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 →

Working Paper on “Corruption as a Self-Reinforcing ‘Trap’: Implications for Reform Strategy”

Last month the Quality of Government (QoG) Institute at the University of Gothenburg published a working paper of mine, entitled Corruption as a Self-Reinforcing “Trap”: Implications for Reform Strategy, as part of their QoG working paper series. Here’s the abstract:

Corruption is widely believed to be a self-reinforcing phenomenon, in the sense that the incentive to engage in corrupt acts increases as corruption becomes more widespread in the relevant community. Leading scholars have argued that corruption’s self-reinforcing property implies that incremental anticorruption reforms cannot be effective, and that the only way to escape a high-corruption equilibrium “trap” is through a so-called “big bang” or “big push.” This widespread view is mistaken. After surveying the reasons corruption might be self-reinforcing (or in some cases self-limiting), this paper demonstrates that corruption’s self-reinforcing property does not imply the necessity of a “big bang” approach to reform, and indeed may strengthen the case for pursuing sustained, cumulative incremental anticorruption reforms.

I hope that some readers might find the paper to be of interest. Constructive criticism and other feedback are of course most welcome!

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.

A 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

New Podcast Episode, Featuring Cristina Bicchieri

A new episode of KickBack: The Global Anticorruption Podcast is now available. In this episode, Nils Köbis interviews University of Pennsylvania Professor Cristina Bicchieri about her interdisciplinary work on corruption and anticorruption, which addresses a range of questions including why corruption can be so “sticky,” the role of social norms in shaping corrupt or non-corrupt behavior, how and why perceptions and attitudes toward corruption may differ between men and women, and what the implications of social norm theory are for effective anticorruption strategy.

You can find this episode, along with links to previous podcast episodes, at the following locations:

KickBack is a collaborative effort between GAB and the ICRN. If you like it, please subscribe/follow, and tell all your friends! And if you have suggestions for voices you’d like to hear on the podcast, just send me a message and let me know.

“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 →

New Podcast Episode, Featuring Oz Dincer

A new episode of KickBack: The Global Anticorruption Podcast is now available. This week’s episode features an interview with Professor Oguzhan “Oz” Dincer, the Director of the Institute for Corruption Studies at Illinois State University. In the interview, Professor Dincer and I discuss a range of topics, including new approaches to the challenges of measuring corruption, the concept of “legal corruption,” the role of cultural factors in influencing corrupt behavior (both internationally and within the United States), and troubling developments related to political corruption in Turkey.

You can find this episode, along with links to previous podcast episodes, at the following locations:

KickBack is a collaborative effort between GAB and the ICRN. If you like it, please subscribe/follow, and tell all your friends! And if you have suggestions for voices you’d like to hear on the podcast, just send me a message and let me know.

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 →