Tag Archives: accountability

Accountability Time for Sri Lanka’s Rajapakse Clan?

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In a groundbreaking order issued October 7, Sri Lanka’s Supreme Court ordered five members of the Rajapakse family and accomplices to answer for driving the once prosperous nation into bankruptcy.  

While Gotabaya was president and three brothers and a nephew ministers, the government took on ever greater levels of foreign debt while recklessly cutting taxes and pursuing unsustainable monetary policies. The result: the economy is expected shrink by 8.7 percent this year, inflation recently exceeded 60 percent, and an additional 2.7 million Sri Lankans will likely fall into abject poverty (here and here).

As economic conditions deteriorated in late spring, the four Rajapkse ministers resigned, and Gotabaya later fled the country as protesters stormed the presidential residence (here). But though out of office, the Rajapakses are not out of power. They still control parliament, and it picked a Rajapkse crony to serve the remainder of Gotabaya’s term as president.

With parliament unlikely to hold the Rajapkses accountable for economic mismanagement and the corruption that underlay it, civil society turned to the one institution in the country that remained largely untouched during the Rajapakse’s misrule: the judiciary.  Last June Transparency International Sri Lanka and three prominent Sri Lankans asked the nation’s highest court to hear their claim that the result of the Rajapakses’ economic mismanagement their constitutional rights to equal treatment, freedom to pursue gainful work, and access to government information had been denied. The petition further asks that:

  • the Central Bank, Finance Ministry, and other agencies be required to produce documents chronicling the mismanagement,
  • a committee be empaneled to examine the documents and compile a report, and
  • the Attorney General be directed to investigate and prosecute any wrongdoing disclosed.

For those fortunate enough to live in functioning democracies, this action would be extraordinary.  A request that a court assume the powers of a legislature and hold those in charge of the government accountable for their actions.

But given the power the Rajapakses accumulated during their long period in office, it appears to be the only path to accountability.  And to the restoration of the democratic freedoms Sri Lanka’s constitution promises all citizens.  Citizen activists, believers in the rule of law, and democrats everywhere will be hoping Sri Lanka’s judiciary can meet this unprecedented challenge.

Accountability Key Words

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No other word is associated more with fighting corruption than “accountability.”  Google turns up 43 million references to the phrase “accountability corruption references” in less than a second (!). There are 177 articles with the word accountability in the title in the latest version of Matthew’s bibliography.

Thanks to Andreas Schedler, we know accountability is not unidirectional. It can go from down to up, as when voters hold politicians to account, and side-to-side, as when a government audit agency reports on the performance of another government entity. As Dale Brinkerhoff explains, the meaning of accountability ranges from nothing more than having to provide information, as when an agency must fille an annual report on its activities, to a politician or administrator having to explain why something is being done or not done, to the imposition of sanctions on someone or some agency for doing or not doing something.

The failure to curb corruption is almost always attributed to a lack of accountability, and prescriptions for reducing corruption inevitably recommend strengthening accountability. But as Schedler, Brinkerhoff, and many others have shown, “accountability” is really a complex of ideas. And that is before trying to parse what ideas lie behind its rough equivalents in other languages: rendición de cuentas in Spanish; bibinka in Filipino; and tanggung gugat sosial in Bahasa. To name but a few

Thanks to American University’s Accountability Research Center, we now have a guide to the many concepts buried in the English term “accountability” and similar ones in Arabic, Chinese, Hindi, and a half a dozen other major tongues. Its title is Accountability Keywords; it’s a web site with a monograph of the same name and some 40 posts to date that expound on how the term is used in different ways in different circumstances in different places. An invaluable resource for advocates, policymakers, and scholars.    

Guest Post: Fighting Corruption Through Social Audits in India: How Far Can Voice Get Without Teeth?

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Today’s Guest Post is from Suchi Pande, Scholar in Residence at American University’s Accountability Research Center and Center Founder and Director AU Professor Jonathan Fox.

India’s National Rural Employment Guarantee became a lifeline for migrant labor arbitrarily expelled from cities and left stranded and broke due to COVID-19 lockdowns. One of the largest employment safety net program in the world, it comes with a mandate for state governments to carry out “social audits,” a procedure empowering its beneficiaries to monitor leakages and the denial of rights resulting from the arbitrary exercise of power across India’s 600,000 villages. In short, to spotlight corruption.

How? With a social audit, program beneficiaries publicly scrutinize its implementation and government actors must respond to shortcomings in officially convened public forums and redress grievances. The audits date to a 2005 law driven by a combination of a grassroots advocacy campaign and a reform-minded government.  Social audits can engage populations directly in the fight against corruption where:

  1. the audit reveals corruption in some form, such as the leakage (embezzlement) of program funds, demands for bribes to release the funds, or the outright denial of participants rights to the funds;
  2. those conducting the audit have the capacity to communicate their findings clearly and understandably to the affected individuals or group;
  3. those affected are informed of the findings and understand the violation of the law or policy that led to the losses; and
  4. a third party — government agency or civil society group — convenes a public forum where government officials and elected representatives discuss the audit findings in an atmosphere free from reprisal, where the affected persons can participate and vouch for the accuracy of findings.
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“Instead of Europeanizing Kosovo, We Have Balkanized EULEX”: The Need for Continued Localization in the EU’s Largest Mission

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The European Union Rule of Law Mission in Kosovo (EULEX)—the EU’s largest, costliest, and most ambitious mission—has operated in Kosovo for almost a decade with the goal of assisting the country’s judicial authorities and law enforcement agencies in tackling organized crime, corruption, and other threats to the country’s stability. To date, the 800-person mission—which consists of police officers, prosecutors, judges, and has its own power of arrest and prosecution—has resulted in over 40,000 court judgments and the investigation of over 400 war crimes. Yet allegations of corruption have dogged the project. Three years ago, Maria Bamieh was dismissed from her position as a EULEX prosecutor when she alleged corruption within the Mission, including a €300,000 bribe accepted by a EULEX judge. While a subsequent investigation and report by Professor Jean-Paul Jacqué (on behalf of the EU) dismissed Ms. Bamieh’s specific allegations, the report recommended that EULEX be reformed to better deal with corruption—a problem that, the report noted, remained “omnipresent in Kosovo.” Allegations of corruption were re-ignited in late 2017, when EULEX’s Chief Judge, Malcolm Simmons, resigned after alleging “several cases of corruption at the heart of the mission.” The accusations and counter-accusations between Judge Simmons and EULEX are complicated, and it is not my objective here to try to evaluate their credibility. In brief, Judge Simmons’ most serious allegation is that senior EULEX officials pressured him to convict Deputy Prime Minister (and former Kosovo Liberation Army commander) Fatmir Limaj, in order to prevent Mr. Limaj from taking part in the Kosovan election. (Judge Simmons also leveled other accusations, including an improper romantic relationship between a judge and a Kosovan jurist, and that a fellow judge had hacked his email.) The Mission swiftly responded that Judge Simmons himself was “the subject of a series of independent investigations into serious allegations against him,” with an EU official acknowledging that Judge Simmons is subject to five investigations and “allegations that Simmons interfered in some of the most important verdicts” in recent years. While it remains to be seen which allegations (if any) are true, the situation appears to be lose-lose for the EULEX mission.

The current EULEX mandate expires on June 14, 2018. The controversy swirling around Judge Simmons’ resignation, coupled with the upcoming discussions as to whether to renew EULEX’s mandate, provides a timely opportunity to reassess a flaw that has plagued EULEX since its inception: an actual and perceived lack of trust and accountability between the mission and local Kosovan judicial and law enforcement authorities. If EULEX’s mandate is renewed this year, steps should be taken to address this problem.

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Do Mandatory Asset Declarations Reduce Corruption? And If So, How?

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The United Nations Convention Against Corruption (UNCAC) calls on States Parties to adopt asset declaration and financial disclosure regimes for their public officials (see Article 8, paragraph 5 and Article 52, paragraph 5), and most states have complied with this commitment in one form or another. Indeed, according to a report by the Stolen Asset Recovery Initiative, there is a continuous upward trend in the number of states that have enacted financial disclosure laws (see Figure 1.1 at page 8). Yet the near-universal popularity of mandatory asset declarations does not mean that this tool is actually effective. True, there have been a few high-profile cases where asset declarations played an important role in anticorruption efforts, such as the impeachment of the Chief Justices of the Philippines and Sri Lanka, as well as the resignation of the Vice Rectors of a prestigious university in Thailand and the top brass of a state bank in Portugal. But such high-profile cases are rare and may not be representative of the larger picture. In a previous post on this blog, Rick Messick expressed some skepticism about the extent to which asset declarations and other forms of mandatory financial disclosures actually contribute to anticorruption efforts, and criticized what he saw as extravagant and unrealistic claims about the effectiveness of such disclosures as anticorruption tools.

So what does the existing research actually say about the effectiveness of asset declarations on anticorruption efforts? While there are only a few studies on this topic, the evidence they supply nevertheless offers valuable insights.

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Improper Payments and American Financial Mismanagement

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Sound government fiscal management requires, among other things, ensuring that government payments are made accurately—to the right payee, in the correct amount, and with sufficient documentation. Failure to implement effective systems to prevent improper payments leaves the government checkbook at risk of fraud, corruption, and other forms of abuse. Alas, the magnitude of improper payments in the United States is astounding: in 2016, the US reported $144 billion in improper payments—nearly the double the budget for the Department of Education. Improper payments for Medicaid alone are more than ten times the total size of the Community Development Block Grants that the Trump Administration intends to cut – allegedly to save money, even though eliminating this program would have disastrous consequences for programs such as Meals on Wheels.

While improper payments in other contexts are part of corruption schemes, such as the “ghost soldiers” in Afghanistan that Sarah his discussed in this post, improper payments under domestic U.S. programs like Medicaid are more likely to be the result of fraud or simple mismanagement than public corruption. That said, we have no idea how much corruption contributes to the massive improper payments problem. In either case, the most effective policy responses are largely similar, regardless of the underlying cause of the problem.  However, the U.S. response to the improper payments problem has so far been inadequate.

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Are Better Principals the Answer to the Corruption Problem?

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Those in the business of giving policy advice know the surest way to guarantee a policymaker ignores their counsel is to say the problem is “complicated” or “there are no easy solutions” and that the best way to see the advice is accepted is to cast it in the form of a simple, straightforward solution that fits easily onto a single power point slide. World Bank economists have learned this lesson well as their recent report on how developing countries can cure corruption and related governance ills demonstrates.  Making Politics Work for Development: Harnessing Transparency and Citizen Engagement manages to state the solution to the corruption problem in one sentence: Give citizens more information about politicians so they will know which ones to vote out and which ones to keep at the next election.

The authors are able boil the complex problems of corruption and bad governance down into such a neat solution thanks to application of principal-agent theory.  But in avoiding the “it’s complicated”/“no easy solution” Scylla have they veered into the Charybdis of oversimplification?

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Watching the Watchmen: Should the Public Have Access to Monitorship Reports in FCPA Settlements?

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When the Department of Justice (DOJ) settles Foreign Corrupt Practices Act (FCPA) cases with corporate defendants, the settlement sometimes stipulates that the firm must retain a “corporate monitor” for some period of time as a condition of the DOJ’s decision not to pursue further action against the firm. The monitor, paid for by the firm, reports to the government on whether the firm is effectively cleaning up its act and improving its compliance system. While lacking direct decision-making power, the corporate monitor has broad access to internal firm information and engages directly with top-level management on issues related to the firm’s compliance. The monitor’s reports to the DOJ are (or at least are supposed to be) critically important to the government’s determination whether the firm has complied with the terms of the settlement agreement.

Recent initiatives by transparency advocates and other civil society groups have raised a question that had not previously attracted much attention: Should the public have access to these monitor reports? Consider the efforts of 100Reporters, a news organization focused on corruption issues, to obtain monitorship documents related to the 2008 FCPA settlement between Siemens and the DOJ. Back in 2008, Siemens pleaded guilty to bribery charges and agreed to pay large fines to the DOJ and SEC. As a condition of the settlement, Siemens agreed to install a corporate monitor, Dr. Theo Waigel, for four years. That monitorship ended in 2012, and the DOJ determined Siemens satisfied its obligations under the plea agreement. Shortly afterwards, 100Reporters filed a Freedom of Information Act (FOIA) request with the DOJ, seeking access to the compliance monitoring documents, including four of Dr. Waigel’s annual reports. After the DOJ denied the FOIA request, on the grounds that the documents were exempt from FOIA because they comprised part of law enforcement deliberations, 100Reporters sued.

The legal questions at issue in this and similar cases are somewhat complicated; they can involve, for example, the question whether monitoring reports are “judicial records”—a question that has caused some disagreement among U.S. courts. For this post, I will put the more technical legal issues to one side and focus on the broader policy issue: Should monitor reports be available to interested members of the public, or should the government be able to keep them confidential? The case for disclosure is straightforward: as 100Reporters argues, there is a public interest in ensuring that settlements appropriately ensure future compliance, as well as a public interest in monitoring how effectively the DOJ and SEC oversee these settlement agreements. But in resisting 100Reporters’ FOIA request, the DOJ (and Siemens and Dr. Waigel) have argued that ordering public disclosure of these documents will hurt, not help, FCPA enforcement, for two reasons:  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 →

America’s Pursuit of Absolute Integrity

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Attempts to control corruption have a long history in the United States.  Since the late 19th century numerous laws have been enacted at the federal, state, and local level to end patronage and nepotism in government employment, control conflicts of interest by public servants, and reduce opportunities for bribery and kick-backs.  Although the current corruption landscape differs from that of 20th century America, policymakers considering anticorruption legislation today can profit from a look at the U.S. experience.

A useful, if sobering, place to start is with Professors Frank Anechiarico and James B. Jacobs’ 1997 analysis based on New York City’s century long effort to combat corruption supplemented by the federal government’s more recent experience with ethics laws.  Useful because the authors analyze many of the same interventions now commonly advocated to combat corruption around the globe: conflict of interest legislation, financial disclosure requirements for public servants, whistleblower protection, the creation of inspectors general, the reduction of officials’ discretion.  Sobering, not only because they conclude these reforms have done little to combat corruption, but also because the authors contend that together these laws have contributed to the current dysfunctional state of American government.  In short, they say, America’s effort to suppress corruption has produced little benefit at great cost.

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