Upcoming Conference on “Populist Plutocrats: Lessons from Around the World” (Sept. 23, Harvard Law School)

On Saturday, September 23rd, Harvard Law School, in collaboration with the University of Chicago’s Stigler Center, will host a one-day conference entitled “Populist Plutocrats: Lessons from Around the World.” The conference will focus on an important and dangerous phenomenon: political leaders who successfully exploit anti-elite sentiment in order to achieve power, but who, once in office, seem primarily interested in enriching themselves, along with a relatively small circle of family members and cronies. Many Americans might find that this description accurately captures President Trump, who campaigned as a populist, but who is governing as more as a “crony capitalist” plutocrat—or, some would allege, as a quasi-kleptocrat.

Americans seeking to understand the challenges our country is now facing might do well to look abroad. After all, while Trump’s leveraging of the power of the presidency for personal enrichment—enabled by anti-elite sentiment among his supporters—may well be unprecedented in modern U.S. history, it is not, alas, unprecedented in the modern world. Indeed, while every country’s experience is different, and we must always be careful not to overstate the parallels, many other democracies have had leaders who could be described as populist plutocrats, or even populist kleptocrats, in something like the Trump mold. While such resemblances have occasionally been noted (see, for example, here, here, here, and here), but there has not yet been much of a sustained attempt to understand populist plutocracy/kleptocracy and closely related phenomena in comparative perspective. The September 23 conference will seek to initiate more sustained exploration of these issues, and will also provide an opportunity for experts from other parts of the world–who have more experience with political leaders who combine populist rhetoric with self-interested profiteering and cronyism–to offer a distinct perspective on the challenges the United States is currently facing.

The conference will feature the following panels: Continue reading

Guest Post: 43 Government Reps Walked Into a Summit…. What Next?

Maggie Murphy, Senior Global Advocacy Manager for Transparency International, contributes the following guest post:

International summits come and go, and all too often the promises made at these summits are quickly forgotten, lost in an online catacomb or otherwise hard to track. We at Transparency International are determined that the commitments made by government representatives at last May’s London Anticorruption Summit (648 total commitments by 41 of the 43 participating governments) must not slide into oblivion in this way. That’s why, as Matthew announced in a post earlier this month, we’ve gone through every single country statement and compiled all commitments into one central database, sortable by country, theme, and region. Our goal is for this database to be used by anticorruption advocates and activists to monitor what their countries have committed to, and whether and where they are making progress.

We’ve done our own preliminary analysis of the commitments, assessing the extent to which each commitment is (1) “concrete” (i.e measurable), (2) “new” (i.e., generated by the Summit), and (3) “ambitious” (according to country partners). We found that more than half of the commitments were concrete, about a third were brand new, and about a third seen to be ambitious by our country partners. That’s encouraging, and certainly better than I would have expected.

We’ve put together a more formal analysis here, including a description of how we came to our conclusions. Let me highlight some of the most interesting ones: Continue reading

Public Trust Theory: A Way Citizens Can Combat Resource Corruption?

Public trust theory derives from the sovereign’s duty to act as the guardian of certain interests for the benefit of the nation as a whole. In the United States it serves as the basis for citizen suits to vindicate environmental rights, and it has been incorporated into the African Charter on Human and Peoples’ Rights which provides in article 21 that the wealth derived from a nation’s resources is for “the exclusive interest of the people . . . [and in] no case shall a people be deprived of it.”  Could it be used by civil society to combat grand corruption in the allocation of land and natural resources?

That is the question Elmarie van der Schyff, a professor of law at South Africa’s North-West University, addresses in a new paper prepared for the Open Society Justice Initiative’s project examining how civil society can help spark more anticorruption enforcement actions.  After carefully parsing South African law governing civil suits for damages, Professor van der Schyff concludes that “public-trust theory has a supportive role to play” in helping South Africans recover damages for injuries sustained when corruption infects the distribution or use of the nation’s natural resources.  Her thoughtful analysis shows how citizens of other states can use the principles that underlie the public trust doctrine to bring damage actions too.

Professor van der Schyff’s paper is the sixth 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, and v) damages for bribery under American law by this writer.

London Anticorruption Summit–Country Commitment Scorecard, Part 2

This post is the second half of my attempt to summarize the commitments (or lack thereof) in the country statements of the 41 countries that attended last week’s London Anticorruption Summit, in four areas highlighted by the Summit’s final Communique:

  1. Increasing access to information on the true beneficial owners of companies, and possibly other legal entities, perhaps through central registers;
  2. Increasing transparency in public procurement;
  3. Strengthening the independence and capacity of national audit institutions, and publicizing audit results (and, more generally, increasing fiscal transparency in other ways); and
  4. Encouraging whistleblowers, strengthening their protection from various forms or retaliation, and developing systems to ensure that law enforcement takes prompt action in response to whistleblower complaints.

These are not the only subjects covered by the Communique and discussed in the country statements. (Other topics include improving asset recovery mechanisms, facilitating more international cooperation and information sharing, joining new initiatives to fight corruption in sports, improving transparency in the extractive sector through initiatives like the Extractive Industries Transparency Initiative, additional measures to fight tax evasion, and several others.) I chose these four partly because they seemed to me of particular importance, and partly because the Communique’s discussion of these four areas seemed particularly focused on prompting substantive legal changes, rather than general improvements in existing mechanisms.

Plenty of others have already provided useful comprehensive assessments of what the country commitments did and did not achieve. My hope is that presenting the results of the rather tedious exercise of going through each country statement one by one for the language on these four issues, and presenting the results in summary form, will be helpful to others out there who want to try to get a sense of how the individual country commitments do or don’t match up against the recommendations in the Communique. My last post covered Afghanistan–Malta; today’s post covers the remaining country statements, Mexico–United States: Continue reading

Jacob Zuma Violated the Constitution. Now What?

It’s hard to imagine a court decision more dramatic than the South African Constitutional Court’s March 31 ruling on President Jacob Zuma’s misuse of public funds at his private home in Nkandla. In powerful language that sometimes verged on purple prose, the ConCourt announced that the Public Protector, the constitutionally-created institution charged with investigating improper government conduct, is the “embodiment of a biblical David, … who fights the most powerful and very well-resourced Goliath[:]  impropriety and corruption by government officials.” In order for the Public Protector to effectively serve that function, the ConCourt decided, the remedial action she recommends must be binding. By failing to follow her prescribed remedial action, which included paying back a “reasonable percentage” of the misused funds, Zuma had failed in his “obligation[] to uphold, defend and respect the Constitution.”

However, the scene in the National Assembly, South Africa’s lower (and more important) house of Parliament, on May 4 was equally dramatic—though much less dignified. With President Zuma scheduled to make his first appearance before the National Assembly since the Nkandla judgment–and with the reopening of a different judgment by a lower court that could lead to the investigation into another corruption-related incident–the opposition Economic Freedom Fighters (EFF) party demanded that he not be allowed to speak since he was clearly “illegitimate.” EFF members and the Speaker of the National Assembly got into a “screaming match,” which eventually escalated into a fight. As Parliamentary protection service officers forcibly removed the EFF from the legislature, the EFF members continued to shout insults and declare that it was the President, not they, that should be forced to leave. The day also involved the ruling African National Congress (ANC), Zuma’s party, ruling that any quotations from the Nkandla judgment during the legislative session were out of order, and the Democratic Alliance (DA), the primary opposition party, mocking Zuma and calling him the “looter in chief.” Putting a punctuation mark on this fracas was a five-day ban on the EFF’s National Assembly representatives and a decision by the remaining opposition parties to boycott the National Assembly the following day.

The ConCourt’s ruling, though, is far more than just a prompt for an exciting 24 hours in the National Assembly.  Looking further down the road, what does the Nkandla judgment mean for South Africa?

Continue reading

Why Hasn’t Jacob Zuma’s Latest Anti-Anticorruption Effort Succeeded Yet?

Any time South African President Jacob Zuma is involved in something, it’s easy to jump to the conclusion that corruption will somehow be involved as well. That’s particularly true in relation to the tension between him and Finance Minister Pravin Gordhan. This tension has recently manifested itself through a fractious battle, often via proxies, over decades-old happenings in the South African Revenue Service (SARS), an institution of which Gordhan used to be the head.

The attack upon Gordhan is largely motivated by concerns that he has the power and willingness to cut off some of Zuma’s corrupt lines of patronage. So far, nothing new: Zuma has a history of going after anyone who he perceives as threatening the network of graft which he’s woven. What’s particularly noteworthy this time, though, is that he’s facing some difficulty getting Gordhan out of his way—and that difficulty might hint at some hope for anticorruption advocates.

Continue reading

You Can’t Go Home Again: A Surprising Concession from South Africa’s President

“Nkandlagate” has been the gift that keeps on giving for South Africa’s satirists and social media quipsters. It started with the scandal itself: Jacob Zuma, the country’s president, spent at least 256 million rand (what was then more than US$30 million) in public funds to install a swimming pool, amphitheater, chicken run, and cattle corral at his private home, called Nkandla. When the expenditures were revealed, he claimed they were “security upgrades.” After all, the most natural way to ensure you have enough water on hand to put out a fire is to install a swimming pool, right? Political cartoonists and puppet-starring TV shows alike have weighed in on Zuma’s recalcitrance in the face of Public Protector Thuli Madonsela’s report demanding that Zuma pay back some of the misused funds.

The jokes are understandable: after years of living with the consequences of an infamous arms deal–the “original sin” that “infected [the country’s] politics” with corruption when the lack of consequences for its high-level participants fostered a sense of impunity–many South Africans have turned to dark comedy as a form of release.

The need for that type of gallows humor may have dipped slightly earlier this month.  President Zuma, after refusing for years to admit he’d done anything wrong and publicly mocking the outcry about Nkandla, finally conceded to the country’s highest court that he should have obeyed the findings of Madonsela’s report. Rather than insisting that President Zuma did nothing illegal, his defense team is now arguing that the president made a mere “mistake of law.”  What explains this stunning reversal? And what will the implications be?

Continue reading