Category Archives: Guest Commentary

Guest Post: Corruption in Covid-19 Vaccine Distribution–Early Lessons from Brazil

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Today’s guest post is from Guilherme France, a legislative assistant in the Brazilian Senate

The urgency of halting the Covid-19 pandemic, combined with the limited supply of vaccines, has increased the challenges of distributing the vaccine quickly but fairly. As others have pointed out, including on this blog, there are significant risks of corruption in the vaccine distribution process. Brazil provides a troubling illustration of this problem, with instances of corruption or other improprieties related to vaccine distribution having already sparked investigations into mayors and other local officials. For example, there have been complaints that in Manaus, a Covid-19 epicenter, relatives of a local businessman in were fraudulently appointed as employees in health clinics so that they would qualify for early vaccination. And this is but one of several cases where mayors and other local officials allegedly helped their relatives or close associates cut in the line. There have also been reported attempts to pay bribes to nurses for early vaccine access.

There has been similar line-cutting behavior on a grander scale, with various groups, such as prosecutors and judicial authorities, using their political influence and leverage to attempt (without success) to get priority status for receiving the vaccine, ahead of those, like health care workers and the elderly, who need it more urgently. On other occasions, the government acceded to the use of the “priority status” for vaccine distribution as a bargaining chip. In the midst of strike negotiations, it agreed to place truck drivers and other transportation workers ahead of the general population in the vaccination line.

This behavior, while reprehensible, is understandable. Given how hard Brazil has been hit by Covid-19, access to the vaccine is a life and death matter, and the temptation to cut the line, for oneself or a loved one, is just too great. This is why increased control and transparency for vaccine distribution should be a priority for governments at all levels. Continue reading →

Guest Post: Guidelines for Settling Foreign Bribery Cases

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The OECD Antibribery Convention requires parties to impose “effective, proportionate, and dissuasive criminal penalties” on those found guilty of bribing an official of another nation. As GAB readers know, most prosecutions for foreign bribery end not with a trial but with a settlement (here). GAB readers also know that a vigorous debate has ensued on this blog (here and here) and elsewhere (here, here and here) as to whether these settlements have met the “effective, proportionate, and dissuasive” test. In response, and with the assistance of the private bar, the OECD has been developing guidelines to help prosecutors and defense counsel ensure that future settlements do.

 GAB is delighted to welcome this guest post by Peter Solmssen, a leader in this effort from the private bar, in which he describes where the guidelines project stands.  As General Counsel of Siemens AG, Mr. Solmssen negotiated its settlement of foreign bribery cases with, among others, the Federal Republic of German and the United States.  He now chairs the Non-trial Resolutions of Bribery Cases Subcommittee of the International Bar Association (IBA).

Work on international guidelines for the settlement of foreign bribery cases is accelerating. The IBA made its latest submission to the OECD Working Group on Bribery January 22. It there urged the Working Group to move quickly with its anticipated international guidelines on settling transnational bribery cases and to resolve those aspects of settlements that remain contentious. As described here, the IBA has been pushing the OECD to issue guidelines that will encourage prosecutors to cooperate internationally and programmatically to increase the use of settlements, or non-trial resolutions as they are formally referred to internationally.

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Guest Post: Trump’s Pardons and Putin’s Palace Show Why Biden Must Tackle Corruption at Home and Abroad

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Today’s guest post is from Joe Powell, the Deputy Chief Executive Officer for the Open Government Partnership.

The corruption continued to the end. A cast of convicted fraudsters, tax dodgers, and money launderers littered President Trump’s final pardon list. One clemency went to Elliott Broidy, a former top fundraiser for Mr. Trump who had been implicated in illegal lobbying in connection with Malaysia’s multi-billion dollar 1MDB embezzlement scandal. Trump’s final official act as President, taken minutes before the official transfer of power, was to pardon the tax evading ex-husband of one his favorite Fox News hosts, Jeanine Pirro.

None of this was remotely surprising after four years in which ethics, conflict of interest, and the rule of law did not seem to apply to the executive branch of the U.S. government. Contrast this with the extraordinary act of bravery from Russian opposition leader Alexey Navalny, who despite being jailed on his return to Moscow after his near-fatal poisoning, released a viral documentary last week about the construction of President Putin’s palace on the Black Sea. The film, which within days had racked up nearly 100 million views, details the corruption, bribery, and opaque corporate structures used to fund what Navalny claims is the world’s most expensive real estate project, with an estimated price tag of at least $1.4 billion. The funds come from Putin’s oligarch friends who dominate the top positions in many of Russia’s biggest companies, and drain state resources that could improve the lives of ordinary Russians. A single gold toilet brush and toilet paper holder, purchased for one of Putin’s wineries near the palace, cost more than the average annual state pension in Russia. No wonder Putin is so desperate to silence Navalny.

What ties Trump’s pardons and Putin’s palace together is the insidious effect of corruption on democracy. Globally, corruption has been one of the main drivers of 14 years of consecutive decline in civil and political liberties around the world. This democratic recession has affected long-standing and emerging democracies alike, and has spurred street protests and civil society campaigns in many countries. Hungary is a textbook example. Prime Minister Orbán has used state funds for patronage, ensuring that only close supporters receive high value government contracts, and threatening to veto the European Union budget over any checks on his power. Throughout the world, dark money has increasingly fueled online disinformation and a decline in press freedom, which has made accountability harder to achieve.

To turn the tide on this democratic backsliding, a major global effort to combat corruption is needed. President Biden is well placed to help lead the charge. Continue reading →

Guest Post: For Whose Benefit? Reframing Beneficial Ownership Disclosure Around User Needs

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GAB is pleased to publish this post summarizing a recent paper on beneficial ownership disclosure by Anton Moiseienko (Research Fellow) and Tom Keatinge (Director) of the London-based Centre for Financial Crime and Security Studies at the Royal United Services Institute.  In the paper, the authors examine current standards governing disclosure of beneficial ownership data, the challenges of ensuring the data’s accuracy, and the needs and interests of the data’s different users. It will be of particular interest to American policymakers given enactment of the Corporate Transparency Act.

Beneficial ownership disclosure – the collection and sharing of information on genuine (rather than formal or nominee) owners of assets – has become a central issue in the fight against corruption and other financial crimes. To whom to disclose it can be controversial, as the very public spat between the United Kingdom, and several of its Overseas Territories shows. Moreover, even countries committed to full public disclosure face challenges in ensuring implementation meets promise as continuing discussions among EU member states shows.  

Arguments over the extent of disclosure and verification can obscure an equally important issue, ensuring the ownership data meets the needs of domestic and foreign law enforcement agencies, tax authorities, regulated businesses, and the public at large. In our paper, we examine not only to whom the information should be provided and how to guarantee it is accurate but how to be sure what is collected and disclosed serves the interests of different types of users. It is based on a review of publicly available sources and over 40 interviews, including more than 25 with experts based in British Overseas Territories and Crown Dependencies, jurisdictions where the lack of information on beneficial ownership has been a major concern internationally.

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Guest Post: Time for UNCAC Mark II?

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GAB welcomes back international anticorruption consultant Alan Doig, who contributes the following guest post:

The United Nations Convention against Corruption (UNCAC), which came into force in 2005 and has been ratified by 187 countries, is the oldest and most comprehensive Convention solely devoted to the prevention, detection, and investigation of corruption. Yet today UNCAC, for all of its importance, is not serving as an effective blueprint or framework for promoting innovative and effective responses to corruption. There are four main reasons for this:

  • First, perhaps due to UNCAC’s genesis in the UN Convention against Transnational Organized Crime, UNCAC is skewed too heavily toward the criminal justice aspects of anticorruption, as demonstrated by the fact that nearly 80% of UNCAC’s substantive Articles relate to law enforcement, asset recovery, and related issues.
  • Second, UNCAC left too many key terms undefined or underspecified, allowing for significant interpretation (or misinterpretation) of the Articles, and some 40% of UNCAC’s substantive Articles are non-mandatory; these factors tend to undermine the efficacy of the Convention.
  • Third, UNCAC’s review mechanism is too slow and fragmented, and fails to employ a sufficiently holistic framework that assesses performance and progress in implementation and impact.
  • Fourth, and most significant, UNCAC is not amenable to updating. This has meant that issues which were only emerging back in 2005, such as political-party funding or beneficial ownership transparency, only received limited attention. Issues that were once addressed, if at all, through ad hoc references scattered throughout the Convention are assuming more importance. The difficulty of updating the Convention derives in part from the insistence of the UN Office of Drugs and Crime (UNODC) that UNCAC may be used as a legal document suitable for treaty purposes—even though other international instruments serve similar purposes and its value as a treaty has been limited (as demonstrated by, among other things, the fact that UNCAC has been used for mutual legal assistance only 17 times in over a decade).

So, with a reboot of the existing Convention unlikely, maybe it’s time for a new Convention—an UNCAC Mark II. An UNCAC Mark II— which we might perhaps call the UN Convention on the Prevention of Corruption (UNCPC)—could provide a framework that promotes innovative, flexible, and forward-looking means to address corruption challenges, going beyond technical and compliance approaches.

The main focus of the proposed UNCPC, as the name implies, should be on mainstreaming prevention of corruption, both for its own sake and as a means toward wider objectives, such as trust in public institutions, good governance, and the rule of law. Chapters of such a convention could address, for example: risk assessment, developing strategic approaches, promoting public integrity, transparency and accountability, managing the political and partisan dimensions of public life, preventing profiting from corruption, prioritizing citizen-facing public services, and developing measurable progress and performance. In particular, and largely missing from the current Convention, a UNCPC should address the roles and expectations of a wide range of named in-country public and private sector organizations, as well as in civil society, to collectively mainstream the Convention as part of their work.

Such a Convention needn’t start from scratch. Its contents and coherence would come from synthesizing and integrating the wide range of the corruption prevention initiatives, most of which post-date UNCAC. These include, for example, the Kuala Lumpur Statement on Anti-Corruption Strategies, the international standard on anti-bribery management systems (ISO 37001), the Council of Europe’s work on public ethics, the extractive industries and other transparency initiatives, and the work of organizations like the UN Global Compact and the UNCAC Civil Society Coalition. The contents of a new Convention could also draw on the empirical evidence from GRECO reviews and Transparency International National Integrity Studies. Engaging with all these organizations, who have a stake in prevention, will foster a collective sense of ownership, and they can also take a leading role in monitoring and reviewing implementation of the Convention.

In contrast to UNCAC, this proposed new Convention should not seek global membership. Rather, the UNCPC should require both serious substantive commitments and acceptance of a rigorous whole-Convention peer-review system focused on demonstrable performance and progress. At the same time, evidence from practice on the ground will inform an equally rigorous review and revision of the Convention to ensure its relevance. The overall goal is a more comprehensive and dynamic Convention that provides a collective, mutually-supportive approach to anticorruption, one that seeks to achieve meaningful results within realistic timeframes.

Guest Post: Every Bank Robber Needs A Getaway Car; Banker Held Accountable For Money Laundering

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GAB is pleased to publish this analysis by Emile J. M. Van Der Does De Willebois, Coordinator of the World Bank/UNODC Stolen Asset Recovery Initiative, of the significance of a decision of the Gerechtshof Den Haag, the Dutch appeals court in The Hague. As he explains, for too long authorities in the developed world have ignored the role lawyers, bankers, and other “enablers” play in facilitating corruption in the developing world.  Let us hope that the court’s decision marks a turning point in holding them accountable for their role in corruption crimes.  

Last month, a Dutch appeals court ordered the public prosecutor to initiate the criminal prosecution of the former CEO of the nation’s largest bank. The court directed that Ralph Hamers be put on trial for money laundering and other crimes the Amsterdam-based banking giant ING committed during his seven–year tenure as its chief executive. Financial and legal professionals are rarely prosecuted for crimes they facilitate, and it is even rarer that senior executives, as opposed to the institution they run, are targeted. Until this decision, the indictment of Goldman Sachs bankers for their role in the 1MDB scandal was a notable exception.

The culpability of those who, like the driver in a bank robbery, facilitate a crime is not particularly controversial. We all know that the corruption that happens “over there” needs the services of bankers, lawyers, accountants and other facilitators “over here.” We like to pay lip service to the idea that “it takes two to tango” and acknowledge, at least verbally, that the financial and corporate services in the financial centers of the developed world facilitate the corruption found in large parts of the developing world.

But whether those working on anti-corruption always act upon that notion is another matter. A quick look at the Transparency International corruption perceptions index helps maintain the illusion that the rich developed world is doing well on corruption, and that, looking at the bottom of the table, corruption is really a developing-country problem. We have not really internalized the lessons of the Panama Papers, 1MDB, Danske Bank and, most recently, the FinCEN files, which shone a spotlight on the services provided by banks, lawyers and other professionals in making corruption possible.

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Guest Post: Sierra Leone’s Tenuous and Incomplete Anticorruption Campaign

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Felix Marco Conteh, an independent research consultant based in Sierra Leone, contributes the following guest post:

Sierra Leone has a serious corruption problem. And while the importance of fighting corruption unites Sierra Leoneans—who tend to blame corruption for all the country’s socio-economic and political challenges—the citizens of this intensely polarized country remain divided on how to do so. The country seems to have fallen into a pattern in which each new administration pledges to tackle corruption, but adopts strategies that are aimed more at appealing to domestic and international constituencies in the short-term, rather than lay a foundation for longer-term success. The new administrations’ short-term strategies too often involve criminalizing politics in a way that appears to target the political opposition, contributing to deeper polarization and instability. Continue reading →

Guest Post: Why Nigeria’s Main Anticorruption Body Should Not Become a Debt Collection Agency, and How to Stop It

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Today’s guest post is from Pallavi Roy and Mitchell Watkins, respectively Research Director and Research Fellow at the University of London, SOAS Anti-Corruption Evidence Consortium (SOAS-ACE).

Nigeria’s Economic and Financial Crimes Commission (EFCC), established in 2003, was initially effective at investigating and prosecuting bribery, fraud, tax evasion, money laundering, and a host of other financial crimes. Indeed, it was instrumental in prosecuting senior political leaders and corporate actors involved in illegal activities, as well as in recovering significant stolen assets that belonged to the Nigerian state. More recently, however, the Commission has been subject to frequent political interference and corruption. For example, a recent SOAS-ACE study found that private actors—commercial banks, businesses, and high net-worth individuals—routinely exploit the coercive power of the EFCC to help them recover their debts, rather than turning to the courts and other civil dispute resolution mechanisms. This occurs even though, as a matter of law, civil debt collection lies outside the EFCC’s jurisdiction. Continue reading →

Guest Post: The Ukrainian Constitutional Court’s Invalidation of Anticorruption Laws Has Plunged the Country into a Double Crisis

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Today’s guest post is from Kyrylo Korol, a judicial clerk at the High Anti-Corruption Court of Ukraine.

This past fall, between August and October, the Constitutional Court of Ukraine (CCU) ruled that several of Ukraine’s most important anticorruption laws and institutions are unconstitutional.

  • The CCU first ruled unconstitutional the Decree of the President of Ukraine on the appointment of the director of the National Anti-Corruption Bureau of Ukraine (NABU), which is responsible for anticorruption investigations; the Court also invalidated the President’s powers to appoint NABU’s head, a decision that created uncertainty regarding the legitimacy of the current director of NABU. The Court reasoned that the because the power to appoint the NABU director was not included in the list of presidential powers specified in the Constitution, the President could not exercise this power. The CCU also ruled unconstitutional the external commission that evaluates NABU’s performance.
  • In a subsequent case, the CCU declared unconstitutional the powers of the National Agency on Corruption Prevention (NACP) to check the public official’s declarations of assets. The Court reasoned that the NACP’s powers to review asset declarations extended to asset declarations submitted by judges, and that this arrangement would give an executive body impermissible control over the judiciary. The CCU further ruled that the law that imposes criminal liability for knowingly submitting a false asset declarations was unconstitutional, on the grounds that the penalties (which can include fines of up to $1,700, community service, or, imprisonment and disqualification from certain offices) was unconstitutionally disproportionate to the damage caused by the crime. These decisions led to the closure of hundreds of criminal cases for false declaration and the acquittals of public officials who had been found guilty of this crime. Going forward, the elimination of penalties for public officials who fail to file asset declarations, or who file false declarations, essentially nullifies the financial declaration system.

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Guest Post: IMF General Counsel Rhoda Weeks-Brown on the Fund’s Role in Promoting Governance, Transparency and Accountability

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Since 2018 the IMF has laid greater stress on governance and corruption issues in its annual reviews of member countries’ economic performance and when extending loans to stabilize their economies and restore economic growth. GAB is delighted to publish this post by Fund General Counsel Rhoda Weeks-Brown explaining why the organization strengthened its focus on governance and corruption and what it is doing to help member countries promote good governance and combat corruption.

The COVID-19 pandemic is a crisis like no other. It has brought about tragic human loss and suffering, coupled with disruptions in the social and economic order on a scale that we have not seen in living memory. The IMF’s response to help its member countries manage the crisis and save lives and livelihoods has been similarly unprecedented, including in the sheer speed and size of that effort. In only seven months, the institution has provided lending assistance of more than US$100 billion to over 80 countries, including over US$31 billion in emergency financing to 78 countries (as of December 4, 2020). We can all agree that the dire economic effects projected to result from the COVID crisis—including declines in living standards, increases in inequality, and a reversal of the decades-long declining trend in global poverty—have made the fight against corruption more urgent now than ever before.

Despite the speed of the IMF’s response, we have focused on safeguards to ensure that appropriate governance, transparency and accountability measures are in place even for our rapid emergency financing. This financing supports countries’ commitments to level up healthcare spending and provide income support for affected households and businesses. Our advice to countries has been “spend what you need, but keep the receipts.” Governments in turn have made firm commitments to address governance, transparency and accountability.

The IMF is also providing technical assistance to countries to help them make progress on these commitments. This reflects a clear understanding that improvements in transparency and accountability are driven by changes in institutional practices across multiple institutions involved in budgeting, spending, monitoring the use of public financial resources and responding to instances of misappropriation and misbehavior.

Governance—key to economic success

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