That Corruption Infects the Italian Judiciary Is Now Undeniable

In March 2021, a Milan trial court acquitted Italian oil giant ENI, its partner Royal Dutch Shell, and numerous individuals of bribing Nigerian President Goodluck Jonathan and pals to secure the rights to the lucrative offshore oil field denominated OPL-245. The evidence of bribery was overwhelming, including internal Shell e-mails describing the scheme and the testimony of an ENI official confirming his bosses were fully aware of it. Suspicions that someone had “gotten” to the judges immediately arose stoked by revelations of close ties between the presiding judge and ENI’s senior counsel.

Any doubt that the verdict was tainted was put to rest when the court published its opinion justifying it. As the attached analysis by the British, Italian, and Nigerian NGOs that have pushed the case shows, the court’s “reasoning” was laughable. Two examples of many. The court wrote off the then oil minister’s sale of OPL-245 rights to a company he secretly owned as a trifle because neither he nor the government officials bribed to approve the sale objected. Equally ridiculous, the court found that a Shell briefing note reporting that part of the bribe would be in the form of political contributions simply recounted a rumor then circulating.

Between the strength of the evidence the prosecution presented and the court’s flimsy if not bizarre reasoning dismissing it, the expectation was that the acquittal would easily and quickly be overturned on appeal. That hope is not to be however.  Last week the Italian prosecutors assigned to handle the appeal announced they were withdrawing it. 

Thus ENI, Shell, and the 13 individuals named as accomplices in the payment of a $1.1 billion bribe stand exonerated. And it now clear that the rot in the Italian judiciary reaches into its once revered prosecution service.

Nor is the damage from the rot limited to Italy. Thanks to the doctrine of ne bis in idem (double jeopardy in American law), a Dutch investigation of Shell’s role had to be dropped (here).  

The last hope for justice now lies with the Nigerian judiciary. Ne bid in idem only bars EU countries from pursuing a case. A Nigerian investigation of the companies and their accomplices is underway. It is critical it continue and that the international anticorruption community do all it can to support it given what has happened in Italy.

Moreover, as this blog has urged, it is critical too that the OECD hold Italy to account for its failure to live up to its obligations to sanction Italian companies that bribe foreign officials. The ENI-Shell case must be an outlier not a precedent.

Bribe to Survive: Sextortion and LGBTQ Discrimination

In February 2019, a gay man from Krasnodar, Russia named Stanislav arranged to go on a date with a young man he had met on a dating app. When he arrived at their agreed-upon location, however, the young man was nowhere to be seen. Instead, Stanislav was greeted by police officers, who later beat him and threatened him with criminal prosecution unless he paid a bribe. Just a year earlier, another man, Fedor, similarly found himself on a “fake date” with a man he had met on the same dating app, which ended with him being forced to pay police a US$2,500 bribe after also being beaten and threatened with prison. In both cases, Russian prosecutors refused to carry out any investigations of extortion or police misconduct.

It isn’t just in Russia that police have begun turning to online dating sites and other forms of technology to entrap their victims. By arbitrarily seizing cell phones or creating profiles to set up “fake dates,” law enforcement officers around the world (including in Lebanon, Azerbaijan, Egypt, and Moldova, just to name a few places) have been able to obtain screenshots and photographs to blackmail LGBTQ people into paying them bribes. Not only are victims coerced into paying these bribes to end their torture and humiliation, but they also do it in response to threats of having their arrests publicized on national television, or revealed to their family and employers. In this way, laws criminalizing homosexual activity are imposed not only, or even primarily, to enforce moral ideologies, but rather to expand opportunities for the corrupt extraction of money from vulnerable communities.

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Nigerian Human Rights NGO Denounces Prosecution of Corruption Whistleblower Olanrewaju Suraju

This blog has several times reported on Nigeria’s prosecution of corruption whistleblower Olanrewaju Suraju (here, here, here). His “crime:” Helping expose massive bribery in the nation’s oil sector.

Fortunately, for both Mr. Suarju and the citizens of Nigeria, Nigerian civil society is standing behind him, demanding the farcical prosecution cease. Below is the most recent show of support.

Legal Defence & Assistance Project or LEDAP, a prominent Nigerian human rights NGO denounces the prosecution and calls not only for the government to immediately drop the charges against Mr. Suraju but investigate those behind this perversion of course of justice.

LEDAP condemns the prosecution of anticorruption crusader, Mr. Olanrewaju Suraju, Calls for investigation of Mr. Suraju’s corruption allegations in the Malabu Oil Scam.

LEDAP strongly condemns the prosecution of Mr. Olanrewaju Suraju, the chairman of the Human and Environmental Development Agenda (HEDA) for his allegations of corruption against the former Attorney General of the Federation, Mohammed Adoke, in the Malabu oil block allocation scam. Mr. Suraju has consistently made public massive bribery and abuse of power against Mr. Adoke and other foreign companies, for which some are currently facing criminal charges in Italy.  Rather than investigate the allegations raised in Mr. Suraju’s many petitions, the Attorney General has elected to prosecute him, undermining the so-called anti-corruption agenda of the regime.

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South African Court Slaps Down Attack on Corruption Prosecutor

Early Wednesday a South African judge ruled that former President Jacob Zuma’s attacks on the prosecutor leading the case him were baseless and that Zuma’s trial on corruption charges proceed forthwith. Zuma had claimed prosecutor William Downer’s conduct in pursuing the case was so egregious — running the gamut from the commission of serious crimes, to breaches of ethics, to intimations of racial animus — that the charges against him must be dismissed. Or, at the least, Downer be removed from the case and trial therefore delayed indefinitely while a new prosecutor was found.  

In seeing through Zuma’s desperate attempt to derail the case, and standing up to the still powerful former president, Judge Piet Koen provided a model judges everywhere should follow.  When Zuma raised the unfounded, scurrilous attacks on the prosecutor, Koen ordered they be aired without delay.  Upon sifting through the evidence, he promptly issued a scholarly 109-page opinion finding that not one of the allegations withstood scrutiny and that there was therefore no basis to find Downer was not a fair-minded, independent prosecutor and hence no reason Zuma would not receive a fair trial if Downer remained on the case.

Today’s 61-page decision came in response to that earlier decision. Zuma had requested that the trial be halted while he appealed it.  In again a scholarly and carefully written decision, Koen knocked down the legal arguments offered in support of an appeal while reiterating the absence of any facts showing Downer guilty of misconduct or bias.

Zuma has done his best to pressure the judge into throwing out or delaying the case, with hundreds of supporters crowding into the courthouse and surrounding grounds at his every appearance to let their views be known and with some issuing not so veiled threats against the judge. Koen could have easily caved, finding merit to the claims or a way to put off the trial for months if not years.

That he did not and that he instead set the trial for this April stands in marked contrast to the way attacks on Nigerian, Zambian, and Italian prosecutors have been handled (here, here, and here). Rather than standing up for them, judges, justice ministry officials, and even fellow prosecutors stood aside after the attacks were launched with some collaborating with the attackers. If corrupt officials and their accomplices are to face justice, Judge Koen’s response must become the standard when those prosecuting them come under attack.  

Will the Nigerian Judiciary Stand Up for the Rule of Law and Dismiss the Suraju Case?

The Nigerian judiciary’s commitment to upholding the rule of law faces a decisive test this Monday, February 7. Nigerian prosecutors will present evidence to Federal High Court Justice Binta Nyakothat that anticorruption activist Olanrewaju Suraju should stand trial for violating section 24 of the Cybercrime Act 2015, the cyberstalking provision.

As explained below, the evidence in support of the charges is extraordinarily flimsy. More importantly, section 24 is no longer enforceable in Nigeria. The Community Court of Justice for the Economic Community of West African States, whose decisions bind all Nigerian courts, ruled in 2020 that the cyberstalking section was so vague and open-ended that it violated the freedom of expression provisions of the African Peoples and Human Rights Charter and hence was invalid (here). Justice Nyakothat should therefore immediately dismiss the charges against Suraju.

The only conceivable reason she might not is if she is under “extra-legal” pressure from those who stand to gain from the case being continued.

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Making Release of the CPI into Something Useful in the Fight Against Corruption

Yesterday’s release of the Corruption Perceptions Index prompted the annual, dreary, unproductive pattern of overblown press releases and gnashing of teeth. Critics cite their government’s failure to sharply increase its CPI score as an excuse for issuing press releases bashing it for failings of every kind. The teeth gnashing comes from those in governments doing their best to fight corruption and frustrated that their efforts have had no discernable impact on the score.

No part of my work helping countries curb corruption has been more frustrating than trying to explain to the media, dedicated government corruption fighters, and civil society that they should stop making such a fuss about yearly changes in CPI scores. As Matthew reiterated in yesterday’s post (for the umpteenth time), short-term comparisons are “a pointless, misleading, intellectually bankrupt exercise.” But my explanations, GAB posts, and the academic literature explaining in excruciating detail why it takes years if not decades for anticorruption reforms to affect a nation’s CPI score have all fallen on deaf ears.

Thankfully, government corruption fighters and their supporters in Nigeria have found a way to use release of the CPI to advance the fight against corruption.  As explained here, last year its Minister of Information and Culture responded to the release of the CPI with a statement describing what the government had done over the past year to prevent corruption. This year the Nigerian Civil Society Legislative Advocacy Centre, TI’s national chapter, issued a statement putting the CPI in context and highlighting reforms underway and where more needs to be done.

Most importantly, rather than using the release of the CPI to criticize the many Nigerian public servants who spend their days fighting corruption, it went out of its way to applaud them, saying:

“It is important to stress that [the CPI score] is not an assessment of Nigeria’s anti-graft agencies who are making commendable efforts in reducing (in the fight against) corruption in Nigeria despite the political interference they face.

The full text of the Advocacy Centre’s statement follows. It merits close study by all those looking for ways to transform the annual, dreary, unproductive ritual around release of the CPI into something that can help produce results in the fight against corruption.

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Has Nigeria Found A Way to Make Release of the CPI Useful?

Transparency International releases its 2021 Corruption Perceptions Index this January 25, and while many will welcome the attention it puts on corruption, for others release will mean nothing but headaches. They will spend that day and the days and perhaps weeks after trying to explain why their country’s score on the CPI has little or nothing to do with how well the country is doing in the fight against corruption.  

For regulars in the corruption battle, this is common knowledge (distilled here, here, and here).  They know the value of the CPI lies in the pressure release puts on governments to take the fight against corruption seriously – not in measuring the progress a government is making in the fight. But presidents, prime ministers, parliamentarians, and assorted national kibitzers don’t. Sporadic followers of the corruption issue, on January 25 they will read that their nation ranks worse on the CPI than some neighboring county, a rival, or Denmark, Norway, or Singapore. They will demand to know why. Or at least why efforts over the past year have not paid off in a better ranking.

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Corruption’s War on the Law

“Corruption’s War on the Law” is the headline on an article Project Syndicate just published. There former French magistrate and corruption fighter Eva Joly recounts the fate of those who have dared to confront powerful networks of corrupt officials and those who corrupt them.  Maltese investigative journalist Daphne Caruana Galizia was murdered by accomplices of those she was investigating. So was Rwandan anti-corruption lawyer Gustave Makonene. So too was Brazilian anticorruption activist Marcelo Miguel D’Elia.

After a second attempt on his life, Nuhu Ribadu, first chair of Nigeria’s Economic and Financial Crimes Commission, the country’s premier anticorruption agency, famously remarked:

“When you fight corruption, it fights back.”

In her article, Mme. Joly, who received numerous threats for investigating and ultimately convicting senior French officials for corruption, explains that violence is just one way corruption “fights back.”  The most recent head of Nigeria’s EFCC was arrested and detained on trumped up charges of corruption. Ibrahim Magu has been suspended from office pending further proceedings, proceedings unlikely to be held this century.

At the same, Nigerian anticorruption activist Lanre Suraju is, as this blog reported last week, being charged with “cyberstalking” for circulating documents from a court case that implicate associates of the current Attorney General in a the massive OPL-245 corruption scandal. This form of intimidation, which Nigerians have dubbed “lawfare,” has now been exported to Europe. Italian prosecutors are being subjected to both criminal charges and administrative action for having the nerve to prosecute one of Italy’s largest companies for foreign bribery (here).

President Biden has declared the global fight against corruption to be a national priority, and he will shortly host a democracy summit where Brazil, Italy, Malta, Nigeria, and Rwanda will be represented at the highest level. Might he remind them which side of the fight they should be on?

Letter to Nigerian Attorney General Malami from Civil Society: Stop Harassing Anticorruption Activist

Civil society organizations are poised to write Nigerian Attorney General Abubakar Malami asking he dismiss criminal charges against long-time Nigerian anticorruption activist Olanrewaju Suraju. His crime? Circulating documents implicating an associate of the Attorney General in the alleged payment of $1 billion by oil giants Royal Dutch Shell and ENI in return for rights OPL-245, Nigeria’s most lucrative offshore oil block.  

Not only is a criminal indictment for Suraju’s conduct absurd on its face, the Community Court of Justice for the Economic Community of West African States, whose decisions are binding on Nigeria, has declared the cyberstalking law under which he is being charged in violation of the African Peoples and Human Rights Charter.  

The text of the letter is below. Concerned NGOs and individuals are invited to add their names. Use the “Contact” function at the top of the page. Alternatively, letters supporting Nigerian activists’ freedom to urge that those responsible for corruption be brought to justice can be sent to Nigerian President Muhammadu Buhari through info@statehouse.gov.ng

Dear Attorney-General Abubakar Malami:

Our attention has been drawn to press reports of an indictment, approved by your office, against Olanrewaju Suraju, chair of the anti-corruption and human right group HEDA, for alleged cyberstalking.[1]

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Fighting Corruption in Nigeria’s Forestry and Fishery Industries

Although Nigeria is known mainly for oil and gas production, Nigeria’s agriculture sector, including forestry and fisheries, now accounts for over 21% of the country’s GDP. Despite the benefits of the forestry and fisheries industries to Nigeria’s development, corruption-fueled illicit activities in these sectors threaten to destabilize local communities and damage the environment. Two areas of illicit activity are of particular concern:

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