Getting State Anticorruption Commissions to Work

In the elections last November 6, citizens in New Mexico and North Dakota voted to amend their state constitutions to establish state anticorruption commissions. In doing so, they joined the vast majority of American states (currently 44 out of 50) that have created similar (or at least similarly-named) commissions—starting with Hawaii back in 1968. The impulse to create a special commission to deal with a significant problem like public corruption is certainly understandable. Indeed, many state commissions were created immediately after a major public corruption scandal, when public frustration was running high. At the same time, though, the record of such state-level anticorruption commissions in the US is mixed at best (see, for example, here, here, and here). And despite the similarities in their names, many of these commissions actually do quite different things—with some functioning like ethics commissions that publish quasi-legislative standards and others functioning more like mini-prosecutors’ offices. Indeed, it’s not entirely clear that voters in New Mexico or North Dakota knew exactly what they were voting for when they went to the ballot boxes. In New Mexico, the referendum measure left to it to the state legislature to determine how the commission would operate, while the language in the North Dakota referendum suggested that the commission’s duties would be largely optional.

Despite their diversity and admittedly mixed track record, state anticorruption commissions have many potential benefits. They can provide clear reporting channels for individuals who have witnessed corruption; they can evaluate systemic corruption risks by sector and recommend more targeted reforms to state legislators; and they can enhance accountability by investigating ethics complaints and corruption allegations, and referring appropriate cases to state prosecutors’ offices. But in order to be effective, state commissions need to have certain institutional features and safeguards.

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South Africa Exhibits the Pitfalls of Private Prosecutions for Corruption

In March 2018, after several years of investigation stemming from allegations of corruption and mismanagement, South Africa’s National Prosecuting Authority (NPA) announced that it would not pursue charges against former South African Revenue Service Commissioner Tom Moyane. But this was decision short lived. A few weeks later, the NPA abruptly reversed course, explaining that it had reopened its investigation into Moyane and was reconsidering its decision not to prosecute. In the interim, the South African civil rights group Corruption Watch had publicly requested from the NPA a certificate of nolle prosequi—a document formally affirming the NPA’s decision not to prosecute. Obtaining such a certificate was a preliminary and necessary legal step for Corruption Watch to launch its own private prosecution of Moyane—which, under South African Law, Corruption Watch would have been able to do if the NPA formally declined to prosecute. Corruption Watch was calling NPA’s bluff, saying, in effect, “prosecute Moyane or else we will.”

Corruption Watch’s implicit threat stems from Section 7 of South Africa’s Criminal Procedure Act (CPA), which permits a citizen to criminally prosecute another person or entity if the NPA formally declines to prosecute. These prosecutions are similar to civil suits but with all the trial rights and potential penalties associated with a state prosecution. Moreover, at any time during a private prosecution the NPA may request permission from the supervising court to step back in and take over the case. South Africa is not unique in this regard: There are provisions for private prosecutions in other countries—especially Commonwealth countries—including the UK, Canada, Australia, Zimbabwe, and Kenya, as well as in China and Israel.

Many commentators in the international community have been optimistic about the potential of private prosecutions, particularly in combating corruption (see here, here, and on this blog here). And forces inside South Africa have been especially enthusiastic; in 2017, the South African civil society organization AfriForum launched its own dedicated private prosecutions unit focused on prosecuting corrupt government officials, with other organizations expressing similar interest. Much of this optimism stems from sheer frustration with the current prosecution regime in South Africa, a country that has long been plagued by selective prosecution, especially in the area of corruption.

South Africa could certainly use more pressure on the NPA to act; the country would also benefit from more resources, whatever the source, devoted to investigating and prosecuting corruption cases. And the fact that the threat of private prosecution appears to have spurred the NPA to action in the Moyane case is encouraging. Nevertheless, South Africa’s recent flirtation with private prosecutions actually illustrates why countries—including and perhaps especially South Africa—should be cautious about embracing organized, comprehensive private prosecution regimes to supplement traditional state prosecution. Continue reading

A Border Patrol Surge Will Lead to a Border Corruption Surge

The United States Customs and Border Protection service (CBP) is the largest law enforcement agency in the United States—and one of the most corrupt. CBP employs 59,000 people, of whom almost 20,000 are Border Patrol agents. Every day, these agents process over a million incoming U.S. travelers, 300,000 vehicles, and 78,000 shipping containers. On any given day they might seize over 5,000 pounds of narcotics and apprehend nearly 900 people at or near U.S. borders. Yet according to “conservative [] estimate[s],” about 1,000 Border Patrol agents—5% of the total—violate their official duties in exchange for bribes. To take just a handful of some of the most egregious examples: One CBP agent permitted smugglers to bring over 612 kilograms of cocaine into the U.S. in exchange for $1,000 for each kilo he waved through his checkpoint. Another allowed 1,200 pounds of marijuana to enter into the U.S. in exchange for $60,000. Yet another CBP agent permitted vehicles containing undocumented immigrants to enter the U.S. at a price of $8,000-10,000 per vehicle.

In response to this widespread corruption, the Department of Homeland Security convened an independent Integrity Advisory Panel in 2015. But the Panel’s 2016 report fell on deaf ears, as almost none of its 39 recommendations were implemented. Instead, in line with his hardline stance on immigration, President Trump signed a 2017 executive order mandating hiring an additional 5,000 Border Patrol agents and “appropriate action to ensure that such agents enter on duty . . . as soon as practicable.”

Increasing the number of agents by 25% without devoting significant resources to combat the pervasive corruption in CBP is a terrible idea, and is likely to exacerbate current corruption problems, for three reasons: Continue reading

What the U.N. Treaty Bodies Have Said About Human Rights and Corruption

The nations of the world are parties to numerous treaties where they pledge to respect the rights of their citizens, everything from their civil and political rights to their right to economic development to the right to be free from torture.  Ten of these treaties have an expert body which periodically reports on a state’s compliance with the treaty’s provisions.  As the connection between corruption and human rights violations has become ever clearer, these treaty bodies have begun noting in their reports how corruption contributes to a state’s failure to comply with its human rights obligations.

The Geneva Centre for Civil and Political Rights recently combed through the hundreds of reports the treaty bodies have issued over the past decade to produce a summary and analysis of what they have said on the subject of human rights and corruption. Comments by UN treaty bodies on corruption is a valuable resource for both human rights advocates and anticorruption activists. My thanks to the Centre for producing it.

Putting Corruption on the Human Rights Agenda

The Office of the United Nations High Commissioner for Human Rights along with the UNODC will hold an expert workshop this Monday, June 11, on what the human rights bodies within the United Nations system can do to advance the fight against corruption.  A cross-section of human rights and anticorruption experts will discuss ways to link anticorruption measures with efforts to promote and protect human rights, examine methods for assessing the impact corruption has on the enjoyment of human rights, and consider what more the UN-system, particularily the Human Rights Council, can do to assist member states adopt a rights-based approach to combatting corruption.  More information on the session here.

The workshop will be followed by a meeting jointly organized by Center for Civil and Political Rights, the Geneva Academy of International Humanitarian Law and Human Rights, and the Office of the High Commissioner for Human Rights to develop new advocacy tools for the UN human rights mechanisms, in particular the bodies that oversee compliance with the various human rights treaties, to address the issue of corruption.  More information on this meeting here.

This writer is one of several activists concerned with both human rights and corruption who identfied eight actions that should be immediately taken to align efforts to promote human rights with those aimed at fighting corruption.  The eight are listed in the following letter that will be provided to all those attending the two meetings. Continue reading

Two Essential Volumes on Corruption

The study of corruption and what to do about it is no longer an academic or policy-studies backwater.  Matthew’s bibliography of corruption-related publications now lists over 6,000 books, articles, and reports and, as his regular updates show (thank you Matthew), the list continues to grow at the rate of some 50 plus per month.  That is the good news.  It is also of the course the bad news.  Few practitioners, and I suspect even academics, can claim to have absorbed the learning in the 6,000 current documents let alone keep up with the outpouring of new works.

For those who can’t , I recommend two recent books: Dan Hough’s Analysing Corruption and Alina Mungui-Pippidi and Michael Johnston’s Transitions to Good Governance: Creating Virtuous Circles of Anti-Corruption.  Both do an excellent job of synthesizing and extending recent scholarship on corruption issues, and both do so in a sophisticated but accessible manner.  Both have the added virtue of being available in reasonably priced paperback editions. Continue reading

India’s 2G Spectrum Case: The Scam That Wasn’t?

It all started in May 2009 with a report filed by an NGO, Telecom Watchdog, with India’s Central Vigilance Commission. The NGO claimed that there were gross irregularities, likely due to corruption, in the allocation of licenses to operators for the 2nd Generation mobile communication standard spectrum (2G spectrum for short). By October 2009, India’s premier investigating agency, the Central Bureau of Investigation (CBI), had opened an investigation into the allegations, and in November 2010, the Comptroller and Auditor General of India estimated the losses to the government from the alleged misconduct at a whopping US$29 billion. Indian media called it the “biggest scam in the history of Independent India.” Time Magazine put it just behind Watergate as the second worst case of abusing executive power.

Petitions were filed in the Supreme Court of India pressing for cancelling the allocation and making sure that those behind the corruption would be held responsible. In 2012, the Supreme Court obliged, canceling all 122 licenses and imposing huge fines. The Court declared that the then-Minister for Communications and Information Technology, A. Raja, had used an inappropriate allocation procedure (first-come-first-served rather than an auction) to “favor some of the applicants … at the cost of the exchequer.” In an unprecedented move, the Court also ordered the creation of a “Special Court” to try the cases, and modified regular criminal procedure by curbing intermediate challenges, in order to ensure a speedy trial. The first case was instituted against the former Minister, senior bureaucrats, and prominent businessmen for conspiring to rig the allocation process and cheat the government of revenue.

On December 21, 2017, the Special Court announced its verdict—and it was not what many had expected: The Special Court acquitted all the accused, declaring that “a huge scam was seen by everyone when there was none,” and that “some people created [the perception of] a scam by artfully arranging a few selected facts and exaggerating things beyond recognition to astronomical levels.” The Court also found that, notwithstanding the earlier 2010 report (which others had already suggested was methodologically problematic), the actual losses to the government were marginal at most.

Many commentators were stunned and dismayed by the Special Court’s decision, denouncing it as “shocking” and “flawed.” But after reading the Special Court’s decision, I find myself in agreement with the Special Court’s reasoning. While it’s impossible, in a short blog post, to wade through the merits of the Special Court’s analysis for each of its conclusions, here I want highlight some of the most important arguments in support of the Special Court’s controversial decision. Continue reading