When and Why Do Corrupt Politicians Champion Corruption Reform? A Character Study

Can corrupt leaders enact effective anticorruption reform? The brief answer seems to be yes: Leaders who are (perceived as) corrupt can initiate and support effective anticorruption reform efforts. For example, as this blog has previously discussed, President Peña-Nieto (who has repeatedly been accused of corruption and graft) supported constitutional anticorruption reforms in Mexico. Egypt’s current President, Abdel Fattah al-Sisi, has similarly launched various anticorruption campaigns, even while fending off numerous corruption allegations.

But why do corrupt leaders institute anticorruption reforms? While there’s no universal explanation, there appear to be at least three archetypes that might help anticorruption activists identify and push unlikely reformers: The Power Player, The Top-Down Director, and The Born-Again Reformer. Continue reading

Corrupt Land Grabbing: A Cambodian Response

For the vast majority living in developing nations the principal source of wealth is  land: whether the plot where their house is located, the fields they farm, or the forestlands that provide daily sustenance.  The first effects of economic development often show up as sharp increases in the value of this property.  Once valuable only as a place to locate a small village or to eke out a living in subsistence agriculture, land prices suddenly skyrocket when an airport, ocean terminal, or other significant new infrastructure is to be located nearby.  While offering neighboring property holders a chance to escape poverty, these investments can also put them at great risk.  Land registries in poor countries are often not well-kept and registry staff poorly paid, making the doctoring or forging of ownership records possible.

An example what can happen occurred recently near Sihanoukville City, Cambodia.  After plans to expand the city’s port were announced, a powerful official connected to the port authority began a campaign to evict residents of a nearby village from land they live on and which their families have farmed for generations.  Strategically placed bribes have given him a colorable claim to the land, and he has mobilized local authorities to try and force the residents off the property.

Although all too often Cambodians in a similar situation have surrendered, a group of villagers decided to fight and turned to Bunthea Keo, a young Cambodian public interest lawyer, for help.  Thea brought suit to halt the eviction, and in a paper written for the Open Society Foundations’ Justice Initiative he explains not only the legal theories behind the case but the organizational and financial issues involved in bringing a public interest suit on behalf of a large group of citizens in Cambodia.  It is the ninth in a series of papers the Justice Initiative has commissioned on civil society and anticorruption litigation following earlier ones on i) standing by GAB editor-in-chief Matthew Stephenson, ii) civil society litigation in India by Vidhi Centre for Legal Policy Director Arghya Sengupta, iii) private suits for defrauding government by Houston Law School Professor David Kwok, iv) private prosecution in the U.K. by Tamlyn Edmonds and David Jugnarain, v) damages for bribery under American law by this writer, vi) public trust theory by Professor Elmarie van der Schyff, a professor of law at South Africa’s North-West University, vii) private suits for procurement corruption by Professor Abiola Makinwa of the Hague University of Applied Sciences, and viii) international tribunals as a means for forcing government action on corruption by Adetokunbo Mumuni, Executive Director of the Social and Economic Rights Project.  All papers are available here.

Suing Governments For Corruption Before International Tribunals: SERAP v. Nigeria

Last week I reported that the Socio-Economic Rights and Accountability Project or SERAP , a Nigerian NGO, was being sued by the country’s former first lady for urging the authorities to investigate her for receiving “small gifts” ($15 million in total) while her husband served in government, first as Governor of the oil-rich state of Bayelsa, then as Vice-President and later President.  While the saga of the first lady and her “small gifts” recently took another unusual (bizarre?) legal twist, this week the focus is on SERAP and one its most creative approaches to combating corruption in Nigeria: the precedent setting suit it brought against the Government of Nigeria in the Court of Justice of the Economic Community of West African States  for corruption in education.

The ECOWAS Court is one of several regional international tribunals established to hear disputes between neighboring countries, in its case 15 states in West Africa.  The Court’s statute also grants it jurisdiction to entertain actions against a member state for human rights violations.  In 2007 SERAP took advantage of this provision to bring the Government of Nigeria before the bar of justice for its failure to curb massive corruption in the agency funding schools in disadvantaged areas of the country.  While SERAP’s argument was straightforward — Nigeria’s inability to curb corruption denied citizens’ their constitutionally guaranteed right to education – the SERAP suit appears to be a first: a human rights action based on a state’s failure to control corruption.

The Nigerian government lodged several objections in opposition: SERAP had to take its case first to Nigerian courts; the ECOWAS Court had no jurisdiction to hear the matter; SERAP had no standing to sue; the right to education was not justiciable.  But in its landmark decision in favor of SERAP the Court swept all of them aside, ruling that corruption in education could constitute a violation of the right to education if government did not make a serious effort to prosecute the corrupt officials and recover the stolen funds.  SERAP v. Nigeria stands as an important precedent for civil society groups in countries where governments are unwilling to address deeply-ingrained, high level corruption that denies citizens constitutionally guaranteed rights.  It also demonstrates how an energetic civil society group committed to fighting corruption can find a creative legal argument to unlock the courthouse door.

Details on the case are in this paper by Adetokunbo Mumuni, SERAP’s Executive Director and its lead counsel in the action.  The paper is the eighth in a series commissioned by the Open Society Justice Initiative on civil society and anticorruption litigation.  It follows earlier ones on i) standing by GAB editor-in-chief Matthew Stephenson, ii) civil society litigation in India by Vidhi Centre for Legal Policy Director Arghya Sengupta, iii) private suits for defrauding government by Houston Law School Professor David Kwok, iv) private prosecution in the U.K. by Tamlyn Edmonds and David Jugnarain, v) damages for bribery under American law by this writer, vi) public trust theory by Professor Elmarie van der Schyff, a professor of law at South Africa’s North-West University, and vii) private suits for corruption in public procurement by Abiola Makinwa, a lecturer in commercial law at the Hague University of Applied Sciences.  All papers are available here on the JI Web site.

Why Not Citizen Suits for Corrupt Procurements?

Beginning from the simple and indisputable premise that those harmed by corruption should be able to do something about it, Professor Abiola Makinwa of the Hague University of Applied Sciences develops a novel approach to attacking the ubiquitous problem of corruption in public procurement.  To appreciate it, take an example.  Suppose government awards a contract to a company to build a road so farmers in the region can more easily and cheaply bring their products to market.  Suppose further that thanks to corruption the road is either never built or it quickly becomes impassable.  Who suffers most from the construction company’s failure to perform the road building contract?  Who has the greatest stake in remedying the wrong? Continue reading

Guest Post: The Long, Long Road from Talking Transparency to Curbing Corruption in Mauritania

GAB is delighted to welcome back Till Bruckner, an international development expert who recently spent six months living Mauritania, and contributes the following guest post based on his experience there:

What do fish and iron have in common? Answer: Mauritania, a largely desert country of less than four million people in north-western Africa, is immensely rich in both. At the same time, most Mauritanians are poor. And one of the biggest reasons is corruption and misgovernance.

Consider first fishing. Although Mauritania has some of the world’s richest fishing grounds, its marine wealth is carried away by foreign ships whose owners often bribe senior government figures to obtain fishing permits and take their catch straight to Europe or Asia. As a result, the country has failed to develop a significant fishing industry, or domestic fish processing industry, of its own, and a fishing industry that boasts an annual catch of half a million tons generates a mere 40,000 jobs inside Mauritania. Yet to the south, Senegal translates a catch of similar size into at least 130,000 jobs, while to the north, Morocco has turned its million-ton-a-year catch into a massive export industry whose turnover is projected to reach two billion dollars by the end of this decade.

Inland, deep in the Sahara, some mountains contain more metal than rock, consisting of up to 75% iron, one of the highest concentrations in the world. Mauritania nationalized its iron mines in 1974, creating the state-owned monopoly company SNIM. Its workers blast the slopes to rubble, and conveyor belts transport the rubble into waiting railway waggons. The longest train in the world then chugs its way across 700 kilometres of desert, loads its cargo onto giant foreign freighters—and neither the ore nor most of the money paid for it are ever seen again. The looting dynamics in Mauritania’s mining sector are illustrated by the stark contrast between Zouerate, the town in the Sahara where the iron is mined—which looks like a dystopian hellhole straight out of a Mad Max film—and the rich suburbs of the capital city of Nouakchott (which produces virtually nothing), where giant villas rise out of the sand, and oversized SUVs cruise the streets. And in Nouakchott itself, in the poor suburbs, families living five to a windowless room have to pay for their drinking water by the barrel.

The preferred prescription in a situation like this (from the usual suspects: development professionals, anticorruption activists, etc.) is a combination of transparency, accountability, and civil society monitoring. But Mauritania is actually doing well on those dimensions. Continue reading

Contract Administration: A Step-Child of Anticorruption Policy?

It is hard to imagine a more prosaic-sounding government job title than “contract administration.”  It is equally hard to imagine one more neglected, both by governments and the anticorruption community.  The House of Commons reports that British civil servants consider contract administration “mechanical and unimportant,” and with few exceptions those concerned with controlling corruption have paid the issue little attention.

But for those seeking to curb government corruption, contract administration is anything but prosaic or unimportant.  Once a firm has been awarded a contract to furnish goods, provide services, or build a building there are many ways it can cheat government: by delivering substandard goods, padding invoices or performing unneeded extra work to name.  Zambia’s Auditor General found road construction companies had failed to provide the required cement, concrete, and gravel in all 18 roads projects it audited, meaning the roads will not last as long or carry as much traffic as the government contracted for. An IT firm New York City hired to computerize the city’s payroll system bilked it out of more than $600 million through inflated invoices and phantom extra work.  In India a medical equipment manufacturer supplied neonatal equipment that exposed babies and hospital staff to electrical shocks.

The bad news is that these are just a few examples of the ways government can be cheated during the execution of a public contract.  The good news is there are handful of steps governments can take to reduce if not eliminate corruption during contract performance.  They are: Continue reading

To Fight Corruption, the Green Climate Fund Should Improve the Anticorruption Mechanisms in its Accreditation Process

The Green Climate Fund (GCF), which the UN created in 2010, seeks to marshal pledges of $100 billion per year by 2020 from wealthy nations (which have been disproportionately and primarily responsible for the world’s carbon emissions), as well as other private and public sources, to finance climate change mitigation and adaptation projects in developing nations, which bear the greater share of adverse effects from those emissions. Last March, the United States delivered $500 million to the GCF, the first installment of the $3 billion pledge the United States made as part of the COP 21 UN Climate Summit last December. Climate and development advocates hope that the GCF will support development that is both “low-emission” and “climate-resilient,” helping countries limit greenhouse gas emissions and adapt to impacts of climate change. The GCF operates principally through so-called “accredited entities”—private and public sector subnational, national, regional, and international entities, which will implement climate change programs using GCF funds. These entities are selected through an accreditation process (hence the name), which assesses their ability to manage resources against the GCF’s fiduciary principles, environmental and social safeguards, and gender policy. Specific projects are assessed against investment criteria, including impact potential, sustainable development potential, responsiveness to recipients’ needs, promotion of country ownership, and efficiency.

As with many humanitarian or development aid efforts, the GCF is not without corruption risks. Recognizing this, the GCF Board approved an Initial Monitoring & Accountability Framework for the accredited entities that manage and implement GCF projects. Yet the GCF should do more to ensure that its basic accreditation mechanisms themselves rigorously evaluate entities for their capacities not only to disburse climate funds but also to monitor and address corruption. This up front assessment would complement efforts to ensure that entities, once accredited, remain faithful to the Fund’s fiduciary principles. The following aspects of the GCF accreditation process raise potential corruption risks, and the GCF should take steps to address them: Continue reading