international cooperation on anticorruption efforts, it’s worth reflecting on whether regional anticorruption legislation such as that proposed by Speaker Kidega is a good idea.

I tend to think not. While regional coordination, particularly through conventions, can be an effective way to strengthen anticorruption efforts (as Rick previously discussed in a comment on this post), it is not a good idea in every circumstance (as Matthew noted in a recent post in the context of proposals for a ASEAN Integrity Community). Although the EAC might be able to perform a helpful goal-setting and coordinating role (something akin to an UNCAC or African Union Convention on Preventing and Combating Corruption), the proposal for the EALA to enact more binding regional anticorruption legislation involves more risks than benefits.

Continue reading →

When Should Corruption Be Tolerated? The Case of the Padma Bridge

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In a recent post, Rick examined the Canadian Supreme Court case concerning a high-level corruption scheme implicating Bangladeshi government officials and executives at SNC Lavalin, a Canadian construction company, over a cancelled World Bank project in Bangladesh. The $1.2 billion project underlying the case was the Padma Bridge, a massive infrastructure that some estimated would increase the Bangladeshi GDP 1.2% each year.

Upon discovering the corruption scheme in 2011, the World Bank—recognizing the importance of the infrastructure project for the Bangladeshi people—initially responded by attaching conditions to the continued funding of the bridge. Specifically, the Bank requested that the Bangladeshi government (i) place all public officials involved in the investigation on leave pending the completion of the investigation, (ii) appoint a special inquiry and prosecution team, and (iii) agree to provide full access to investigative information. However, on June 29, 2012, the World Bank cancelled its funding of the project, deeming the Bangladeshi government’s response “unsatisfactory.”

Although neither the World Bank nor SNC Lavalin are involved in the project anymore, the government of Bangladesh is nonetheless moving ahead with the Padma Bridge, and has awarded the construction contract to a Chinese firm. Since the World Bank withdrew its involvement, the estimated cost of the bridge has climbed by over US$1 billion, and the expected completion date is being pushed back by two years to 2020. These climbing costs and greater delays suggest not only less efficiency, but also that even more money is being siphoned off by corrupt public officials, to the detriment of the Bangladeshi people.

Because of this, it may seem that the World Bank’s decision to disengage from the project, and allow the Bangladeshi government proceed on its own–without any Bank oversight–was a misguided policy. I understand this view, but on balance I do not agree. While the World Bank’s decision to terminate its involvement in the project may have increased costs and corruption in the short run, in this case the Bank made the right call. That does not mean that the Bank should have a “zero tolerance” policy that requires it to suspend any project where there is evidence of corruption of any kind. But in the particular circumstances of this case, withdrawal was the best of the Bank’s bad options.

Continue reading →

Some Worrisome Russian Rhetoric at the UNCAC Conference of States Parties

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My post a couple days ago expressed some discomfort with the decision to hold the Conference of States Parties to the UN Convention Against Corruption in Russia, given Russia’s track record on this issue, and my concern that the Russian government hopes to use this event more as a PR exercise than anything else. Apropos of these concerns, I finally had a chance to watch some of the video from the event, and one particular passage in the opening remarks of Sergei Ivanov (Chief of Staff of the Presidential Executive Office and a Putin crony) caught my attention. Sandwiched in between claims that recent surveys show corruption in Russia is decreasing and descriptions of all the measures Russia is supposedly taking to combat corruption, Mr. Ivanov said (and here I’m transcribing the English simultaneous translation, since I can’t speak Russian):

We firmly believe that anticorruption activities at the international level require clear rules and agreed efforts between countries. Imposing standards, however, which certain countries are not willing to accept, is not acceptable—all the more so, given that we have seen on more than one occasion that when one country establishes standards of behavior, it tends to be that this is unacceptable to other countries, and it can indeed be harmful. In this connection, we believe that when implementing international anticorruption standards, we need at all times to take on board the specificities of each individual state. I would note also that in the Russian Federation the system of anticorruption measures is based on our national legal culture, which takes on board our historical and economic and social development trends, and the general interests of our society.

Maybe I’m just being paranoid, but to me this sounds an awful lot like a veiled warning that the international community, both within and outside the UNCAC review process, should refrain from criticizing Russia (or other countries) for failure to live up to international standards, on the grounds that each state – and Russia in particular – has its own unique circumstances. Of course, at a high level of generality, Mr. Ivanov’s remark is unexceptionable, and UNCAC already makes plenty of allowances for differences in national legal traditions and political systems. But the spirit of UNCAC is very much to hold every signatory country to a higher standard. Insofar as Mr. Ivanov’s statement is meant to suggest that other countries should not be subject to criticism for failure to live up to international anticorruption standards—particularly in the context of the second cycle country reviews, beginning this year—this seems to me contrary to the point of UNCAC and the associated review process.

(For those who are interested, the video of the full opening ceremony, including Mr. Ivanov’s address, is here, and the portion of the speech I quoted above can be found at 2:37:18-2:38:26.)

The Case of the Disappearing Transparency Report

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Last week a colleague sent a link to a report assessing Norway’s compliance with its promises to the Open Government Partnership to increase government transparency.  Surprisingly, given the Norwegian government is considered one of the more open and transparent on the planet, the authors gave the government low marks. What’s even more surprising is their candor in assessing the transparency movement in Norway. They suggest that transparency has become an end in itself.

My fear is that this is a trend not confined to Norway.  Rather than pursuing transparency as a means to a more accountable, less corrupt government, the Norwegian case illustrates what has become all too common among transparency advocates: they have come to believe that transparency is an end in itself — to be pursued no matter the consequences.

Shortly after the report appeared on the website of the NGO Engine Room, its institutional author, it disappeared — which may mean I am not the only one who found the report quite damning.  In any event, while I didn’t download the entire report before it was taken down, I did copy an excerpt from the abstract showing my fear is not fanciful: Continue reading →

The UNCAC States Parties Meeting, and the Political Symbolism of Venue Choice

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The Sixth Conference of States Parties (CoSP) to the United Nations Convention against Corruption (UNCAC) is being held this week, in St. Petersburg, Russia. From a quick glance at the provisional agenda, it looks like some of the topics that delegates will focus on include prevention, asset recovery, and international cooperation, as well as broader issues related to UNCAC implementation. (For more information, see here.) I don’t really have much to say about the substance of the meetings, not least because they’re still in progress, and much of the actual discussion is taking place behind closed doors. Rather, I wanted to take this opportunity to say in public what I know a lot of people have been mumbling and/or grumbling about in private: There’s something a bit ironic, maybe even perverse, about holding the UNCAC CoSP meeting in Russia, of all places. It seems about as appropriate is it might be to hold a CoSP for the Convention on the Elimination of All Forms of Discrimination against Women in Saudi Arabia. Continue reading →

Canada, Camembert, and Controversy: How to Save the Canadian Senate

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On Monday, October 19th, Canadians voted in the first new Prime Minister in over a decade. The Liberal party walloped the reigning Conservative party, capturing 55% of the seats in the House of Commons, while the Conservatives retained only 29% of the seats. But the Canadian public’s desire for change is not limited to the House of Commons. The Canadian Senate, the unelected chamber of “sober second thought,” has been rocked by an expenses scandal reminiscent of the 2009 MP expense scandal in the United Kingdom (see here), and the ongoing series of minor expense scandals in the United States (see here).

In late 2012 it was revealed that four Canadian Senators – Pamela Wallin, Patrick Brazeau, Mike Duffy, and Mac Harb – used their Senate expense accounts for personal and private business. As a product of these revelations, all four resigned or were removed from office, and all four have been indicted on criminal charges. In the response to the unfolding scandal, Auditor General Michael Ferguson launched an investigation into the finances of all Canadian Senators and found about 840,000 dollars in suspect claims. His investigation pointed to a systematic failure on the part of Senators to provide appropriate documentation for their expenses and to “prioritize consideration of the cost [of their expenses] to taxpayers.” (As with most proper scandals, there have been moments of levity in addition to frustration. Ferguson’s audit report suggested Canadian Senators should not claim per diem meals when other food had been made available, but Senator Nancy Ruth took umbrage at the suggestion that she was obligated to eat a free airplane breakfast consisting of, in her words, “ice-cold Camembert with broken crackers.”)

Partly as a result of this scandal, faith in the Canadian Senate is at an all-time low. Before his defeat, Conservative Prime Minister Stephen Harper had stopped nominating new Senators. In 2014, the Liberal party kicked all of its Senators out of the party’s ranks, thereby converting them to “independent” Senators. The NDP, Canada’s third largest party, has long called for abolishing the chamber entirely. What, then, should be done to reform Canada’s beleaguered Senate? Ferguson’s audit report offers several promising proposals for addressing the concerns about Senator integrity  But the problems with the Senate as an institution run deeper, and will likely call for more thorough reform (even if abolition of the Senate is politically and legally infeasible). Continue reading →

Do Corrupt Politicians Deserve a Second Chance?

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In 2003, Joe Ganim left his fifth term as mayor of Bridgeport, Connecticut in disgrace. A federal jury convicted Ganim on sixteen corruption charges, including racketeering, extortion, bribery, and mail fraud, and he served seven years in prison. Yet five years after his release, Ganim is poised to become mayor again, having won the Democratic Party primary (in overwhelmingly Democratic Bridgeport)—defying the predictions of those who thought his corruption sentence would make a political comeback all but impossible. Yet if Bridgeport were located just across the Connecticut border, in neighboring New York, Joe Ganim would not be allowed to run, because New York—along with several other states such as Mississippi, South Carolina, and Virginia—has a disqualification law. Such laws prevent officials who have been convicted of corruption-related crimes from running for elected office, for periods ranging from several years to life (depending on the state). We see something like this approach in many other countries as well, though different countries have adopted varied approaches to the question of whether people convicted of crimes – corruption-related or not – can run for office. In Brazil, politicians convicted of certain enumerated crimes, including corruption-related offenses, are barred for eight years pursuant to a 2009 bill (which had been championed by civil society groups). In Canada, those convicted for corrupt acts must wait seven years from the date of conviction before they can run for the House of Commons (the limit for those convicted of other crimes is five years). In France, courts have the discretion to impose, as part of criminal conviction, a period of up to ten years during which the defendant may not vote or run for public office. Other countries, like Denmark and Finland, leaves the matter up to the parliament, which can vote to disqualify someone convicted of an offense showing untrustworthiness or unfitness for public office.

Are disqualification rules of this sort a good idea? Would it be better if Connecticut had a law like New York’s, which would prevent someone like Joe Ganim from running for life? Should other democracies that suffer from widespread public corruption follow the example of countries like Brazil, which have adopted these sorts of disqualification laws? This solution is indeed a tempting one. After all, the Bridgeport race—and numerous elections elsewhere—show that voters will not always prevent those convicted of serious corruption offenses from seeking and winning public office. Yet the experience of countries that have adopted statutory disqualification signals reasons for caution. Although one must be careful about overly broad generalizations, given the extent of variation in government structure and political culture, disqualification laws raise serious risks, and may not be necessary. Continue reading →

Building Corruption Concerns into Land Registration Systems: A Lesson from Cambodia

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The low cost exchange of property is critical for economic growth, assuring that resources flow to those who can put them to their highest use.  But where property rights are insecure, where buyers can’t be sure that they will get an uncontested claim to what they purchase, that easy exchange will not occur.  Hence over the past two decades the World Bank, regional development banks, and many bilateral aid agencies have invested significant resources in helping developing nations strengthen the laws and institutions that secure property rights.  The largest investments have been in titling and registering land.  Land is the principle asset of most citizens in both developed and developing states, and although residents of wealthy countries take it for granted when buying a home that the property registry is accurate and the seller’s documents valid, this is a luxury most citizens in the developing world are denied.

But while building a land titling and registration system in a developing country is an important step in boosting growth and improving citizen well-being, it is time-consuming, costly and can go wrong in many ways.  In a 2014 article in the Asian Journal of Law and Society (earlier version here), New York University’s Leah Trzcinski and Frank Upham show how the failure to consider the vulnerability of the system to corruption derailed a Cambodian project and how greater attention to local context, in particular the high degree of corruption present in many Cambodian institutions, could have made for a far more successful project.   Continue reading →

How I Learned To Stop Worrying and Love SDG 16

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A few weeks back, I posted a skeptical commentary about the integration of anticorruption into the new Sustainable Development Goals and associated targets, in particular Target 16.5 (“substantially reduce corruption and bribery in all their forms”). Rick was even harsher. The premise of most of my criticism (and Rick’s) was that progress on Target 16.5 was likely to be measured using changes in countries’ scores on Transparency International’s Corruption Perceptions Index (CPI). It turns that this premise was (probably) incorrect.

I had based my assumption on the lengthy report released last June by the Sustainable Development Solutions Network (SDSN)—a report which had been commissioned by the UN’s Inter-Agency Expert Group on SDG Indicators (IAEG-SDG). But as Transparency International Senior Policy Coordinator Craig Fagan helpfully pointed out in his comment on Rick’s post, the more recent official information released by IAEG-SDG in September 2015 does not indicate that the CPI will be used as the principal measure for Target 16.5. Rather, the IAEG-SDG document lists as the proposed indicator the “percentage of persons who had at least one contact with a public official, who paid a bribe to a public official, or were asked for a bribe by these public officials, during the last 12 months.” (The relevant material is on page 225.) This still isn’t finalized, but it certainly appears that the IAEG is poised to endorse an experience/survey-based measure for Target 16.5, rather than the CPI-style perception index.

Is this perfect? No, certainly not. But it’s a lot better than what I’d feared. A few further thoughts on this: Continue reading →

All the Stars are Aligned in the Sky(net): Why Chinese Fugitives are Being Extradited

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Skynet. To most American audiences, this word is evokes images of the omniscient, malevolent computer in Arnold Schwarzenneger’s classic, The Terminator. But in 2015, Skynet also means something else. Media outlets and the blogosphere (including this blog) are abuzz over Chinese President Xi Jiping’s “Operation Sky Net”: the Chinese government’s efforts to repatriate a “most wanted” list of over 100 Chinese nationals suspected of criminal corruption. (The name “Sky Net” traces its origins to the Chinese idiom, “The sky may look thin and sparse, but it is vast and won’t let you escape.”) Forty of the 100 are suspected of being in the United States—a prime destination chosen for its high standards of living and, more importantly, lack of extradition treaty with China.

It is hardly news that China is doing all it can to repatriate these fugitives abroad, and it is also old news that the U.S. and China have a rocky history when it comes to extradition. As Rick mentioned in a prior post, the United States is extremely reluctant to negotiate a formal extradition treaty with China, and the reasons are plenty: In the U.S. view, China suffers from weak rule of law, lack of due process, and an ignominious record for human rights violations. In addition to precluding the negotiation of an extradition treaty, these factors also stymie case-by-case extraditions. Indeed, until last month, only two Chinese fugitives in the U.S. had been extradited in the previous two decades. All of the above would seem to suggest that China’s recent efforts would be a presumed uphill battle. But in September 2015 alone, two suspected fugitives, Yang Jinjun and Kuang Wanfang, wanted for their separate parts in vast bribery, money laundering, and public corruption schemes, were successfully repatriated to China. What changed?

One way to explain China’s recent success in securing extraditions from the U.S. is that China’s recent requests for assistance in repatriating alleged fugitives involved in corruption crimes have come at a time when the United States has made anticorruption a point of special focus. In short, the stars (in the Sky Net) aligned. Continue reading →