Category Archives: Commentary

Why Hasn’t the IACC Meeting Been Postponed Yet?!?!

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As many readers of this blog are likely aware, one of the biggest international anticorruption conferences, aptly named the International Anti-Corruption Conference, scheduled its 2020 meeting for June 2-5 in Seoul, South Korea. It should be patently obvious to anybody that’s been paying attention that this conference absolutely must be postponed in light of the COVID-19 situation. Even if, three months from now, most of the hardest-hit countries have succeeded in “flattening the curve” to some degree, hosting a major international conference–one that will bring together people from all over the world, to meet and interact at close quarters for four days in a country that’s been a COVID-19 hotspot (albeit one that has done a good job getting the outbreak under control) before dispersing back to their countries of origin–is the height of irresponsibility.

So it came to me as a something of a shock that the IACC meeting has not (yet) been postponed. Indeed, just yesterday the IACC sent around an announcement encouraging young journalists to apply for the conference’s Young Journalist Program (offering those selected air travel and accommodations for the Seoul meeting). On the IACC website, the most recent COVID-19 update is from March 11 (over two weeks ago), and says:

We are very mindful of the current situation regarding the Coronavirus (COVID-19) outbreak and we understand that many of you are concerned on how it will affect the 19th International Anti-corruption Conference (IACC) in Seoul, Korea, from 2-5 June.

While our strong wish is to get together in early June for the IACC2020 in Seoul to learn from each other and join forces to be more effective in our efforts to end corruption in the coming years, our priority is the safety of all the participants and our staff.

The IACC team is regularly monitoring the global health situation and is in dialogue with the IACC Council and our partners in Korea. A decision to hold the conference, postpone to a later date or any other decision will be made in coming weeks. In the meantime, we will continue our planning.

We appreciate your understanding and recommend caution when making any financial commitments, like purchasing non-refundable flight tickets, until a final decision is reached. We will be updating you as soon as an informed and collectively [sic] decision is taken.

That’s all fine and good, but I think by now and informed decision to postpone the conference can and should be taken (and at the very least, the IACC shouldn’t be posting announcements encouraging people to apply). Come on guys! If the IOC can finally get its act together and postpone the Tokyo Olympics until 2021, surely the IACC can reach a similar decision without further deliberations. After all, shouldn’t the anticorruption community be at the forefront of emphasizing the importance of prioritizing the public welfare over other concerns?

How Can Ukraine’s High Anti-Corruption Court Succeed?

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Following more than two years of advocacy efforts by Ukrainian civil society and pressure from the international community, Ukraine established a specialized High Anti-Corruption Court (HACC) to try high-level officials accused of serious corruption offenses. The HACC, which was authorized in June 2018 and began operating this past September, is rightly seen as a major victory for Ukrainian anticorruption activists, and the first round of judicial selection for this court (a process that entailed special procedures, including the participation of a foreign expert panel in assessing candidates’ integrity) appears to have gone well. But the HACC faces daunting challenges—it is a brand-new institution, operating in an uncertain but pervasively corrupt environment, tasked with addressing extremely complicated and sensitive cases under intense public scrutiny. Its success is by no means guaranteed.

Some of the factors that will affect the HACC’s performance are external to the court itself. For example, the HACC’s success depends in part on the quality of the work done by Ukraine’s anticorruption investigative and prosecutorial bodies, the National Anti-Corruption Bureau (NABU) and Specialized Anti-Corruption Prosecutor’s Office (SAPO). And given the history in Ukraine of political interference with the courts (despite the constitution’s guarantee of judicial independence), one must always worry about whether the HACC will face similar threats. But even if we put those concerns aside, there are several additional steps that can and should be taken to help ensure that the HACC lives up to its potential. Continue reading →

A Welcome Analysis of Where Mozambique’s Goats Eat

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To say that a successful attack on corruption begins with a political economy analysis is commonplace.  To declare that absent such an analysis of the political, economic, and social conditions that foster a particular type of corruption, an anticorruption policy has little chance of succeeding is hardly remarkable.  What remains noteworthy is in the two decades plus since the global war on corruption began how few such analyses have been done.

Of the more than 7500 entries in Matthew’s corruption studies bibliography, titles of fewer than 50 indicate a political economy focus. The corruption and development “gray literature,” reports on corruption in developing nations commissioned by donor organizations, is little better.  Perhaps a larger number of studies, but few quality ones, and perhaps surprisingly, a real dearth of analyses of petty corruption, the kind that citizens of developing nations, most often the poor, regularly encounter in their daily life.

That’s why it was a pleasure to discover Inge Tvedten and Rachi Picardo’s recent study of where Mozambican goats eat.  The Mozambican expression cabrito come onde está amarado (“goats eat where they are tied up”’) refers, as they explain, to the two-legged species rather than the four-legged one.  The kind that exploit their place in government to enrich themselves, friends, and supporters.  The two draw upon years of accumulated research to show how, in a variety of thickly described situations, “a set of structuring principles and common schemes” lead to the “internalization” or “embodiment” of corruption.  (Others might term the principles and schemes “institutions” and internalization or embodiment a “Nash equilibrium.”) An especially thought-provoking example is how traditional norms of deference to authority figures interacts with the way the District Development Fund, a program to help the poorest, is managed to keep beneficiaries marginalized.

Whether hunting for how to deprive a greedy Mozambican goat of nourishment or for a first-rate example of political economy analysis of petty corruption, readers will profit from perusing Tvedten and Picardo’s article.

The Swiss U-Turn on Asset Return Explained

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Historically, a Swiss bank has been the bank of choice for corrupt leaders wanting to hide money. The reality is quite different today.  Just ask Tunisia’s ousted strong man Ben Ali, deposed Ukrainian president Victor Yanukovich, or the relatives of deceased former Haitian president Jean-Claude Duvalier, of the late Nigerian dictator Sani Abacha, or of Hosni Mubarak, the recently passed Egyptian president.  All believed money stolen from their nations’ citizens was safe in a Swiss bank.

At the time, they were not wrong. Dating back to when its secrecy rules protected the wealth of France’s Catholic kings from the prying eyes of nosey Protestant journalists, Swiss law permitted banks to take money with few questions asked and sanctioned those disclosing information about an account or its holder. Strict bank secrecy laws gave the Swiss financial industry an enormous advantage over other financial centers; it’s one reason why today financial services plays an outsized role in the Swiss economy — accounting for 10 percent of the GDP, twice the average of other OECD nations.

As the Duvaliers, Abachas, and Murabanks of the world learned to their chagrin  however, over the past decade Swiss policy has made a sharp U-turn.  Despite the weight of history and tradition, and the economic interest of so many Swiss citizens, current Swiss policy not only no longer condones the deposit of stolen assets in its banks, it now demands that banks and others in the financial services industry come to the aid of governments searching for money stolen by former rulers and cronies.  No other nation today goes to such lengths to help countries recover stolen assets.

Swiss lawyers François Membrez and Matthieu Hösli document this extraordinary change in Swiss policy in How To Return Stolen Assets: The Swiss policy pathway. Just published by the Geneva Centre for Civil and Political Rights, the two explain how Swiss  asset recovery law has turned Switzerland from the destination of choice for stolen funds into the least hospitable jurisdiction in the world.  The paper is an essential guide to Swiss law on asset recovery and provides a blueprint for other nations wanting nothing to do with stolen assets.

 

An Anticorruption Success Story: India’s Aam Aadmi Party Has Made Delhi Politics Much Cleaner

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In 2011, India witnessed the largest anticorruption uprising in its history, as hundreds of thousands of people mobilized to protest against entrenched corruption and to push for the passage of national anticorruption legislation that had been stuck in parliament for decades. The movement failed to achieve that objective, but out of its ashes was born a new political party, the Aam Aadmi Party (AAP). The AAP, founded in 2013, made anticorruption its main focus, choosing as its symbol a broom to represent its goal of cleaning up Indian government. The AAP achieved its first major victory in 2015, when it won a landslide victory in the state elections in Delhi, India’s capital city. Many inside and outside of India naturally wondered: Would the AAP achieve its goals? Could it effectively govern a city of 19 million people, and succeed in curtailing entrenched corruption? After all, the challenges are enormous, and the international track record of anticorruption parties is rather mixed.

The AAP’s journey wasn’t smooth, and its first few months in office were marked by significant infighting and a general perception of dysfunction. But the AAP managed to turn things around, and in the February 2020 elections, the AAP won handily, gaining a decisive majority for the next five years. The AAP’s success is partly due to its popular policies on things like increasing spending on education and reducing the cost of electricity and water. But the AAP also succeeded in the polls because it followed through on its anticorruption agenda. Although it’s always hard to gauge the success of anticorruption efforts, there are two major pieces of evidence that indicate that the AAP really has taken major steps to clean up politics: 

Continue reading →

The Brazilian Courts’ Indefensible Double Standard: The Disparate Treatment of Harmless Procedural Errors in Corruption and Non-Corruption Cases

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Before Brazil’s so-called Lava Jato (“Car Wash”) Operation, almost every attempt to prosecute high-level corruption in Brazil failed. Many cases were never investigated or prosecuted, but even in those cases where prosecutors started investigations, identified crimes, and brought charges, appeals courts ended up nullifying the proceedings, often before trial, on technical grounds for failure to comply with procedural rules (see, for example, here, here, here, and here). The result was a culture of impunity, in which grand corruption thrived. The Lava Jato Operation has been hailed as a historic breakthrough not only because of the breadth of the corruption it uncovered, but also because the convictions secured by prosecutors had, by and large, been affirmed on appeal. Unfortunately, there are troubling signs that the Brazilian judiciary is reverting to its old ways. Last October, for example, the Brazilian Supreme Court issued a procedural ruling  concerning the sequence of closing arguments that the Court held required the nullification of two Lava Jato convictions (so far), and may end up doing more widespread damage. The larger issue here, though, is the double-standard that Brazilian appellate courts seem to have embraced: adopting an (excessively) stringent and unforgiving view of even minor technical procedural noncompliance in corruption cases involving elite defendants, while at the same time relying (properly) on “harmless error” doctrines to excuse similar sorts of procedural noncompliance in cases involving other sorts of crimes, such as drug trafficking. Continue reading →

Recovering Damages for Mozambican Victims of the Hidden Debt Scandal: Possible Suits in the United Kingdom

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A recent post explained that Mozambicans harmed by the corruption behind the “hidden debt” scandal may well be able to sue the perpetrators for damages in the courts of many nations.  Mozambique, where the harm was suffered, and most probably France, Lebanon, Russia, Switzerland, the United Arab Emirates, and the United Kingdom, countries where one or more of the alleged perpetrators is located or does business.  The legal basis would be article 35 of the United Nations Convention Against Corruption.  It requires convention parties to open their courts to actions by corruption victims against “those responsible” for the corruption “in order to obtain compensation.”

The U.N. Office of Drugs and Crimes reports that all 187 parties accept the principle of compensation for corruption.  Suits for corruption damages are a relatively recent development, however, and in its latest review of the convention’s implementation, UNODC explains that establishing causation and proving damages remain to be elaborated through application of parties’ domestic law principles governing harm caused by intentional acts.  At the same time, it noted that in corruption damage cases article 35 mandates that these principles be interpreted broadly.  There need be no direct interaction between the perpetrators of corruption and the victim; nor is recovery limited to cases where the perpetrators foresaw the injury the victim would suffer.

In a just released paper, London barrister James Mather shows how English law would apply to claims Mozambicans brought for hidden debt damages in the United Kingdom. He opines that recovery could be had on the basis of an unlawful means conspiracy and perhaps too on the tort of bribery and dishonest assistance.  English law, he writes, incorporates the liberal principles of causation of damages enshrined in article 35. “The approach to the award of damages for conspiracy in particular is quite liberal in English law and extends to losses which cannot be strictly proved.”  English law also offers Mozambican claimants a procedural advantage.  Rather than each person having to file a separate suit, a group action could be filed with a single claimant suing on behalf of all those who suffered a similar injury.

Mather, a distinguished member of Serle Court in London, cautions that while based on what has been reported it would appear Mozambicans injured by the hidden debt scandal could recover damages in the United Kingdom, much factual research is required to be sure. His paper is an important step forward in seeing that those who suffered enormous harm thanks to the corruption behind the hidden debt scandal are made whole by the perpetrators.  Click on Mather paper to download a copy of his first-rate analysis.

Are Financial Declaration Systems Creating Opportunities for Corrupt Extortion?

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One of the most popular reform measures for combating public corruption is the establishment or strengthening of requirements that public officials regularly file declarations of assets and income sources. Mandatory financial disclosure rules are not exclusively about fighting corruption, of course, but anticorruption is certainly one of their principal justifications. Requiring public officials to formally submit and update income and asset declarations, and attaching meaningful penalties for false or misleading declarations, is thought to help suppress corruption in at least three ways:

  • First, identifying assets and income sources makes it easier to identify, and hopefully to avoid, conflicts of interest.
  • Second, public officials who report suspicious asset growth during their time in office might attract unwanted scrutiny from law enforcement investigators—and also, if the declarations are public, from journalists and activists. Submitting false reports or finding clever ways to hide assets are of course possible, but are costly and risky.
  • Third, precisely because corrupt public officials will often lie on their financial declarations in order to avoid scrutiny, these mandatory disclosure laws can sometimes provide the hook to hold corrupt officials legally or politically accountable even when it is impossible to prove the underlying corruption. We might not be able to nail the corrupt official for bribe-taking or embezzlement, but if we can show that he owns substantial undeclared assets, we can still nail him for lying on his financial declarations.

There are important ongoing debates about the appropriate design of financial disclosure systems, including questions about whether the disclosures should be public or kept confidential, who should be required to submit disclosures (and how often), what sort of information should be required (and at what level of detail), whether and how declarations should be independently verified, the appropriate institution to manage the system, and the appropriate penalties for noncompliance (see also here). And the efficacy of mandatory financial disclosures in reducing corruption is still unsettled (see here, here, here, here, and here). Nevertheless, the basic anticorruption case for some form of mandatory financial disclosure system seems strong. Both domestic anticorruption activists and the international community therefore regularly push for the creation of such systems where they do not already exist, as well as for the strengthening and expansion of existing systems.

While acknowledging the uncertainties and complexities of the issue, I find the basic case for some form of (strong) mandatory financial declaration system persuasive. That said, I’ve recently had some interesting conversations with a couple of experts who have highlighted a potential problem that I confess I hadn’t previously thought about or seen discussed in the published literature: In countries where corruption is widespread and institutional checks are weak, the government agents who administer the financial disclosure system could abuse their power to extort bribes from the public officials who are subject to the declaration requirements. Continue reading →

Ukraine’s Bold Experiment: The Role of Foreign Experts in Selecting Judges for the New Anticorruption Court

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The fight against corruption has been a central focus for Ukraine since the 2014 Maidan Revolution. In the immediate aftermath of Maidan, the country created four new institutions, the National Anti-Corruption Bureau of Ukraine (NABU) (an investigative body), the Special Anti-Corruption Prosecutor’s Office (SAPO) (with prosecutorial powers), the National Agency for Prevention of Corruption (NAPC) (responsible for administering the e-asset declaration system), and the Asset Recovery and Management Agency (ARMA) (tasked with recovering stolen assets). Yet the problem of impunity for grand corruption has persisted, and many believe that the weak link in the chain has been the Ukrainian judiciary. In addition to familiar problems of delay and inefficiency, Ukrainian judges are widely viewed as susceptible to political influence, and even corrupt themselves. To address this problem, in 2018—thanks to the combined lobbying efforts of Ukraine’s vibrant civil society and pressure from international donors, primarily the International Monetary Fund (IMF)—Ukraine enacted a new law creating a specialized anticorruption court known as the High Anti-Corruption Court (HACC), which began operations this past September.

The most innovative and controversial feature of this new court is the inclusion of foreign experts in the judicial selection process. While many countries have created specialized anticorruption courts, and many of these have special judicial selection systems that differ from the procedures for appointing ordinary judges, the participation of foreign experts in the HACC judicial selection process was unprecedented. Yet both domestic civil society groups and outside actors like the IMF and the Venice Commission (the Council of Europe’s advisory body for legal and constitutional matters) came to see foreign participation in the selection of HACC judges as crucial, particularly in light of the controversial selection process for judges to Ukraine’s Supreme Court in 2017. In the selection to the Supreme Court, multiple candidates were approved by Ukraine’s High Council of Justice (HCJ) despite the fact that those candidates were found to be ethically tainted by the Public Integrity Council (PIC), a civil society watchdog that assists the High Qualification Commission of Judges (HQCJ) in assessing the integrity of judicial candidates. Thus, when lobbying for the HACC, civil society and some members of parliament demanded that the law guarantee the presence of foreign experts with the power to veto judicial candidates, in order to ensure that no judges were appointed to the HACC if there was reasonable doubt about their integrity.

As a short-term stopgap, the involvement of foreign experts in the HACC judge selection is promising and may even serve as a useful model for other institutional reforms within Ukraine, and for other countries. But reliance on foreign experts to address concerns about selecting judges (or other officials) of sufficient integrity is probably not a long-term solution. Continue reading →

High Costs: Corruption Scandals in America’s Legal Marijuana Industry

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The movement to legalize marijuana in the United States has been gaining momentum. Thirty-three states and the District of Columbia have currently legalized marijuana to some degree, and of those, eleven states and D.C. have legalized recreational use of marijuana.  (Selling, possessing, consuming marijuana remains illegal under federal law, but the federal laws against marijuana are rarely enforced, which creates a rather odd situation in the states that have legalized marijuana: those who participate in the marijuana market are still technically engaged in illegal activity, even though that market operates out in the open.) In the absence of uniform federal regulation, those states that have legalized marijuana have adopted different regulatory approaches; most states issue a limited number of licenses to sell or supply marijuana, but have capped the number of licenses in order to limit the amount of marijuana on the market. This makes each license extremely valuable, given that the total value of the marijuana market is estimated to be somewhere in the neighborhood of $52 billion. Additionally, in most states the license evaluation criteria, and the evaluation process, are extremely opaque, and local government officials frequently have substantial discretion regarding who receives these licenses.

Given this combination of factors—state and local officials with the power to issue a small number of extremely valuable licenses through an opaque process—it should come as no surprise that the legal marijuana market has become a hotbed for corruption. Consider just a few examples: Continue reading →