Category Archives: Commentary

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.

Anticorruption in Qatar: Policy or Politics?

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Earlier this year, Qatar’s Minister of Finance, Ali Shareef Al Emadi, was arrested on corruption charges. This news came as a veritable bombshell to those who follow the Arab Gulf region. For one thing, Al Emadi is a prominent figure, who was not only the sitting finance minister, but who had previously occupied an impressive list of leadership positions in well-known Qatari institutions, including a board position on the country’s $300 billion sovereign wealth fund, chairman of the board of Qatar Airways, and chairman of the board of Qatar National Bank, the largest lender in the Middle East. Another surprising thing about Al Emadi’s arrest is just how public—and unusually publicized—the arrest was. This contrasts strikingly with how Qatar and other countries in the region typically deal with suspected corruption of high-level officials. In such cases, the investigation is usually kept private and, if the allegations appear to have substance, they are usually resolved through a resignation. In Al Emadi’s case, by contrast, a state-run news agency made a public announcement of the arrest and investigation, and he was removed from his post. 

It has been over six months since Al Emadi’s arrest, and the situation remains shrouded in mystery. Al Emadi has said nothing, and the only statement from the Qatari government came two days after the arrest. (That statement, by the Minister of Foreign Affairs, consisted mainly of the assertions that “no one is above the law” and the “investigation is ongoing.”) This has left news organizations and researchers to speculate about the unusual circumstances of Al Emadi’s arrest (see here, here, here, and here). One possible interpretation, advanced in a Brookings Institution piece published shortly after the arrest, is that Qatar’s unusual action in the Al Emadi case—publicly announcing the arrest of a high-profile figure in a country (and region) where such officials are virtually never prosecuted for corruption—may signal a real shift in Qatar’s policy, one that may be part of a genuine push for better, more honest governance. A former economist at Qatar’s central bank expressed a similarly optimistic interpretation, asserting that the arrest “sends a powerful message to all Qataris about the government’s newfound eagerness to fight corruption.” 

This is of course possible, but we shouldn’t get our hopes up. Al Emadi’s arrest, and the unusual publicity it received, may have less to do with a real shift in the Qatari government’s approach to fighting corruption, and more to do with political calculations.

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The Weaponization of Anticorruption Law: Why Italy’s Legge Severino Must Be Reformed

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Back in 2012, the Italian legislature passed an anticorruption statute known as the Legge Severino. This law institutes a six year prohibition on holding elected office for politicians with felony convictions carrying sentences over two years. If convicted on an “abuse of power” charge, the prohibition on officeholding is extended to eight years. The law, which was enacted in part to effectuate Article Six of the United Nation’s Convention Against Corruption, was hailed at the time as a positive step on the road to a less corrupt Italy. (Famously, this provision initially barred Silvio Berlusconi from office after he was sentenced to four years in prison for tax evasion.) The logic behind passing laws of this sort (which also exist elsewhere) is fairly clear, especially in a country like Italy which has struggled with endemic political corruption: intuitively, those who have abused the public trust by committing serious criminal offenses should not be allowed to hold elected office.

But a recent case in Calabria, involving Domenico “Mimmo” Lucano, the former mayor of the town of Riace, highlights problems with the law—in particular, how the law can be weaponized to take down politicians who are fighting corruption and organized crime. Continue reading →

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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Learning from the Collapse of CICIG, MACCIH, and CICIES: What Lessons for the Future?

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Six years ago, the world was celebrating one of the most innovative and promising investigative commissions to curb grand corruption: Guatemala’s International Commission Against Impunity in Guatemala (Comisión Internacional Contra la Impunidad en Guatemala, or CICIG). CICIG was a domestic-international hybrid organization that exposed sixty criminal networks, charged nearly 700 people, and took down high-level officials, including Guatemala’s sitting president, vice president, and head of the public prosecutor’s office  (see here, here, here, and here). CICIG was so successful that it inspired two of Guatemala’s neighbors, El Salvador and Honduras, to create commissions on a similar model: MACCIH in Honduras (created in 2016) and CICIES in El Salvador (created in 2019). The key element setting these commissions apart from traditional anticorruption agencies was their hybrid domestic-international setup. In all three cases, the commissioners were supported by an international body (the UN for CICIG and Office of American States (OAS) for MACCIH and CICIES), and the commissions were led by foreigners. The commissions had ambitious mandates, but also limited powers: They could not prosecute on their own, but rather had to work with the national prosecutor’s office. Initially, MACCIH and CICIES scored a few remarkable victories, taking down a handful of government officials. This fueled optimism that these institutions, together with CICIG, would prove to be a powerful and sustainable anticorruption innovation.

Now, several years later, the bloom is off the rose. None of these commissions are still operating. And the story of their demise is remarkably similar: In each country, the commission’s investigations got too close to the incumbent administration, ultimately leading the president to either terminate the commission’s mandate or let it expire (see here, here, and here). This all-too-familiar story highlights a difficult challenge in fighting corruption effectively, one that is not limited to these special hybrid commissions: The main point of creating independent anticorruption bodies is to make possible the investigation and prosecution of the politically powerful—those who might benefit from de facto impunity if investigations were left to the ordinary institutions of justice—but at the same time, these independent commissions are sustainable only as long as the politically powerful would not find it more expedient to shut them down.

It’s difficult to thread this needle, and I’m reluctant to second-guess the leaders of CICIG, MACCIH, and CICIES regarding their strategic choices. Still, the fates of these commissions suggest a few valuable lessons that might be applicable to other anticorruption agencies that find themselves facing a comparable dilemma:

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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?

Why Italy Should Not Prioritize Anticorruption in Spending Covid Recovery Funds

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The Covid-19 pandemic has been an economic disaster as well as a public health disaster, and massive public spending will be needed to promote recovery. In Europe, the EU is projected to spend up to €1.8 trillion on pandemic recovery. One of the biggest recipients of these EU funds will be Italy, the EU’s hardest-hit member state. Currently, Italy is poised to receive €123 billion in loans and €69 billion in grants between now and 2026. Provision of these funds has already started; the first tranche of €25 billion arrived this past June. This funding will support Italy’s Covid recovery plan, known as the Piano Nazionale di Ripresa e Resilienza (PNRR), which—in the name of territorial cohesion—will allocate 40% of the funds to the Italian south.

If history is any guide, a massive amount of that money will be misallocated, misspent, or outright stolen by corrupt public officials colluding with organized crime groups. The mafias have a long history of bribing Italian officials for lucrative public contracts. Between 2014 and 2020, Italy received €77 billion from the EU for use in structural and investment funds; 60% of those funds were “fraudulently requested or obtained,” often by organized crime, with the 85% of that fraud occurring in the South. Much of the fraud occurs when illegitimate companies request funds in the form of loans and grants; the companies either don’t exist or are liquidated upon receipt of the funds.  

But we needn’t look only to history: Italy’s three most powerful crime syndicates—Cosa Nostra in Sicily, the Camorra in Campania, and the ‘Ndrangheta in Calabria—are already bribing Covid response officials, winning fraudulent contracts, and plundering businesses in receipt of PNRR funds. As the EU money pours in, we can expect that these mafia groups will use their corrupt networks to siphon off a staggering percentage of the EU Covid relief funding.

What should European policymakers do in response? It’s tempting to insist—as anticorruption activists have in this and other contexts—that the EU and Prime Minister Mario Draghi’s government adopt enhanced oversight and transparency measures, to better ensure that funds are spent appropriately. But that would be a mistake. Right now, the priority must be on promoting a swift economic recovery. Attaching burdensome anticorruption requirements to the public spending needed to support that recovery will slow the process down too much. This is, I realize, a bitter pill to swallow. Many readers will instinctively resist the idea that the EU and the Italian government might bankroll Italy’s most powerful mafias (to the tune of up to €200 billion). But if Italy is to recover from the economic effects of the Covid-19 pandemic, the priority must be the swift delivery of recovery funds, even if this means that much of the money will be intercepted by the mafia.

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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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Brazil Should Rethink the Corporate Death Penalty for Corrupt Acts

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Brazil’s Clean Company Act (CCA), enacted during a time of mass protests against corruption and impunity, was a major step forward in the fight against corporate crime. While the CCA is best known for its imposition of strict civil and administrative liability on legal entities that commit corrupt acts against public administration, the CCA is also notable for its authorization, in extreme cases, of a “corporate death penalty.” More specifically, the CCA requires the dissolution of a corporation or other legal entity when (1) the legal entity is in fact a “shell company” used to conceal illegal acts (such as money laundering, tax evasion, or procurement fraud), or (2) the legal entity was used on a regular basis to facilitate or promote the performance of wrongful acts. Applying the corporate death penalty to shell companies created for the purpose of facilitating or concealing criminal acts is straightforward and not terribly controversial, especially since these shell companies do not engage in any genuine productive activity. The controversy arises with respect to the second category, which can include productive companies.

Applying the extreme sanction of corporate dissolution might seem like appropriately strong medicine for companies, even productive companies, that have been involved in serious and ongoing illegality. In practice, however, this sanction is not working as intended. A much more effective and realistic sanction, at least in the Brazilian context, would be to compel a persistently corrupt (but productive) company’s shareholders to sell their controlling stake in the company—thus preserving the company as a going concern, but placing it under new ownership and management.

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