Category Archives: Commentary

A South African “Abuse of Public Power” Offense? Some Suggestions for Drafting a Proposed Statutory Crime

Posted on by
1

South Africa has laws which criminalize various forms of corruption (bribery, embezzlement, and the like), yet officeholders have regularly exploited their positions of power for illicit gains (see here and here). Part of the reason for this is that it often can be very difficult to prove the elements of a specific corruption offense, even when it seems clear that the officeholder abused his or her authority. To address this problem, a prominent judicial commission in South Africa (known as the Zondo Commission) recently recommended that South Africa adopt a statutory criminal offense for the “abuse of public power.” The proposed offense would cover “any person who exercises or purports to exercise any public power vested in such person…otherwise than in good faith and for the purpose for which such power was conferred,” and if the prosecution can prove such abuse of public power, then the defendant can be subject to up to 20 years imprisonment and/or a maximum fine of approximately US$12 million.

If the offense sounds very broad, that’s because it is. The Zondo Commission’s proposal contemplates a low threshold for what would constitute an abuse of public power, with no restriction to officials of senior rank. To illustrate, the Zondo Commission offered a wide range of potential examples of “abuse of public power,” including not only conduct such as the president granting an unauthorized person access to the “national wealth,” but also conduct like a junior official who suspends a colleague due to “envy or revenge.” Continue reading →

Corruption-Proofing Legal Norms: A Technique Worth Copying?

Posted on by
3

“Corruption-proofing” is a method for assessing whether a draft law or regulation poses a risk of corruption. A independent expert analyzes whether the way a proposed legal norm is drafted or to be implemented is likely to pose a risk of corruption and if so, how it can be amended to minimize or eliminate the risk. First used in the early 2000s by EU Eastern Partnership Countries, it has since spread to other states in Eastern Europe and Central Asia and to South Korea.  

The technique’s immediate value is that it gives lawmakers a chance to revise their drafts to address the corruption risks they might create. Of even greater import, when citizens or civil society have an opportunity to weigh in on corruption risks, it opens the door to public discussion and participation in what is government’s most critical task: the making of legal norms binding on all.

My reading of the experience with corruption-proofing suggests others would benefit from adopting a similar procedure. What I learned about that experience is summarized below. Comments welcome and information on other studies or countries where it has been tried most welcome.

Continue reading →

Should Culpable Whistleblowers Be Eligible for Rewards?

Posted on by
Reply

John Doe is a whistleblower who provided critical information to the U.S. Securities and Exchange Commission (SEC) regarding an international bribery scheme, assisting the agency in bringing a successful enforcement action. Doe timely filed an application for reward under a provision of federal law that directs the SEC to pay an award to whistleblowers who voluntarily provide original information to the agency, contingent on such information leading to a successful SEC enforcement action with monetary sanctions exceeding $1 million. Yet, in Doe’s case, the SEC denied his application for a reward—and the courts upheld this denial—because Doe himself had already pleaded guilty to bribery charges related to the same scheme he helped expose. Under the relevant statute, the SEC is barred from paying an award to any whistleblower who is convicted of a criminal violation “related to the [enforcement] action for which the whistleblower otherwise could receive an award.” In other words, if a whistleblower provides the SEC with information on a particular corruption scheme but is convicted of a crime related to that same scheme, as in Doe’s case, they are ineligible for reward.

What about whistleblowers who are culpable in the unlawful scheme they help expose, but who have not been criminally convicted in connection with that scheme? The SEC has explicitly declined to institute a rule barring culpable but non-convicted whistleblowers from receiving an award. Therefore, participants in an unlawful scheme, including a bribery scheme, may still receive an award if they blow the whistle on the offense, so long as they are not convicted for their role. The SEC’s position has been criticized as both unfair and potentially harmful. During the agency’s rulemaking process, several commenters, including a group of senior corporate executives and the American Bar Association, advocated for a more stringent rule in order to avoid incentivizing violations of securities laws. Recently, a Bloomberg Law article branded the program as “enrich[ing] fraudsters,” reflecting the continuing sentiment that no culpable whistleblower should be eligible for reward.

These criticisms are misplaced. While it is undoubtedly important to ensure that whistleblowers cannot profit from their own wrongdoing, it would be unwise to implement a more stringent standard than the one set out in the SEC’s current rule.

Continue reading →

Full Disclosure of Donations to Intra-Party Political Campaigns: An Anticorruption Imperative in South Africa

Posted on by
1

In South Africa, the Political Party Funding Act (the PPFA) regulates campaign donations and expenditures to political parties. By imposing various limits and transparency requirements, the PPFA—which is overseen by South Africa’s Electoral Commission—is supposed to prevent corruption and other forms of undue influence that campaign donors may seek to exert over officeholders. But South Africa’s political campaign financing laws contain a significant loophole, one that arises due to an unusual feature of how appointments to the executive branch of government work in South Africa. In contrast to many other jurisdictions, in South Africa members of the incoming governing coalition who seek appointment in the executive branch (including the president) engage in hotly contested intra-party political campaigns, and these campaigns are also funded through donations. Until recently, not only were donations to these intra-party campaigns not regulated by the PPFA, but they did not have to be disclosed under the Executive Ethics Code (Ethics Code). This potentially opened the door for corruption and influence peddling, with millions of dollars funneled to campaigns of South African politicians who sought positions in the executive branch.

For instance, President Cyril Ramaphosa’s 2017 intra-party political campaign (the “CR17 campaign”) to become president of the African National Congress (ANC) and, eventually, South Africa, received an estimated US$20 million in donations. It was subsequently uncovered that US$37,000 had been donated by a corrupt entity formerly known as Bosasa. Bosasa was notorious for making exorbitant donations to the ANC as a quid pro quo to secure significant contracts from the ANC-led government (see here and here). While it remains to be proven whether the allegations that Bosasa’s donation to the CR17 campaign was nefarious, or whether Ramaphosa personally benefited from donations made to his campaign, the non-disclosure of these and similar donations raises serious risks.

Recently, however, the Constitutional Court held that the Ethics Code in its current form is unconstitutional insofar as it fails to require disclosure of all donations made to intra-party political campaigns. The Court reasoned such non-disclosure deprived South African citizens of their constitutional right to information that is essential to making informed political choices when exercising their constitutional right to vote; the Court also concluded that this lack of transparency increased the risk of corruption. The Court mandated the president cure the defect arising by amending the Ethics Code by September 2023. The Court did not, however, prescribe the precise form the amendment should take because doing so would be inconsistent with the role of the judiciary under South Africa’s separation-of-powers doctrine.

When amending the Ethics Code to comply with the Court’s ruling, the guiding principle should be, to the extent feasible, to align disclosure obligations for donations to intra-party campaigns with the obligations currently imposed by the PPFA on inter-party political campaigns. Applying that principal suggests that the Ethics Code should be amended to impose the following two core requirements: Continue reading →

Statutory Leniency for Bribe-Givers in Egypt: Revolutionary or Reprehensible?

Posted on by
2

Bribery and other forms of collusive corruption are notoriously difficult to detect. In many cases, the only people who even know that a crime has been committed are the perpetrators. To address the inherent difficulty of proving bribery, many countries use so-called leniency agreements, in which the government offers some form of sanction reduction or exemption to parties who voluntarily self-report and provide evidence against co-conspirators. Most of these leniency programs are designed and implemented by prosecutors’ offices (though they may be authorized by statute). Prosecutors exercise discretion in deciding whether and to what degree to offer sanction reductions to cooperating parties. Under the typical anticorruption leniency program, a self-reporting bribe-giver cannot claim, as a matter of law, an entitlement to any sort of sanction exemption.

Egypt is different. Unusually, and perhaps uniquely, Egypt’s anti–bribery law (Article 107bis of the Penal Code No. 58 of 1937) offers a full and absolute exemption from sanctions for any bribe-giver who self-reports and gives evidence against the culpable bribe-taker.

This approach is misguided, for several reasons: Continue reading →

When and Why Do Whistleblower Reward Programs Succeed?

Posted on by
Reply

It is often difficult to expose and unravel corruption schemes without the cooperation of insiders. Yet would-be whistleblowers are frequently deterred from making disclosures due to the personal and professional risks of doing so. One increasingly popular way that countries are addressing this problem is through whistleblower reward programs. While such programs vary widely in their specifics, most operate under the same basic framework, offering a whistleblower who discloses material nonpublic information that leads to an enforcement action a monetary reward—typically, a percentage of the fines imposed on the liable parties—as an inducement to come forward.

In the United States, which pioneered this mechanism, whistleblower reward programs have seen broad success. Between 1986 and 2020, whistleblower cases under the False Claims Act (FCA) brought in $46.5 billion in penalties, with whistleblowers receiving $7.8 billion in rewards. And this is only under the FCA—other U.S. whistleblower reward programs have also led to the recovery of significant additional sums. For example, under the whistleblower program created by the Dodd-Frank Act, which was created in 2011, whistleblower tips have contributed to at least $2 billion in financial remedies for violations of the securities laws, with over $720 million awarded to whistleblowers. The success of whistleblower reward programs in the United States has inspired similar programs in several other countries, including South Korea, Canada, Nigeria, Ghana, Hungary, and Kenya. But not all of these programs have been similarly successful. For example, in Ghana, the first country in Africa to introduce a whistleblower reward program, no rewards are known to have been issued—in fact, few have made use of the Ghanaian Whistleblower Act’s provisions at all.

What factors help explain when a whistleblower reward program will work as intended? There is no easy or simple answer—the issue is complex, and the effect of any given program depends in part on details of the program’s design, including the prerequisites for receiving a reward and the scope of the program, as well as the country’s culture around whistleblowing. That said, two factors stand out as key indicators of whether a whistleblower reward program will succeed in encouraging substantial numbers of whistleblowers to come forward:

Continue reading →

Why We Shouldn’t Be Overly Concerned About Corruption in the Reconstruction of Ukraine

Posted on by
Reply

Though the war in Ukraine continues to rage, scholars and policymakers around the world have already begun to look ahead to what it will take to help rebuild the country—a project that the Ukrainian government estimates will cost upwards of $750 billion, and which will likely entail substantial international assistance from a broad coalition of countries. Any project of this magnitude—one that involves large government contracts for construction, supplies, and other services—raises concerns about corruption. Indeed, concerns about the potential for widespread corruption in the reconstruction of Ukraine have already been voiced on this blog and elsewhere (see, for example, here, and here). But while this concern should be taken seriously, it should not be exaggerated. There are at least three reasons why the potential for corruption in the Ukrainian reconstruction process, while real, may not be nearly as severe as some of the current pessimistic commentary suggests:

Continue reading →

Islamic States Agree to Anticorruption Convention

Posted on by
Reply

On 28 Jumada Al-Awwal, 1444h (December 22, 2022), Anticorruption Ministers of the Organization of Islamic Cooperation agreed to assist one another in preventing, detecting, investigating, and prosecuting corruption crimes.

The Makkah Al-Mukarramah Convention commits OIC’s 57 member states to exchange information and share expertise on bribery, embezzlement, trading in influence, and the other corruption offenses listed in the United Nations Convention Against Corruption. Member states foreign ministers are expected to ratify the Convention by March of this year.

The Convention is an important step forward. For two reasons. One, as a practical matter requests from one OIC member to another for assistance in locating fugitives, securing evidence, or recovering stolen assets often run up against obstacles ranging from outmoded procedures to a lack of trust between law enforcement agencies.

This makes it easy for embezzlers, bribe takers and payers, and other scam artists to escape prosecution.  Not only does the Convention require states to eliminate these barriers, but its creation of a General Secretariat and a Conference of State Parties should help smooth working relations among law enforcement personnel as well as provide a forum for resolving disputes.

The greater impact is surely the Convention’s demonstrative effect. Beyond an immediate effect on behavior, law serves an expressive function, creating and validating social norms. The OIC is in its own words “the collective voice of the Muslim world.” For the representative of the believers in one of the world’s great religions to join the fight against corruption validates and reaffirms the importance of the fight. That the English for “Makkah Al-Mukarramah” is “Holy City of Mecca” serves to emphasize this importance to Muslims of all states.

Corruption: Fuel for Femicide’s Fire

Posted on by
Reply

On January 31, 2022, hundreds of protesters took to the streets of La Paz, Bolivia, regarding new revelations about Richard Choque Flores, who had raped upwards of 70 women and committed at least two femicides. (The term “femicide” refers to the intentional murder of women for gender-motivated reasons.) The La Paz protesters were not simply expressing their horror at Choque Flores’ heinous crimes. They were also denouncing the judicial and prosecutorial corruption that had enabled his continued predation. In fact, Choque Flores had already been arrested in 2015 and sentenced to 30 years in prison. His sentence was then reduced to a house arrest in 2019, whereupon he was able to murder two women from the comfort of his own home. How did Richard Choque Flores manage to get his sentence reduced in the first place? With a bribe of US$3,500 and a bottle of whisky.

Sadly, this story is not unique. In Bolivia as well as other Latin American countries (such as Argentina, Brazil, and Mexico), femicides not only occur at appallingly high rates, but they rarely ever get resolved. While femicide is certainly rooted in patriarchy, its rampant scope in Latin America cannot merely be explained by the misogyny of individual perpetrators. In 2021 alone, there were at least 108 known femicide cases in Bolivia, of which only 36% were solved. In Mexico, around 10 women are reportedly murdered per day (though the actual number is likely much higher). The femicide epidemic is by no means “accidental, ‘involuntary,’ or the result of ‘mere institutional incapacity.’” Rather, it is the product of profound and systematic corruption, which allows perpetrators to violate women with impunity, while imposing prohibitive barriers to justice for victims and their families.

Continue reading →

Passing Whistleblower Legislation Is the Next Step in the DRC’s Fight Against Corruption

Posted on by
2

In November of 2021, over 3.5 million documents were leaked from a bank in the Democratic Republic of the Congo (DRC). This so-called “Congo Hold-Up” leak, which included bank statements, emails, contracts, and corporate records, revealed that former Congolese President Joseph Kabila and his inner circle embezzled at least $138 million in public funds between 2013 and 2018. Investigations by media outlets and NGOs exposed a pervasive network of corruption involving the DRC’s Central Bank and national electoral commission, as well as the country’s minerals-for-infrastructure deal with China, a United Nations peacekeeping mission in the Central African Republic, and more. In response, the head of the DRC’s Inspectorate General of Finance (IGF) condemned the bank’s role in facilitating the corruption, and the Congolese Minister of Justice announced the opening of an investigation to address the allegations. 

Complex corruption schemes such as the one described above are often revealed by whistleblowers. The DRC in particular has a history of whistleblowers exposing corruption, often at great personal risk (for example, here and here). Yet instead of being publicly recognized for their contributions and afforded government protection, these whistleblowers are forced to conceal their identities to avoid retaliation by those they exposed. Their fears are well-founded: The DRC offers little to no legal protection for whistleblowers, and many Congolese whistleblowers have been forced into hiding or exile due to threats, intimidation, assault, and even death sentences. This must change. It is high time for the DRC to pass comprehensive whistleblower protection legislation, and there may be an unusual window of opportunity to do so now.

Continue reading →