The Legacy of Guatemala’s Commission Against Impunity

The most innovative experiment in the fight against corruption in memory ended last week with the closing down of Guatemala’s impunity commission.  Known as CICIG after its Spanish initials, the commission enjoyed tremendous success over its ten plus year life, securing the conviction of dozens of senior military and political leaders, forcing a sitting president and vice president to resign over corruption charges, and most importantly, showing Guatemalans their leaders were not beyond the law’s reach. The commission ceased operating Wednesday after outgoing President Jimmy Morales, whom the commission was investigating for campaign finance violations, refused to renew its mandate.

Although Guatemala’s corrupt elite finally succeeded in killing the commission, the innovation behind the commission’s success is very much alive.  Prompted by CICIG’s success, neighboring Honduras created its own CICIG-like commission, and last Friday, less than 48 hours after CICIG shut down, El Salvador’s newly-elected president established a Salvadorian version of CICIG.  Across the Atlantic, independent of developments in Central America, Ukraine is pioneering a similar ground-breaking approach to fighting corruption which Moldovans are considering copying.

What all four countries have in common is a corrupt ruling class able to stymie the enforcement of the anticorruption laws. CICIG’s creators were the first to recognize that outside pressure alone was never going to change this dynamic.  No matter how much diplomatic and economic pressure the international community brought to bear, Guatemalan investigators, prosecutors, and judges were never going to tame grand corruption by themselves.  Some were themselves corrupt or corruptible; others were honest but unwilling to cross corrupt friends and relatives, and still others feared for their life or the lives of their families if they opened a case.   The CICIG solution? Continue reading

Making Political Parties Liable for Corruption

When corrupt politicians are caught and convicted, they may suffer a variety of penalties, including fines and incarceration, and the government might also seize assets that were the proceeds of the wrongdoing. But punishing the individual politicians is not enough to deter wrongdoing or to compensate for the harm that the corruption causes. Moreover, even when an individual politician was the only actor who deliberately and intentionally engaged in corrupt criminal activity, that individual politician is not the only one at fault. Politicians’ decisions are affected by norms within a political party— for example, by expectations (sometimes unstated) that politicians will bring in a certain amount of money for campaign funds through graft.

For these reasons, political parties— in addition to the individual politicians— should be held liable for corrupt acts committed by their members in the course of their political activities or official duties. And such liability should attach even if the political parties’ leaders did not specifically know about or overtly endorse the corrupt acts in question.

This may seem like a radical suggestion, but in fact there are many contexts in which the law imposes so-called “vicarious liability” on organizations for acts committed by the organization’s members or agents. For example, the legal doctrine of respondeat superior (Latin for “let the master answer”) says that an employer (or other principal) can be held accountable for the wrongful actions of an employee (or agent), if the wrongful actions were within the normal “scope of employment.” Common examples include suing a hospital for the malpractice of one of its physicians or holding the government financially liable for wrongful conduct by law enforcement officers. (Although respondeat superior derives from English common law, other legal systems, such as those of Brazil and France have broadly similar concepts of vicarious liability.) Similarly, under the law of many jurisdictions, a corporation may be held liable (not only civilly, but also criminally) for acts committed by corporate employees—even if corporate management did not condone or even know about the criminal acts. These vicarious liability doctrines are important because a single employee frequently does not have the resources to redress the wrongs committed, and also because the employer often bears some responsibility for whatever the employee did, due to company culture, training, and incentive schemes. Because of this, economists point out that vicarious liability can be more socially efficient: The organization may be in a better position to detect and prevent wrongful conduct, so placing the liability on the organization can give it the appropriate incentives to take cost-justified measures to prevent the wrongful activity from occurring in the first place.

Although vicarious liability is a well-established legal principle, often used to hold employers responsible for the conduct of their employees, that concept has not yet been extended to hold political parties, as organizations, legally responsible for the corrupt acts of their members. Such an extension may seem radical, and in a sense it is, but it would be justified.

To make this case, I’ll apply the three-pronged standard that Black’s Law Dictionary lays out for respondeat superior liability to be appropriate in the employment context: (1) The individual was an employee when the occurred; (2) The employee was acting within the scope of his or her employment; and (3) The activities of the employee were a benefit to the employer. Continue reading

Fighting Police Corruption in Nigeria: An Agenda for Comprehensive Reform

Nigeria has a serious problem with police corruption, at all levels. At the top, senior police officials embezzle staggering sums of public funds. To take just one example, in 2012, the former Inspector General of Police, Sunday Ehindero, faced trial for embezzling 16 million Naira (approximately US$44,422). Meanwhile, at the lower levels, rank-and-file police officers regularly extort money from the public, and crime victims must pay bribes before the police will handle their cases. As a 102-page report by Human Rights Watch documented, police extortion is so institutionalized that Nigerians are more likely to encounter police demanding bribes than enforcing the law. No wonder Nigeria’s police force was ranked as the worst of those included in the 2016 World Internal Security and Police Index, and that Transparency International’s Global Corruption Barometer survey found that a staggering 69% of Nigerian citizens think that most or all police officers are corrupt.

To combat such a deep-rooted and systemic problem, bold and comprehensive reforms are needed. What would an effective reform agenda look like? Here is an outline of the most important reforms that are needed, drawing on international best practices but also tailored to Nigeria’s particular circumstances: Continue reading

Legal Remedies for Grand Corruption

In too many nations, ruling elites rob the populace on a grand scale, awarding friends and relatives lucrative government contracts, siphoning off revenues from oil and other natural resources, even writing checks to themselves on the central bank.  Curbing such “grand corruption” will require much: an active, informed citizenry; coordinated international action; vigorous diplomacy; shrewd application of international sanctions.

new volume from the Open Society Justice Initiative, pictured below, describes how civil society can mobilize courts of law in the struggle.  It recounts efforts that range from using international tribunals to force government to address corruption, as the Nigerian NGO SERAP’s case before the court of Justice of the Economic Community of West African States illustrates, to bringing suit against a kleptocratic ruler in a foreign jurisdiction, as Sherpa and TI-France did against Equatorial Guinean Vice President Teodoro Obiang, to the creative use of domestic law doctrines common to most legal systems to force wrongdoers to answer for their crimes in their own courts.

Grand corruption is behind many of the globe’s most pressing problems: massive environmental degradation, gross human rights abuses, large-scale emigration. Taming it must be a priority for the global community.  Legal Remedies for Grand Corruption offers an important set of tools for doing so.

Legal Remedies for Grand Corruption

“Passive Bribery”: Not a Trivial Abuse of Language At All

Yesterday Matthew wrote that using “passive bribery” to describe a public official’s acceptance of a bribe was an abuse of language.  His complaint: “passive” suggests a bribe taker is less culpable than a bribe payer: “’Passive bribery,’” he explained, “sounds less bad, and less serious, than ‘active bribery,’ even though most people would view the two parties to the bribe transaction as equally culpable.”

Calling bribe-taking “passive” is indeed an abuse of language. But it is not, as Matthew’s headline reads, “An Almost Entirely Trivial Complaint.” Nor is the abuse “No big deal” as he writes in the post.  To see why, consider two different “passive bribery” scenarios. Continue reading

An Almost Entirely Trivial Complaint About Terminology: Can We Please Retire the Term “Passive Bribery”?

Alright, alright, I know there’s so much important and serious going on in the anticorruption world, and the world in general, that I have to apologize right up front for the topic of this post, which is has virtually no importance to anything substantive. But I’ll post about it anyway, partly because it’s been bugging me, partly because right now I’m too burnt out to take up anything more weighty. Here’s today’s trivial terminological complaint:

The term “passive bribery.”

I don’t know when or how this happened, but in large segments of the anticorruption community, it’s become standard to refer to the act of requesting, demanding, or taking a bribe as “passive bribery”—which is contrasted with “active bribery,” defined as the act of promising, offering, or giving a bribe. This terminology has become so standard that it appears repeatedly in glossaries prepared by international organizations (see, for example, here and here) and leading anticorruption NGOs (see, for example, here and here), though to the best of my knowledge these terms aren’t actually used in any legal codes, nor in the UN Convention Against Corruption.

The problem is that describing the act of taking (or demanding) a bribe as “passive bribery” is both an abuse of language and potentially confusing or misleading. Continue reading

Leveraging Blockchain to Combat Procurement Corruption

Procurement corruption–including things like bid rigging, shadow vendors, and the steering of public contracts to politically connected firms—is an enormous worldwide problem, costing taxpayers up to $2 trillion annually. New technologies, though certainly no panacea, may offer new techniques for combating this sort of corruption. One such technology is blockchain.

Blockchain, most famous as the foundational technology for cryptocurrencies such as Bitcoin, is a “distributed ledger technology” (DLT)—a tamper-proof record of activities that are time-stamped and verified by a distributed network of computers. DLT creates a trail of information which allows for the full traceability of every transaction and stores a chronological list of transactions in an encrypted ledger. Transactions are bundled into a secure and identifiable block and then added to a corresponding chain. The blockchain is maintained and verified by the distributed crowd, eliminating the need for hierarchy and any centralized authority or middleman. And while blockchain is best known for its role in making cryptocurrencies feasible, it also has a range of other applications, including anticorruption applications. For example, Tanzania has utilized the technology to weed out “ghost workers” from the public sector, ending the monthly outflow of 430 billion Tanzanian shillings (approximately US$195.4 million) in salaries to fake employees who exist only on paper. Nigeria’s customs service has also used blockchain technology to store information on financial transactions and share these transactions across multiple computer networks.

Blockchain technology could also be used to combat common forms of procurement corruption, particularly those that involve after-the-fact tampering with submitted bids and supporting documentation. Such a system would work as follows: Continue reading

Corruption Is Not (Mainly) an Assurance Problem

The study of corruption these days is often heavily empirical, involving the close analysis of case studies or quantitative data. But sometimes it’s helpful to take a step back and think about the nature of the corruption phenomenon in more abstract, theoretical terms—not because this sort of abstract thinking translates neatly and directly into specific policy recommendations (it usually doesn’t), but rather because it helps us organize the otherwise overwhelming mass of particular information in a way that facilitates thinking, in broad strategic terms, about the kind of problem we’re dealing with and what kinds of interventions might be most promising.

It’s in that spirit that a range of contributions have suggested that our conventional ways of thinking about and responding to corruption are flawed, or at least incomplete, because they fail to recognize the extent to which the problem of corruption is a manifestation of the bad equilibrium in what game theorists would call an “assurance game.” The basic idea behind an assurance game is often traced back to Rousseau’s parable of the “Stag Hunt,” in which two hunters are chasing a stag when a hare runs by; if both hunters continue to pursue the stag, they’ll catch it and both will be better off (half a stag is better than a whole hare), but if one hunter chases after the hare, that hunter will get something while the other ends up with nothing. The key feature of this game is that it captures a setting where there are two stable outcomes (“equilibria”)—either both hunters hunt the stag or both chase the hare—and one of those (the stag) is clearly better for both of them. If both hunters go after the stag, and expect the other to do so as well, neither has an incentive to get distracted chasing the hare. But if both hunters expect the other to go after the hare, then both hunters will go after the hare themselves, because hunting the stage alone (in this parable) guarantees one will go hungry, while chasing the hare at least yields something. In that sense, the assurance game differs from the more famous “Prisoners’ Dilemma” game (and from other so-called “free rider” problems), because in the latter class of games each player has an incentive to take the “anti-social” action regardless of what everyone else is expected to do, even though everyone would be better off if they all cooperated.

What does this all have to do with corruption? Well, a number of scholars have advanced quite explicit arguments that the corruption is basically the equivalent of the hare-chasing equilibrium in the Stag Hunt: Everyone does it because everyone expects everyone else to do it, but if everyone could be assured that everyone else would act honestly, nobody would have an incentive to behave corruptly. The earliest scholarly paper of which I’m aware that argued that corruption is more like an assurance game than a prisoners’ dilemma is Professor Philip Nichols’ 2004 article, but the idea has been developed further by other scholars. For example, Professors Persson, Rothstein, and Teorell interpret the results of interviews in Kenya and Uganda as suggesting that corruption in those societies is more like an assurance game than a principal-agent problem, and in a 2019 follow-up paper these scholars argue more generally that systematic corruption “resemble[s] an assurance game…. Within this collective-action framework, unlike the single-equilibrium ‘prisoners dilemma,’ … what action is taken by any individual depends on expectations regarding how others will act.” And Professor Avinash Dixit, though more agnostic as to whether systemic corruption more closely resembles a prisoners’ dilemma or an assurance game, suggests that the latter is an important possibility. And for these and like-minded scholars, seeing corruption in these terms has important implications for how we might fight it. Professors Nichols and Dixit, for example, each independently argue for (somewhat different forms of) certification systems, which, in the assurance game context, can induce a shift from the “bad” (corrupt) equilibrium to the “good” (honest) equilibrium even without material sanctions. Professors Persson, Rothstein, and Teorell are somewhat less specific in the policy proposals that flow from seeing corruption as primarily an assurance problem, but they argue that understanding the problem in this way implies that “rather than ‘fixing the incentives,’ the important thing will be to change actors’ believes about what ‘all’ other actors are likely to do,” and that this in turn requires “a more revolutionary type of change,” though they acknowledge that we still don’t have a clear sense of what can induce successful “equilibrium shifts” of this type.

I want to push back (gently but firmly) against the notion that it’s helpful to think of corruption as (primarily) an assurance problem. But before I pursue my critique of this idea, let me start out by acknowledging that the scholars who have framed corruption as an assurance problem are almost certainly correct in highlighting that corruption is one of those social phenomena for which pervasiveness correlates with attractiveness. In other words, the more people who (are expected to) engage in corruption, the more people who (have an incentive to) engage in corruption. That insight is hardly unique to corruption, but it is certainly important in the corruption context, and may have a range of significant implications for anticorruption policy. My beef with the “corruption is an assurance problem” is not with that key insight, but with what seems to me to be a substantial exaggeration of the importance of that factor relative to other factors. Continue reading

Preserving Electoral Integrity Without Disenfranchising the Poor: Suggestions for Improving a Voter Residence Verification System in Colombia

Vote-buying—a particularly corrosive form of political corruption—is present in many jurisdictions, especially in the Global South. And not only is vote-buying itself a form of corruption, but the practice exacerbates other forms of corruption, because politicians need to raise enough money to buy enough votes to beat their opponents (who are also engaged in vote-buying), and in order to raise enough money, politicians often enter into deals with private parties who (illegally) “lend” the politician the money he or she needs to buy enough votes to win the election, and then, once in office, the politician pays back the private parties—either directly, with embezzled funds, or with inflated government contracts (see, for example, here and here).

But sometimes a candidate might worry that she won’t be able to buy enough votes from voters who actually live in the district where the candidate is running. This is especially true when competing candidates are trying to buy votes. In a competitive district, a relatively small number of votes can swing the election, so politicians have an incentive to scrounge for extra votes. This, understandably, also drives up the “price” for votes in the district. In Colombia, one way that politicians have developed to increase the pool of voters they can “buy,” and hence keep the price down, is to pay voters to illegally register in a district other than the district where they actually live. (In Colombia, as in many countries, adult citizens may only register to vote in the district where they actually reside.) So, the politician pays these voters twice—first to illegally register in another district, and then to vote in that district for the politician—and on both registration day and election day the politician will arrange for the transportation of these non-resident voters to the district where the politician is running. This practice, known as electoral transhumance, is illegal, yet there have long been concerns that it is pervasive in many parts of the country.

In October 2015, Colombia introduced a new tool to fight this sort of electoral fraud. Using so-called “big data analytics,” the authorities were able to cross-reference the National Electoral Registry databases with the System for the Identification of Potential Beneficiaries of Social Programs (known as SISBEN), and as a result of these checks, nearly 1.6 million voter registrations to vote were declared void—a large number in a country with 33 million registered voters. That seems like a big win, and a nice example of how new technologies can help crack down on pervasive corruption (here, electoral corruption). But a closer look reveals that the picture is not as rosy as it first appears: Despite its good intentions, and some positive results, this purge of the voter rolls ended up disproportionately disenfranchising low-income voters. Continue reading

The Importance of Public Relations in the Fight against Corruption

It’s long been recognized that public relations (PR) is a crucial tool in the fight against corruption. (For a recent exposition of that argument on this blog, see here.) This recognition is codified in the United Nations Convention Against Corruption (UNCAC), Article 13 of which requires state parties to “[u]ndertak[e] public information activities that contribute to non-tolerance of corruption, as well as public education programs,” and Article 6 of which calls on state parties to “increase[e] and disseminat[e] knowledge about the prevention of corruption.” Governments fulfill their UNCAC obligations in a variety of ways, and examples of anticorruption public awareness campaigns are as diverse as they are numerous. A famous example of how PR can be used effectively comes from Hong Kong’s Independent Commission Against Corruption, which spends millions of dollars annually on thousands of workshops to educate public employees and private citizens about the effects of corruption and how to combat it. New York City has likewise deployed large-scale educational programming with similar success. In addition to government-run campaigns such as these, multilateral organizations such as the UN Office on Drugs and Crime (UNODC) and NGOs like Transparency International also regularly engage in efforts to raise public awareness around corruption issues (see here, here, here, and here). These campaigns deploy tools as varied as video, music, and drawing to convey their anticorruption messages.

Critics sometimes contend that these PR campaigns consume scarce anticorruption resources that would be better devoted to investigation or enforcement efforts. This criticism is misguided and shortsighted. Of course a badly-designed PR effort can waste resources. Yet effective anticorruption PR helps accomplish several goals that other, “harder” anticorruption measures are incapable or ineffective at achieving on their own:

Continue reading