Category Archives: Guest Commentary

Guest Post: The U4 Proxy Challenge and the Search for New Corruption Indicators

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Osmund Grøholt, a research assistant at the Chr. Michelsen Institute and the U4 Anti-Corruption Resource Centre, contributes the following guest post:

One of the major challenges that the development community faces in promoting effective anticorruption reform efforts is the difficulty of measuring progress. This challenge has become all the more pressing in light of the explicit inclusion of anticorruption targets as part of the Sustainable Development Goals. Unfortunately, many of the most widely-used national-level corruption perception indexes, such as the Transparency International Corruption Perceptions Index and the Worldwide Governance Indicators control-of-corruption index, are not suitable proxies for measuring anticorruption reform effectiveness.

To help address this challenge, the U4 Anti-Corruption Resource Centre is announcing its second “Proxy Challenge Competition.” The Proxy Challenge Competition invites researchers and practitioners to submit proposals for indicators that can help show the direction of change and the progress of reform efforts, rather than measuring the quantity or volume of corruption per se. Ideally, the proxy indicators should be reliable, intuitive, accessible, and cost-effective.

The proposed proxies will be evaluated by a panel of experienced anticorruption practitioners and academics, and the individuals who submit the two best submissions will be invited to present their proposed proxies at a special session at the International Anti-Corruption Conference in Panama (Dec. 1st-4th, 2016), with travel, hotel, and conference registration expenses covered. In addition, the UK’s Department for International Development (DFID) will work with the proposal authors to test the relevance and the validity of the proposed indicators, including financial support for a policy paper on the proposed proxy indicators and, if appropriate, developing a plan for testing the proxy indicator for actual reporting in selected countries.

Proposals of no more than 700 words should be submitted to proxychallenge@u4.no by September 1st, 2016. The submissions should:

  • Clearly define the proposed proxy indicator, and explain why and how this indicator reflects changes in corrupt behavior;
  • Explain how the indicator can be combined with other indicators to obtain a better measurement of overall anticorruption progress, including how the proxy indicator would be useful for different agents (e.g., aid agencies, governments, civil society) for purposes of monitoring and reporting;
  • Comment on the strengths and weaknesses of the proxy indicator, including how they differ with shifting national contexts.
  • Present ideas for how to test the validity of the proxy indicator.

More information on the Proxy Challenge Competition, including a complete list of requirements, can be found here. Additional background reading, including material from the first Proxy Challenge Competition (held in 2013-2014) can be found here and here.

We look forward to your submissions!

Guest Post: What the McDonnell Ruling Means for Future Corruption Prosecutions

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Ziran Zhang, an associate at Burnham & Gorokhov, PLLC, a Washington D.C. law firm, contributes the following guest post:

The Supreme Court’s decision last month in United States v. McDonnell has raised questions about the continued vitality of public corruption prosecutions in the United States. Some observers, including Professor Stephenson, pointed out that the decision itself was cast in narrow terms, and may not make a big difference to most public corruption cases.  I respectfully disagree: McDonnell created an important substantive rule of law that will have a lasting impact, and this impact is apparent when one applies McDonnell’s holding to another high-profile public corruption case—the prosecution of former New Jersey Senator Robert Menendez.

To prove a bribery offense, the government must show (among other things) that the public official promised an official act, defined further as a “decision or action” on a “question or matter” (or cause, proceeding, or suit). A “question or matter,” the McDonnell opinion holds, must be a “formal exercise of government power” that is “specific” and “concrete.” As for a “decision” or “action,” it can be direct (such as when an official issues an order or makes a decision) or indirect (such as when an official “exerts pressure” or “gives advice” to another official.) McDonnell left substantial uncertainty over what counts as “exerting pressure” or “giving advice.”  As Professor Stephenson’s post points out, pressure is inherent from any kind of contact between a subordinate and an official in high office, but in McDonnell the Supreme Court quite clearly rejected that view, indicating that something more is required.

So, how does the McDonnell holding affect the prosecution of Senator Menendez? The facts of the Menendez prosecution are remarkably similar to those of the McDonnell case. According to the indictment, Senator Menendez had a longstanding friendship with Dr. Salomon Melgen. Melgen gave Menendez gifts, such as free flights, luxury hotel stays, and money to various political campaigns benefiting Menendez; Menendez returned the favors in various ways: Continue reading →

Guest Post: Beneficial Ownership Secrecy–Not All Offshore Financial Centers Are Part of the Problem, and Public Registries Are Not the Solution

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Geoff Cook, Chief Executive Officer of Jersey Finance, contributes the following guest post:

The so-called “Panama Papers”—the documents leaked from the Mossack Fonseca law firm by an anonymous whistleblower—have highlighted how certain corporate service providers (CSPs) are able to set up, in offshore international financial centers (IFCs), shell companies for their clients, with bank accounts and other assets then owned by the shell company, so that the identity of the ultimate beneficial owner is hidden. That secrecy enables corruption, tax evasion, money laundering, and other nefarious activity.

While the Panama Papers revelations may have done some good in calling more attention to abuses of the legal and financial system – abuses that can and should be fought – much of the prevailing discussion in the wake of the Panama Papers revelations – much of it driven by moral outrage and salacious headlines about dubious deals – has produced two significant analytical errors, one concerning the diagnosis of the problem, and the other concerning the appropriate prescription. Continue reading →

Guest Post: How Tendering Practices By Anticorruption Research Funders Undermine Research Quality and Credibility

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Cheyanne Scharbatke-Church and Diana Chigas, of the Fletcher School of Law & Diplomacy at Tufts University, contribute the following guest post:

Early last week, the Transparency International (TI) Secretariat in Berlin circulated an Invitation to Tender with a title that grabbed our attention. Framed as part of a commitment to “the highest standards of accountability, organizational effectiveness and learning,” this tender described a “Research Review and Evaluation of Anti-Corruption Work Assumptions: Grievance as a key determinant of people’s anti-corruption behavior.” The email that accompanied the tender suggested an exciting and needed inquiry into assumptions that drive anticorruption programs funded by the international community—on a topic that is closely related to some of our research team’s work on corruption in fragile states  (see here and here). That TI was interested in funding a project of this sort was encouraging: Testing core assumptions, after all, is central to learning and should be a fundamental element of effective programming. We were also heartened by the fact that TI sought comparative analysis, and would give preference to counterfactual analysis over experimental designs—suggesting an interest in the type of qualitative inquiry that is necessary to penetrate the dynamics of corruption as a complex system.

Our initial enthusiasm turned to dismay, however, by the time we finished reading the Tender. The reason may seem prosaic, even banal: The time-frame for submitting proposals and for the work itself. To our knowledge the Tender was circulated the first week of July, applications are due August 5th, work is to start August 29th and be finished by October 31—with a budget for 30-35 working days. At first, that may not seem like such a big deal—and we recognize that it might seem like we are merely griping about our team’s inability to meet the application and project deadlines for this tender. But this is not about any one tender or any one research team. Rather, the practices embodied in—but by no means limited to—this particular tender are in fact representative of larger problems in the world of anticorruption and development evaluation research, one that we suspect may be familiar to other researchers. In particular, two problems in particular stand out. Continue reading →

Guest Post: U.S. Constitutional Principles Do Not Preclude Burden-Shifting or Illicit Enrichment Offenses

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Peter Leasure, Ph.D. candidate in criminology and criminal justice at the University of South Carolina, contributes the following guest post:

It is well known that corrupt kleptocrats often transfer enormous sums of money from their countries. As a result, there has been a growing emphasis on attempts to freeze, seize, and return stolen assets to their jurisdiction of origin. However, countries vary in the legal mechanisms they have to achieve these objectives. One common fixture of many of these legal mechanisms is the requirement that the assets (or the capital used to acquire them) be traced to a predicate offense. However, meeting this requirement can sometimes be difficult, which hinders asset recovery proceedings.

To address this problem, some jurisdictions, such as France, have adopted a burden-shifting approach. Under the relevant provisions of the French Criminal Code, officials have the burden to account for the lavish assets they have acquired once claims of corruption arise. A similar sort of burden-shifting takes place under so-called “illicit enrichment” or “unexplained wealth” statutes. Under such statutes, a government official can be criminally liable if the official has substantial assets that he or she cannot adequately explain. In other words, once the government proves that the corrupt official has assets grossly disproportionate to his or her official salary, the burden shifts to the defendant to prove that the assets have a legitimate origin. Many countries have adopted statutes of this sort. Moreover, some international anticorruption conventions, such as the Inter-American Convention Against Corruption (IACAC), expressly call for the adoption and enforcement of such laws.

The U.S. takes a different approach. The U.S. made this clear in filing a reservation to the IACAC’s illicit enrichment section (Article IX), in which it stated that the offense of illicit enrichment set forth in the convention “places the burden of proof on the defendant, which is inconsistent with the United States constitution and fundamental principles of the United States legal system.”

But is it always the case that the government bears the burden of proof in the U.S.? In fact, it is not. There are numerous examples of areas from U.S. criminal law where burdens are shifted from the government to the defendant. Continue reading →

Corruption in Health Aid: Escaping the Scandal Cycle

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William Savedoff, Amanda Glassman and Janeen Madan of the Center for Global Development, a Washington-based development policy think tank, originally wrote this post for CGD.  It is reprinted here with permission.

Health aid pays for life-saving medicines, products, and services in the poorest countries in the world. Funding for such uses needs to be smooth and uninterrupted. But when fraud is detected, funds are subject to sudden stops and starts—the result of a sequence of events set off by the scandal cycle in health aid depicted below. We examine this idea and offer ways to escape the cycle in a new CGD policy paper we summarize here.

The Scandal Cycle

 

To understand the scandal cycle, we looked at four cases of fraud and response involving the World Bank in India, USAID in Afghanistan, the Global Fund in Mali, Djibouti and Mauritania, and European donors in Zambia. While corruption is discovered in different ways, scandals tend to erupt when the press publicizes it or a funder reacts strongly. Once allegations are in the public eye, funders typically react by suspending aid. Then, they work with recipients to create action plans for improving financial management systems, and eventually resume funding.

This scandal cycle is, unfortunately, all too common. In May, the Global Fund published an investigation that tracked down $3.8 million in fraudulent expenditures at Nigeria’s Department of Health Planning, Research & Statistics. The Fund’s executive director issued a statement reaffirming the Fund’s “zero tolerance of corruption” policy, underscoring that the Fund had frozen disbursements to several Nigerian agencies, and calling for reforms to government control measures.

As with the cases we analyzed in our paper, the focus on fraud often comes at the expense of considering the scale of corruption and the impact of disruption on health programs. While $3.8 million is no small number, it represents less than one percent of the $889 million in grants to Nigeria that the Global Fund audited in a companion report on the Wamboo.org project. Furthermore, the impact of international support on improving health has been rather large; the Global Fund’s own statement indicates that international support has helped Nigeria reduce deaths from malaria by 62 percent since 2000.

Halting disbursements to health programs can have serious consequences for service delivery, health outcomes, and institutional development. In light of the scale of fraud and the potential health impact, is suspending aid an effective response? And without information on health impact, how would we know?

We argue that funders may be able to escape the scandal cycle—and reduce such disruptions—by paying greater attention to information on program achievements. Currently, funders pay a lot of attention to procedural issues. For example, a 2013 report from the Special Inspector General for Afghanistan Reconstruction (SIGAR) documented weak accounting systems at the Afghan Ministry of Health. Even though the report had no direct evidence of fraud and the health program was successfully delivering services, SIGAR recommended USAID suspend the program.

By contrast, the World Bank’s 2008 Detailed Implementation Review of the Indian health sector not only included evidence of procedural failures, such as bid rigging, but also documented results failures, like continuing high malaria rates and inoperative hospitals. If the World Bank and India had reported these results failures earlier, the cases where corruption was big enough to affect programs would have come to light much sooner.

We think results on service delivery, population health, and institutional development are the key piece of information that could change the dynamics of the scandal cycle. This kind of information can help funders communicate more effectively about why they are deciding to suspend or continue aid, set appropriate standards for when aid should be halted, and establish new funding mechanisms that make it more difficult to divert funds.

We recommend the following three steps to improve funder response:

  1. Communicate using results. When a scandal erupts, communicating the funder’s actions to control or prevent corruption to stakeholders, the media, and the broader public is important. But emphasizing whether health aid programs are achieving intended results is also an essential component of the communications strategy. If a program is achieving results, stakeholders and constituents would better understand a funder’s decision not to suspend aid when a scandal erupts (while investigating abuse and working with the recipient to address the problem).
  2. Differentiate responses by results. In addition to responding to corruption allegations (which typically come from whistleblowers), tracking program results could help funders detect corruption. If a program is falling short of achieving results, corruption might be a contributing factor and an investigation could help determine whether and how much. Moreover, results data would allow funders to determine whether corruption is—or is not—hampering program implementation, and to recalibrate anti-corruption controls accordingly.
  3. Disburse in proportion to results. Where feasible, paying for results in health could help ensure that funds are only paid out when results are achieved. This approach makes it harder to divert funds because payments only occur after the program’s impact is measured. In programs that pay for results, dishonest people can only skim off funds if they have been very efficient at generating impact. In practice, they are likely to simply set their sights elsewhere.

The Scandal Cycle

The Global Fund’s recent statement recognizes the importance of communicating the results of its health grants to Nigeria, but it doesn’t address whether it is helpful to suspend aid over a relatively small amount of fraud or lack of supporting documentation. Our paper encourages funders to incorporate information about program results into their risk management strategies so they can communicate better, detect corruption sooner, and make more considered choices about creating or responding to scandals.

Continue reading →

Guest Post: Corruption Among Development NGOs, Part 3–The Need for Collective Action by Funding Agencies

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Roger Henke, Chairman of the Board of the Southeast Asia Development Program (SADP), a development grantmaker based in Cambodia, contributes the following guest post (the third in a three-part series):

Previous posts on development NGO corruption described a survey tool and its results in Cambodia and the conundrum of using the upward accountability relationship between local NGOs (LNGOs) and the grantmakers funding them for remedial action. The analysis of the report which underlies much of those contributions includes another foundational premise: Given the systemic functioning of Cambodia’s (and other countries’) LNGO sectors, anticorruption action to hold these LNGOs to account needs to be collective in order to be effective.

The characterization of the sector as “systemic” is meant to capture fact that nearly all LNGOs are funded by more than one, often five or more, grantmakers, while these grantmakers in turn, each fund many (sometimes more than 25) LNGO partners. To see why this matters for upward accountability, suppose for the moment that a given Grantmaker X takes seriously its responsibilities to diligently oversee LNGO Partner Y, and suppose further that Grantmaker X uncovers a problem. What happens next? The best case scenario is that the LNGO acknowledges the problem and fixes it, while the worst-case scenario is that both the LNGO and the grantmaker ignore the problem. Both of those happen sometimes. But the more common outcome is this: The LNGO fails to deal with the problem, and eventually Grantmaker X decides to stop funding it. But this affects LNGO Y only temporarily, because it has (or can find) other funders, many of which may not exercise the same degree of diligence as Grantmaker X. So nothing much changes. Even when Grantmaker X communicates with other co-funders about the problems, and more of them decide to question their support of LNGO Y, it takes a fair level of coordinated grantmaker disinvestment to put an LNGO out of business. That level of coordination is rare even in cases of obvious crisis, and absent during more mundane times.

What is needed, then, is more collective action. Many grantmaker staffs would agree with this in principle, but the dominant response is generally not action but resignation, dressed up as “realism”: “Why waste time on beating a dead horse? Even if local grantmaker offices were all willing to collaborate, aligning the diverse requirements regarding reporting, auditing, etc. of all the headquarters….forget it.” I reject this defeatism. One rarely knows that something won’t work until one tries, and my experience in Cambodia is that practical pilots are very rare. So, what would proper collective diligence regarding financial management imply in practice? Continue reading →

Guest Post: Corruption Among Development NGOs, Part 2–The Hot Potato of Upward Accountability

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Roger Henke, Chairman of the Board of the Southeast Asia Development Program (SADP), a development grantmaker based in Cambodia, contributes the following guest post (the second in a three-part series):

My previous post in this series described the results of a survey that estimated the incidence of fraud and associated problems within the Cambodian NGO sector. The survey utilized a relatively independent source, the grantmakers that fund local NGOs (LNGOs), and triangulated the results with information supplied by the firms that perform external audits for LNGOs. The basic idea was that grantmakers are likely to have an evidence-based opinion of the quality of their LNGO partners’ financial management, governance, and fraud risk (and fraud incidence). After all, grantmakers assess organizational soundness before awarding a first grant to a potential partner LNGO, periodically monitor the work being funded by that grant, and require extensive, often cumbersomely regular, results and financial reporting, as well as yearly or project-based external audits. To put it simply: Grantmakers conduct regular due diligence (in the broad sense of the term) on LNGOs.

It seems strange that such an obvious source of objective data on NGO corruption and some of its correlates had, to my knowledge, never been considered before. Why not? My guess would be that the strained and ambivalent relationship that the aid community has with concept of so-called upward accountability is to blame. The engagement is strained in at least the following two aspects: Continue reading →

Guest Post: Corruption Among Development NGOs, Part 1–Getting the Facts

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Roger Henke, Chairman of the Board of the Southeast Asia Development Program (SADP), a development grantmaker based in Cambodia, contributes the following guest post (the first in a three-part series):

Compared with media attention to corruption among public officials and corporate interests, corruption in the non-profit sector is virtually ignored (though a recent GAB post on NGO corruption in India is a notable exception). This lack of interest is matched by the absence of sustained substantive debates about the sources of NGO sector corruption and the effectiveness of remedial interventions. My own experience with these issues derives from my involvement with the NGO sector in Cambodia. Corruption within our own house is a regular topic of informal conversation, and also makes it into our periodic sectoral assessments (though often through oblique references to concerns like “weak financial systems” and the “lack of checks and balances”). However, there are no efforts at all to go beyond these anecdotes and self-reported “weaknesses” to gather systematic, externally validated evidence about levels of corruption, let alone about issues like costs of corruption or the way it correlates with characteristics of the NGO sector that would offer entry points for positive change.

Given the comparative importance of development aid channeled through the NGO sector in countries like Cambodia, this lack of attention to NGO corruption is unfortunate. Admittedly, gathering information on local NGO (LNGO) corruption is challenging. Yet there are potentially useful sources of information that have not been exploited. For example, LNGOs are funded by grantmakers, and these grantmakers (often criticized by LNGOs for their cumbersome administrative requirements and time-consuming monitoring visits) are a possible source of data about LNGO fraud and its correlates. Additionally, the audit firms with an LNGO client base are another possible source of information.

In 2014, to test the willingness of grantmakers and audit firms to share information on their LNGO partners and NGO client base, we at SADP piloted a grantmaker and audit firm survey. The results were promising enough to repeat and expand the exercise in 2015. In this second grantmaker survey, 18 out of 26 grantmakers approached agreed to participate, and 13 of those 18 shared LNGO partner-level information (for a sample of 93 LNGOs). The grantmaker survey queried incidence and seriousness of (1) financial management problems, (2) governance problems, and (3) fraud. (In order to maximize participation, the survey prioritized brevity and simplicity over depth of information.) The audit firm survey (in which four of the five firms approached agreed to participate) asked only for some aggregate data (total number of LNGO audited, number of audits that identified fraud, number of audits that flagged serious financial system issues, etc.). Admittedly, neither the sample of grantmakers nor the sample of LNGOs is statistically representative of Cambodia’s NGO sector, but the surveys provide more valid information about corruption in development NGOs in Cambodia than has previously been available. And the quantitative picture emerging from the combination of these two data-sources about the organizational quality of Cambodian LNGOs is both revealing and disheartening. Interested readers should check out the full report; the most important findings are as follows: Continue reading →

Guest Post: After the Media Circus, What (If Anything) Have We Learned from the Panama Papers?

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GAB is pleased to welcome back Professor Jason Sharman, Deputy Director of the Centre for Governance and Public Policy at Griffith University, Australia, who contributes the following guest post:

After the initial flurry of media attention to the Panama Papers, Matthew Stephenson rightly asks how much, if anything, we have really learned from this affair beyond the celebrity gossip.

A notable degree of modesty is in order here, as what we have seen so far is a tiny, almost certainly unrepresentative sample of the vast quantity of information leaked to International Consortium of Investigative Journalists (ICIJ). The initial wave of media coverage related to 140 individuals, including 12 heads of state or government. Since the ICIJ database became searchable on May 9th, we have a few more names, mostly small-time crooks, and it is possible to run individual name searches to your heart’s content. Nevertheless, given that Mossack Fonseca had created 214,000 shell companies, what we have seems to be less than 1% of their clientele, and presumably the most sensational and outrageous cases. If you looked at your average big international bank, took the records of 214,000 accounts, and subjected them to a detailed financial audit, you probably would find at least a few hundred people engaged in crime or some other seriously shady business (putting banks’ own criminal conspiracies like rigging the LIBOR and Forex markets and sanctions-busting to one side).

Matthew’s earlier post asked about the structure of the offshore shell company industry–in particular, whether it was dominated by a few major providers, or whether it was a highly fragmented market with many firms, each with small market share. The answer is both: There are a few big wholesalers of shell companies, four or five, plus a couple in the US. The wholesalers sell to thousands of intermediary retailers, who then sell to the end-users, i.e. the beneficial owners. I was surprised by how many retailers Mossack Fonseca dealt with (14,000), given that the other wholesalers of equivalent size engage with 2,000-3,000 intermediaries. The difficulty keeping track of this number of retailers, let alone their customers, might explain Mossack Fonseca’s otherwise-puzzling suicidal indiscretion in transacting with customers who brought a huge amount of risk for a fairly trivial sum of money, e.g. those on US government sanctions lists.

What does the structure of the industry mean for regulatory solutions? The retailers could take up the slack if the wholesalers were put out of business, although the process of forming shell companies would be less efficient and more expensive. More importantly, the more concentrated the industry, the easier it is to regulate, compared to the whack-a-mole situation of thousands of independent retailers. As Rick Messick rightly points out, for this regulation to work, however, it is necessary for the Eligible Introducer system between wholesalers and retailers to work in identifying beneficial owners. Despite a litany of earlier high-profile failures, a Guardian piece actually suggests that the British Virgin Islands authorities had recently got on top of this problem: in 2015, 90 requests from the local Financial Intelligence Unit to Mossack Fonseca turned up the names of 89 beneficial owners. However, because customer identity documents are now almost always scans rather than paper, there seems to be no good reason why they can’t be held in the jurisdiction of incorporation.

More broadly, with the Panama Papers and the earlier April 2013 offshore leak, we (or at least the ICIJ) now have information on just over 320,000 offshore shell companies, which probably represents something like 15-20% of all the offshore shell companies ever created. You can work out the total number in that BVI has about 40-45% of the worldwide market. It currently has 450,000 active companies, and 950,000 formed in total since the creation of its registry. If we could draw a random sample of these companies and the associated documentation, rather than cherry-picking the worst of the worst, then we could form a much more accurate and robust conclusion on what the typical uses of offshore shell companies actually are.

In just looking at the information we do have from the Panama Papers, two things are fairly apparent, yet don’t seem to have attracted much comment so far: Continue reading →