tag:theconversation.com,2011:/fr/topics/bribery-288/articles
Bribery – The Conversation
2024-03-13T12:06:02Z
tag:theconversation.com,2011:article/224170
2024-03-13T12:06:02Z
2024-03-13T12:06:02Z
Corrupt, brutal and unprofessional? Africa-wide survey of police finds diverging patterns
<p>Africans generally have a low regard for the quality of policing on the continent. Perceptions of police misconduct, corruption and brutality are widespread, according to a new survey by <a href="https://www.afrobarometer.org/">Afrobarometer</a>. The independent research network surveyed 39 countries between 2021 and 2023. </p>
<p>Our survey offers <a href="https://www.afrobarometer.org/wp-content/uploads/2024/01/PP90-PAP6-Africans-cite-corruption-and-lack-of-professionalism-among-police-failings-Afrobarometer-26jan24.pdf">new evidence</a> of how Africans experience and assess their police. It shows people often have to contend with demands for bribes from police officers. But assessments varied by country: in some, police were said to be helpful.</p>
<p>Afrobarometer currently surveys 39 of Africa’s <a href="https://au.int/en/member_states/countryprofiles2#">55 countries</a>.</p>
<p>As researchers at Afrobarometer, we have published on <a href="https://www.afrobarometer.org/publication/pp88-brutality-and-corruption-undermine-trust-in-ugandas-police-can-damage-be-undone/">police professionalism</a> and other <a href="https://www.afrobarometer.org/publication/pp37-are-africans-willing-pay-higher-taxes-or-user-fees-better-health-care/">government institutions</a> for several years. </p>
<p>Our analysis also reveals that negative perceptions of police professionalism and corruption go hand in hand with low public trust in the police, poor marks on government performance, and citizens’ sense of insecurity.</p>
<h2>Encounters with police</h2>
<p>While some citizens seek assistance from the police (to report a crime, for example), others might only encounter the police in less voluntary situations, such as at a checkpoint or traffic stop or during an investigation. Across the 39-country sample, only 13% of respondents said they had requested police assistance during the previous 12 months. Three times as many (40%) reported encountering the police in other situations.</p>
<p>Among respondents who asked for police assistance, more than half (54%) said it had been easy to get the help they needed. More than three-fourths found it easy in Burkina Faso (77%) and Mauritius (76%), though no more than half as many said the same in Malawi (37%), Madagascar (37%) and Sudan (33%). </p>
<p>Many respondents reported a police practice that was less than helpful: stopping drivers on the road without a valid reason. On average, 39% of Africans said the police “often” or “always” stopped drivers without good reason, in addition to 26% who said they “sometimes” did so (Figure 1). The practice is particularly widespread in Gabon (68% often/always) and Kenya (66%). In contrast, fewer than one in five respondents in Ethiopia (18%), Cabo Verde (16%) and Benin (16%) had this complaint.</p>
<p>Both seeking police assistance and being stopped on the road may be a prelude to being asked for money. Among respondents who said they had asked for police assistance during the previous year, 36% said they had had to pay a bribe, give a gift or do a favour to get the help they needed (Figure 2). This proportion reached astonishing levels in Liberia (78%), Nigeria (75%), Sierra Leone (72%) and Uganda (71%).</p>
<p>Similarly, among citizens who encountered the police in other situations, 37% said they had to pay a bribe to avoid a problem. Liberia (70%) again ranked worst, joined by Guinea (66%), Congo-Brazzaville (65%) and Uganda (64%).
Seychelles and Cabo Verde performed best on both counts (1%-4%).</p>
<p>Considering how many Africans personally experience having to bribe the police, it may not be surprising that on average across 39 countries, the police were more widely seen as corrupt than civil servants, officials in the presidency, or any other public institutions or leaders the surveys asked about. Almost half (46%) of respondents said that “most” or “all” police officials were corrupt.</p>
<h2>Police brutality</h2>
<p>One of the harshest criticisms levelled against some police officers was that they used excessive force in their interactions with the people they were meant to serve and protect. </p>
<p>As Figure 3 shows, almost four in 10 respondents (38%) said the police “often” or “always” used excessive force in managing protests or demonstrations. Another 27% said they “sometimes” did so. Only 29% said the police were “rarely” or “never” guilty of brutality in their handling of protesters. The perception of frequent police brutality against protesters was most common in Gabon (64% often/always) and was widespread in some countries that are scheduled to have national elections this year, including <a href="https://www.reuters.com/world/africa/three-dead-senegal-protests-over-delayed-presidential-election-2024-02-11/">Senegal</a> (60%), Guinea (51%) and Tunisia (45%).</p>
<h2>Police professionalism</h2>
<p>Do these popular perceptions add up to a police force that is seen as professional?</p>
<p>Only one-third (32%) of respondents said the police in their countries “often” or “always” operated in a professional manner and respected the rights of all citizens, while 32% said they “sometimes” and 34% said they “rarely” or “never” did (Figure 4).</p>
<p>In just five countries did more than half of the respondents think their police usually acted professionally: Burkina Faso (58%), Morocco (57%), Niger (55%), Benin (54%) and Mali (54%). Senegal ranked sixth, at just 50%. Fewer than one in five respondents saw police as usually professional in Sierra Leone (19%), Eswatini (19%), Kenya (18%), Congo-Brazzaville (17%) and Nigeria (13%).</p>
<h2>Significance of findings</h2>
<p>These findings raise questions about the quality of policing on the African continent, highlighting notably negative experiences and evaluations of the police in many – but not all – countries. For example, in Burkina Faso, Morocco and Benin, police scored relatively well across multiple performance indicators. </p>
<p>More broadly, our findings point to broad cross-country patterns of how police professionalism, integrity and respectful conduct are correlated with more positive citizen attitudes towards the police. </p>
<p>African governments looking to change the unfavourable public perceptions of the police – and of government performance in the fight against crime – might take a closer look at which dimensions of police performance matter in their country, and which better-performing police forces might have solutions to share.</p>
<p><em>All graphics have been redacted from showing 39 countries to 10 because of space constraints.</em></p><img src="https://counter.theconversation.com/content/224170/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dr. Matthias Krönke works for Afrobarometer. </span></em></p><p class="fine-print"><em><span>Dr. Thomas Isbell works in International Development Cooperation. He is affiliated with Afrobarometer. </span></em></p><p class="fine-print"><em><span>Makanga Ronald Kakumba is a researcher in the Afrobarometer Analysis Unit. He is affiliated with Uhasselt University. </span></em></p>
Negative perceptions of police professionalism and corruption go hand in hand with low public trust in the police, poor marks on government performance, and citizens’ sense of insecurity.
Matthias Krönke, Researcher, University of Cape Town
Thomas Isbell, Consultant, University of Cape Town
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/216671
2023-11-09T14:08:42Z
2023-11-09T14:08:42Z
Ghanaians don’t trust the police. A criminologist on what needs to be done about it
<p><em>The relationship between Ghanaian citizens and officers of its police service is a tenuous one. Recent <a href="https://www.afrobarometer.org/survey-resource/ghana-round-9-data-2023/">reports</a> by the research network Afrobarometer show a decline in trust between citizens and officers amid complaints of harassment and bribery. There have also been <a href="https://www.aljazeera.com/features/2023/9/22/ghana-police-arrest-49-as-high-cost-of-living-triggers-street-protests">accusations</a> of the police being used by the political hierarchy to stifle dissent by force during protests. The Conversation’s Godfred Akoto Boafo speaks to criminologist <a href="https://theconversation.com/profiles/justice-tankebe-579992">Justice Tankebe</a> about the reasons behind the breakdown in trust and ways to improve it.</em></p>
<h2>Do Ghana’s police serve the interests of citizens?</h2>
<p>We can think of these interests in terms of people’s expectations of policing. My <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1745-9125.2012.00291.x?casa_token=INNkhWFO_ZcAAAAA:2fK2oO-IL0kjTq80ptljt3OkL6FHzWX107uJKb5n36mWULN5Qv1oZeLZ-rpssekYoWmQPT76YeabH-g">research</a> has identified four dimensions of these interests. </p>
<p>First is the effective use of police authority to protect citizens from violence and threats to their constitutional rights. Fear of crime is a reasonable indication of police effectiveness. Data from <a href="https://www.afrobarometer.org/countries/ghana/">Afrobarometer</a> shows that, in <a href="https://www.afrobarometer.org/wp-content/uploads/2022/02/AfropaperNo34.pdf">2002</a>, 16.8% of Ghanaians feared becoming victims of crime at their homes. This declined to 9.2% in 2012 but has now <a href="https://www.afrobarometer.org/survey-resource/ghana-round-9-data-2023/">risen</a> to 24.6%. </p>
<p>The second dimension is lawful police conduct. Police officers do not serve this interest when they engage in illegal practices such as robbery, unlawful killing of civilians or bribery. A recent <a href="https://www.unodc.org/documents/corruption/Publications/2022/GHANA_-_Corruption_survey_report_-_20.07.2022.pdf">survey</a> funded by the United Nations Office on Drugs and Crime showed that 53.2% of Ghanaians who interacted with police officers paid them a bribe. </p>
<p>Thirdly, policing serves the interests of Ghanaians when it treats people equally. Simply put, people’s social class, ethnicity, religious beliefs, or political affiliation should not influence the decisions of police officers. </p>
<p>Finally, policing must listen to citizens, explain decisions to them, treat them with respect and care for their wellbeing. Fair treatment communicates symbolic messages about a person’s social standing and inclusion; hence it matters greatly to citizens. A <a href="https://www.tandfonline.com/doi/abs/10.1080/10439463.2019.1636795?casa_token=lLDS6YkQKysAAAAA%3AXkzh0nvzEzSoWaqE7EbUwgVceZH8ko9DjBZmrUw2j8DR5-WzOG9T3YNFE0K2vM7jhax0bria8B2e">survey</a> of Ghanaians shows a little over half of them think the police treat them fairly. </p>
<h2>Why are the police struggling to serve Ghanaians?</h2>
<p>The first reason is the colonial roots of the Ghanaian police, which continue to show in three ways:</p>
<ul>
<li><p>police officers expect people to accept decisions without question </p></li>
<li><p>officers are subservient to elites, who have undue influence on police work</p></li>
<li><p>the police are not sufficiently accountable to local communities. </p></li>
</ul>
<p>Some officers try to curry favour with politicians in the hope of future advantages such as promotions. This is exemplified in the leaked audio of an <a href="https://citinewsroom.com/2023/10/leaked-tape-ill-be-vindicated-after-parliamentary-committee-probe-cop-mensah/">alleged plot</a> to replace Ghana’s police chief, which is now the subject of a parliamentary investigation. </p>
<p>Beyond the colonial legacy, <a href="https://www.ghanaweb.com/GhanaHomePage/NewsArchive/I-have-sent-over-1-000-people-from-my-constituency-to-security-agencies-govt-companies-Kennedy-Agyapong-1086103">political interference</a> means there’s a risk of unsuitable people being recruited to the police. They may lack the appropriate motivation and ethical inclination. The adequacy of training and the quality of supervision are also doubtful. The absence of credible accountability structures also limits scrutiny of how officers behave. </p>
<p>Finally, the behaviours that supervisors model to frontline officers can affect how they interact with citizens. For example, a <a href="https://journals.sagepub.com/doi/abs/10.1177/1748895812469380?casa_token=hJs2udKv6gUAAAAA%3Aq5AyvRoxyV6LETdlVElSm3QorxqtSKpB1-_p5C1-xfiLdr6e_oZZvhRNrjD4ZPwg34ruqxO-bNTE&journalCode=crjb">survey</a> found that officers who felt their superiors treated them with disrespect and partiality were less committed to fair treatment of the public. </p>
<h2>What are the consequences for democracy?</h2>
<p>Police scholar David Bayley has <a href="https://www.jstor.org/stable/3054129">argued</a> that the quality of policing is an important measure of democratic governance. A country cannot claim to be democratic if the police arbitrarily arrest people, humiliate them, suppress political dissent, and exceed their legal mandate.</p>
<p>When citizens lose faith in democracy, they become tolerant of military interventions. So efforts at democratic consolidation must pay attention to the state of the police. Indeed, some scholars argue that this may help <a href="https://books.google.co.uk/books?hl=en&lr=&id=sInqr5ILPE8C&oi=fnd&pg=PR9&ots=_GhR888aCk&sig=K1cbO5_d9JgjsBbg_Cve6QBhw1Q&redir_esc=y#v=onepage&q=internal%20security&f=false">save democracy</a> from the threat of the military taking control. </p>
<p>This matters greatly in a sub-region of increasing political instability and terrorism threat. </p>
<h2>What reforms are required?</h2>
<p>First, there is a need for ideological re-orientation. The Ghana police <a href="https://police.gov.gh/en/index.php/mandate/">say</a> their mandate is to “prevent and detect crime, to apprehend offenders and to maintain public order and safety of persons and properties”. This is indistinguishable from their colonial mandate. Unsurprisingly, police tactics are militaristic and prioritise order over the democratic rights of citizens. </p>
<p>A democratically oriented police service would view its mandate as creating conditions for citizens to enjoy their constitutional rights. It would ask: “how can we facilitate protests and protect protesters?” rather than “what reasons can we find to prevent a protest?”.</p>
<p>The second area for reform is police accountability. Ghanaians have limited information about the internal accountability mechanisms, such as what happens to complaints filed against police officers. <a href="https://www.bloomsbury.com/uk/criminology-as-a-moral-science-9781509965342/">Research evidence</a> shows the lack of appropriate signals from the Ghana Police Service deters officers from reporting unethical colleagues.</p>
<p>As I have previously <a href="https://theconversation.com/what-drives-police-violence-in-ghana-and-what-can-be-done-about-it-105813">argued</a>, the Ghana Police Service needs independent democratic oversight. </p>
<p>Thirdly, reforms are required to insulate the police from political capture. Ghana’s constitution grants the president the right to appoint the police chief. The president also effectively controls the promotion of senior officers through the police council. The same processes as those used in recruitment into civil service should be considered. Yet this is unlikely to make a difference unless police officers are fully committed to their democratic mandate. They must maintain ethical relationships with politicians and other elites who seek to capture the state for their personal interests. </p>
<p>Finally, there is a need to develop a culture of <a href="https://www.journals.uchicago.edu/doi/10.1086/670819">evidence-based policing</a>. This requires a closer relationship between the police and academics who have the methodological tools to support the police in evaluating the effects of their interventions.</p><img src="https://counter.theconversation.com/content/216671/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Justice Tankebe does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The very low public trust in the Ghanaian police suggests a crisis of legitimacy.
Justice Tankebe, Associate Professor of Criminology, University of Cambridge
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/213841
2023-11-01T20:32:36Z
2023-11-01T20:32:36Z
Canada needs to move beyond poorly enforced bribery laws and tackle corruption’s root causes
<iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/canada-needs-to-move-beyond-poorly-enforced-bribery-laws-and-tackle-corruptions-root-causes" width="100%" height="400"></iframe>
<p>Canada’s enforcement of laws against foreign bribery is weak, according to <a href="https://www.oecd.org/corruption/canada-must-boost-its-efforts-to-fight-foreign-bribery-says-the-oecd-working-group-on-bribery.htm">a recent report from the Organization for Economic Co-operation and Development</a> (OECD). </p>
<p>A working group from the OECD has found that, in the nearly 25 years since Canada passed the <a href="https://laws-lois.justice.gc.ca/eng/acts/c-45.2">Corruption of Foreign Public Officials Act</a> and <a href="https://www.oecd.org/corruption/oecdantibriberyconvention.htm">signed onto the OECD Anti-Bribery Convention</a>, only two people have been convicted of foreign bribery and four companies have been sanctioned.</p>
<p>Corruption is a serious issue and a very costly threat to Canada’s foreign trade and international reputation. Although there are no reliable statistics on the exact amounts lost to global corruption, <a href="https://www.un.org/press/en/2018/sc13493.doc.htm">estimates range in the trillions of dollars</a>. The OECD said Canada must do more to deter foreign bribery and other corruption offences. </p>
<p>Our recent research sheds light on both Canada’s slow rate of progress in combating corruption and the OECD’s failure to get to the root causes of corruption.</p>
<h2>SNC-Lavalin controversy</h2>
<p>In the past, Canada has had difficulty passing and enforcing laws against powerful multinational corporations. Nowhere is this more clear than in the SNC-Lavalin controversy.</p>
<p>In 2018, Parliament <a href="https://laws-lois.justice.gc.ca/eng/acts/c-46/section-715.32.html">added remediation agreements to the Criminal Code of Canada</a> in a budget bill. These agreements offer a new way to settle criminal charges for crimes like corruption. Unlike plea bargains, they provide a means to resolve cases without convictions. This mitigates the negative effects on those not involved in crime, like employees and pensioners, while still imposing consequences.</p>
<p>Remediation agreements attracted little attention until news broke that Kathleen Roussel, the head of the Public Prosecution Service of Canada, <a href="https://www.cbc.ca/news/politics/snc-lavalin-federal-court-appeal-1.5086604">refused to invite engineering and construction giant SNC-Lavalin to negotiate such an agreement</a> in 2018.</p>
<p>SNC-Lavalin had hoped to use a remediation agreement to settle criminal charges relating to a <a href="https://www.cbc.ca/news/canada/montreal/snc-lavalin-trading-court-libya-charges-1.5400542">multi-year scheme of foreign bribery and corruption</a> in obtaining government contracts in Libya. It made no secret of being unhappy with the decision of prosecutors, <a href="https://www.canlii.org/en/ca/fct/doc/2019/2019fc282/2019fc282.html">which it tried unsuccessfully to challenge in court</a>.</p>
<p>A few months later, another political scandal erupted when the media reported Prime Minister Justin Trudeau and his staff had <a href="https://theconversation.com/saying-no-to-power-the-resignations-of-women-cabinet-members-112693">pressured then-attorney general Jody Wilson-Raybould to overrule Roussel’s decision</a>, leading to Wilson-Raybould’s resignation. It was later determined <a href="https://ciec-ccie.parl.gc.ca/en/investigations-enquetes/Pages/TrudeauIIReport-RapportTrudeauII.aspx">the prime minister’s actions violated the Conflict of Interest Act</a>.</p>
<h2>The state of affairs</h2>
<p>In 2022, we conducted a survey asking how lawyers, consultants, government officials and academics felt about the state of anti-corruption laws in Canada. We asked their opinions on what corruption is, what acts are most serious, what countries are most corrupt and what remedies they would recommend. </p>
<p>The majority of participants accepted the standard legal definition of corruption, which involves bribery offered by a private agent to a public official.</p>
<p>While acknowledging the existence of corruption in Canada, participants believed it was most severe and widespread in non-western or developing nations, and less prevalent among fellow middle-class professionals. While toxic corporate cultures were identified as contributing to corruption, weak individuals were seen as the primary issue rather than built-in incentives to maximize profit.</p>
<p>They all criticized the federal government’s enforcement record but saw the introduction of the <a href="https://www.canada.ca/en/innovation-science-economic-development/news/2023/03/government-of-canada-tables-new-legislation-to-create-a-beneficial-ownership-registry.html">Beneficial Ownership Registries in the 2023 budget</a> as promising if enforced. This registry requires companies to reveal the true owners behind shell companies.</p>
<p>One corruption professional said:</p>
<blockquote>
<p>“There is no central government agency that is responsible to co-ordinate corruption at the federal level. It is a patchwork or Swiss cheese [model] with lots of holes in it. The federal government needs…to develop a national anti-corruption policy.”</p>
</blockquote>
<p>Another corruption professional said:</p>
<blockquote>
<p>“Sentences are not enforced and the criminal system is not up to date to deal with long and complex corruption cases…police agencies must possess sufficient tools to battle corruption in an efficient manner.”</p>
</blockquote>
<p>These findings reflect what we already know. Laws that sanction the crimes of the powerful are often poorly drafted and there are insufficient resources to ensure proper enforcement. Too many are willing to break the rules because they know governments will do little about it.</p>
<h2>Neoliberalism and corruption</h2>
<p>Our findings reveal that current anti-corruption efforts and debates often mask the role globalization plays in enabling corporate misconduct. The prevailing belief is that minimal government regulation is a good thing, as exemplified by <a href="https://www.canada.ca/en/government/system/laws/developing-improving-federal-regulations/modernizing-regulations/red-tape-reduction-act.html">Canada’s “one-for-one” rule</a> that dictates if a new regulation is introduced, an existing one must be removed.</p>
<p>The role globalization plays in corruption, which originally led to demands for new laws in the first place, often gets lost in endless technocratic discussions about what laws are most effective for catching corporate cheats. This includes the OECD’s convention and their evaluations of Canada’s anti-bribery efforts.<br>
In the 1980s, <a href="https://theconversation.com/what-exactly-is-neoliberalism-84755">neoliberal economic doctrines</a> swept through capitalist nations worldwide. Their central message was that maximum efficiency and productivity required that corporations be freed from government interference. </p>
<p>What followed was a period of unchecked globalization and massive privatization of public sector operations. Regulations were removed, regulatory agencies were downsized and funding was cut. Tariffs and currency restrictions were jettisoned, allowing corporations to expand their operations globally. </p>
<p>The surge in globalized free trade created mammoth increases in corporate wealth, size and power, and corresponding increases in inequality within and across nations. Many transnational corporations now have <a href="https://www.visualcapitalist.com/the-tech-giants-worth-compared-economies-countries">annual sales and profits greater than the GDP of nations</a>.</p>
<h2>Lasting effects of deregulation</h2>
<p>The <a href="https://www.theguardian.com/books/2016/apr/15/neoliberalism-ideology-problem-george-monbiot">impact of neoliberal policies has been profound</a>. The destruction of regulation, regulatory agencies and regulatory agents through downsizing, defunding and deregulation removed many of those responsible for passing and enforcing laws punishing corporate wrongdoing. While deregulation in the United States <a href="https://www.econlib.org/library/Enc/Reaganomics.html">started with the election of Ronald Reagan</a> in 1980, <a href="https://www.politico.com/sory/2017/01/trump-signs-executive-order-requiring-that-for-every-one-new-regulation-two-must-be-revoked-234365">Donald Trump carried it to an extreme</a>. </p>
<p>While successive Canadian governments have never directly copied their U.S. counterparts, we, too, have witnessed the <a href="https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/canlemj21&section=17">negative outcomes associated with globalization</a>.</p>
<p>Because multinational corporations have been allowed to grow so large and powerful, and are now so central to our economic and cultural lives, governments lack the ability to curb or punish their unlawful acts. As the SNC-Lavalin debacle illustrated, our governments frequently lack the motivation to do so as well.</p>
<p>Given all this, serious action against corruption, in Canada and abroad, must include moving beyond the narrow and reactive confines of bribery law and policy, as espoused by the OECD and woefully mishandled by the Canadian government, to confront the harms associated with globalization and bring multinational corporations under democratic control.</p><img src="https://counter.theconversation.com/content/213841/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Laureen Snider receives funding from the Social Sciences and Humanities Research Council of Canada.</span></em></p><p class="fine-print"><em><span>Jennifer Quaid holds research grants from the Social Sciences and Humanities Research Council of Canada. She is a member of Transparency International Canada and the chair of its Legal Committee. She is also a Senior Fellow at the Centre for International Governance Innovation (CIGI). </span></em></p><p class="fine-print"><em><span>Jon Frauley receives funding from the Social Sciences and Humanities Research Council of Canada.</span></em></p><p class="fine-print"><em><span>Steven Bittle receives funding from the Social Sciences and Humanities Research Council of Canada. </span></em></p>
If Canada wants to fix its reputation for being weak on corruption, it needs to confront the harms associated with globalization and bring multinational corporations under democratic control.
Laureen Snider, Professor Emerita, Department of Sociology, Queen's University, Ontario
Jennifer Quaid, Associate Professor & Vice-Dean Research, Civil Law Section, Faculty of Law, L’Université d’Ottawa/University of Ottawa
Jon Frauley, Professor of Criminology, L’Université d’Ottawa/University of Ottawa
Steven Bittle, Professor, Department of Criminology, L’Université d’Ottawa/University of Ottawa
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/214225
2023-09-24T18:24:50Z
2023-09-24T18:24:50Z
Menendez indictment looks bad, but there are defenses he can make
<figure><img src="https://images.theconversation.com/files/549871/original/file-20230924-21-ath6uu.jpeg?ixlib=rb-1.1.0&rect=5%2C0%2C1985%2C1326&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Senate Foreign Relations Committee Chairman Sen. Bob Menendez, D-N.J., and his wife, Nadine Arslanian Menendez.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/MenendezBriberyDeveloper/4219da16c3724960a83927459e24e8ef/photo?Query=Menendez&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=5321&currentItemNo=4">AP Photo/Susan Walsh, File</a></span></figcaption></figure><p><em>Reactions came quickly to the <a href="https://www.nytimes.com/interactive/2023/09/22/nyregion/menendez-indictment-document.html">federal indictment</a> on Sept. 22, 2023, of New Jersey’s senior U.S. senator, Democrat Bob Menendez. New Jersey Gov. Phil Murphy joined other state Democrats <a href="https://www.politico.com/news/2023/09/22/new-jersey-democrats-menendez-indictment-00117693">in urging Menendez to resign</a>, saying, “The alleged facts are so serious that they compromise the ability of Senator Menendez to effectively represent the people of our state.”</em></p>
<p><em>The <a href="https://www.justice.gov/usao-sdny/pr/us-senator-robert-menendez-his-wife-and-three-new-jersey-businessmen-charged-bribery">indictment charged Menendez</a>, “his wife NADINE MENENDEZ, a/k/a ‘Nadine Arslanian,’ and three New Jersey businessmen, WAEL HANA, a/k/a ‘Will Hana,’ JOSE URIBE, and FRED DAIBES, with participating in a years-long bribery scheme … in exchange for MENENDEZ’s agreement to use his official position to protect and enrich them and to benefit the Government of Egypt.” Menendez said he believed the case would be “successfully resolved once <a href="https://rollcall.com/?p=727870">all of the facts are presented</a>,” but he stepped down temporarily as chairman of the Senate’s influential Committee on Foreign Relations.</em> </p>
<p><em>The Conversation’s senior politics and democracy editor, Naomi Schalit, interviewed longtime Washington lawyer and Penn State Dickinson Law professor Stanley M. Brand, who has served <a href="https://pennstatelaw.psu.edu/faculty/brand">as general counsel for the House of Representatives</a> and is a prominent white-collar defense attorney, and asked him to explain the indictment – and the outlook for Menendez both legally and politically.</em></p>
<p><strong>What did you think when you first read this indictment?</strong></p>
<p>As an old pal once told me, “even a thin pancake has two sides.”</p>
<p>Reading the criminal indictment in a case for the first time often produces a startled reaction to the government’s case. But as my over 40 years of experience <a href="https://pennstatelaw.psu.edu/faculty/brand">defending public corruption cases and teaching criminal law</a> have taught me, there are usually issues presented by an indictment that can be challenged by the defense. </p>
<p>In addition, as judges routinely instruct juries in these cases, the indictment is not evidence and the jury may not rely on it to draw any conclusions. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/549872/original/file-20230924-21-2fp318.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a suit pointing at a poster board with various photos on it." src="https://images.theconversation.com/files/549872/original/file-20230924-21-2fp318.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/549872/original/file-20230924-21-2fp318.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/549872/original/file-20230924-21-2fp318.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/549872/original/file-20230924-21-2fp318.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/549872/original/file-20230924-21-2fp318.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/549872/original/file-20230924-21-2fp318.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/549872/original/file-20230924-21-2fp318.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Damian Williams, U.S. attorney for the Southern District of New York, speaks during a news conference on Sept. 22, 2023, after announcing the Menendez indictment.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/damian-williams-u-s-attorney-for-the-southern-district-of-news-photo/1695609428?adppopup=true">Alexi J. Rosenfeld/Getty Images</a></span>
</figcaption>
</figure>
<p><strong>The average reader will look at the indictment and say, “These guys are toast.” But are there ways Menendez can defend himself?</strong></p>
<p>There are a number of complex issues presented by these charges that could be argued by the defense in court. </p>
<p>First, while the indictment charges a conspiracy to commit bribery, it does not charge the substantive crime of bribery itself. This may suggest that the government lacks what it believes is direct evidence of a quid pro quo – “this for that” – between Menendez and the alleged bribers. </p>
<p>There is evidence of conversations and texts that coyly and perhaps purposely avoid explicit acknowledgment of a corrupt agreement – for instance, “On or about January 24, 2022, DAIBES’s Driver exchanged two brief calls with NADINE MENENDEZ. NADINE MENENDEZ then texted DAIBES, writing, ‘Thank you. Christmas in January.’” </p>
<p>The government will argue that this reflects acknowledgment of a connection between official action and delivery of cash to Sen. Menendez, even though it is a less-than-express statement of the connection. </p>
<p>Speaking in this kind of code may not fully absolve the defendants, but the government must prove the defendants’ intent to carry out a corrupt agreement beyond a reasonable doubt – and juries sometimes want to see more than innuendo before convicting.</p>
<p>The government has also charged <a href="https://www.law.cornell.edu/uscode/text/18/1346">a crime called</a> “<a href="https://sgp.fas.org/crs/misc/R45479.pdf">honest services fraud</a>” – essentially, a crime involving a public official putting their own financial interest above the public interest in their otherwise honest and faithful performance of their duties.</p>
<p>The alleged failure of Menendez to list the gifts, as required, on his Senate financial disclosure forms will be cited by prosecutors as evidence of “consciousness of guilt” – an attempt to conceal the transactions. </p>
<p>However, under <a href="https://www.scotusblog.com/case-files/cases/mcdonnell-v-united-states/">a recent Supreme Court case</a> involving former <a href="https://theconversation.com/state-prosecutors-and-voters-not-the-feds-can-hold-corrupt-officials-accountable-138385">Gov. Bob McDonnell of Virginia for similar crimes</a>, the definition of “<a href="https://theconversation.com/its-getting-harder-to-prosecute-politicians-for-corruption-91609">official acts</a>” under the bribery statute has been narrowly defined to mean only formal decisions or proceedings. That definition does not include less-formal actions like those performed by Menendez, such as meetings with Egyptian military officials. </p>
<p>The Supreme Court rejected an interpretation of official acts that included arranging meetings with state officials and hosting events at the governor’s mansion, or promoting a private businessman’s products at such events. </p>
<p>When it comes time for the judge to instruct the jury at the end of the trial, Menendez may well be able to argue that much of what he did in fact did not constitute “official acts” and therefore are not illegal under the bribery statute. </p>
<p><strong>This case involves alleged favors done for a foreign country in exchange for money. Does that change this case from simple bribery to something more serious?</strong></p>
<p>The issue of foreign military sales to Egypt may also present a constitutional obstacle to the government. </p>
<p>The indictment specifically cites Menendez’s role as <a href="https://www.politico.com/news/2023/09/22/menendez-steps-down-foreign-relations-committee-00117622">chairman of the Senate Foreign Relations Committee</a> and actions he took in that role in releasing holds on certain military sales to Egypt and letters to his colleagues on that issue. The Constitution’s <a href="https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1">speech or debate clause</a> <a href="https://fas.org/sgp/crs/misc/R45043.pdf">protects members from</a> <a href="https://theconversation.com/doj-drops-investigation-into-three-senators-for-insider-trading-burr-probe-continues-134875">liability or questioning</a> when undertaking actions within the “legitimate legislative sphere” – which undoubtedly includes these functions. </p>
<p>While this will not likely be a defense to all the allegations, it could require paring the allegations related to this conduct. That would whittle away at a pillar of the government’s attempt to show Menendez had committed abuse of office. </p>
<p>In fact, when the government has charged members of Congress with various forms of corruption, <a href="https://theconversation.com/state-prosecutors-and-voters-not-the-feds-can-hold-corrupt-officials-accountable-138385">courts have rejected</a> any reference to their membership on congressional committees as evidence against them. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/549873/original/file-20230924-19-o34i54.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three men in suits, standing in front of a fire engine." src="https://images.theconversation.com/files/549873/original/file-20230924-19-o34i54.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/549873/original/file-20230924-19-o34i54.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=435&fit=crop&dpr=1 600w, https://images.theconversation.com/files/549873/original/file-20230924-19-o34i54.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=435&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/549873/original/file-20230924-19-o34i54.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=435&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/549873/original/file-20230924-19-o34i54.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=547&fit=crop&dpr=1 754w, https://images.theconversation.com/files/549873/original/file-20230924-19-o34i54.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=547&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/549873/original/file-20230924-19-o34i54.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=547&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">New Jersey Gov. Phil Murphy, left, seen here in 2018 with Robert Menendez and fellow New Jersey Democratic Sen. Cory Booker, has called on Menendez to resign.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SuperstormSandyRebuildingAid/b3ee03a1ac9644d8add820dee6f3a57d/photo?Query=Phil%20Murphy%20Robert%20Menendez&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=3&currentItemNo=2">AP Photo/Wayne Parry</a></span>
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<p><strong>How likely is Menendez’s ouster from the Senate?</strong></p>
<p>Generally, neither the House nor Senate <a href="https://www.senate.gov/about/powers-procedures/expulsion.htm">will move to expel</a> <a href="https://www.everycrsreport.com/reports/RL33229.html">an indicted member before conviction</a>. </p>
<p>There have been rare exceptions, such as when <a href="https://www.nydailynews.com/2001/11/20/ex-sen-harrison-williams-81/">Sen. Harrison “Pete” Williams was indicted</a> in the FBI Abscam sting operation from the late 1970s and early 1980s <a href="https://www.fbi.gov/history/famous-cases/abscam">against members of Congress</a>. Williams resigned in 1982 <a href="https://www.washingtonpost.com/archive/politics/1982/03/12/williams-facing-expulsion-resigns-from-us-senate/714785a8-a310-47cd-8584-959f4549fd2c/">shortly before an expected expulsion</a> vote. With current <a href="https://about.bgov.com/brief/balance-of-power-a-partisan-convergence-in-the-senate/">Democratic control of the Senate</a> by a margin of just one seat, Menendez’s ouster seems unlikely even though the Democratic governor of New Jersey would assuredly appoint a Democrat to fill the vacancy.</p>
<p><strong>‘In the history of the United States Congress, it is doubtful there has ever been a corruption allegation of this depth and seriousness,’ <a href="https://www.nytimes.com/2023/09/23/nyregion/robert-menendez-political-future.html?searchResultPosition=1">former New Jersey Sen. Robert Torricelli said</a>. True?</strong></p>
<p>That seems hyperbolic. The Menendez case is just the latest in a long line of corruption cases involving members of Congress. </p>
<p>In <a href="https://www.fbi.gov/history/famous-cases/abscam">the Abscam case</a>, seven members of the House and one Senator were all convicted in a bribery scheme. That scheme involved undercover FBI agents <a href="https://www.fbi.gov/history/famous-cases/abscam">dressed up as wealthy Arabs</a> offering cash to Congress members in return for a variety of political favors. </p>
<p>In the <a href="https://ethics.house.gov/committee-reports/korean-influence-investigation">Korean Influence Investigation in 1978</a> – when I served as House counsel – <a href="https://library.cqpress.com/cqalmanac/document.php?id=cqal78-1237310">the House</a> and <a href="https://www.nytimes.com/1979/08/17/archives/investigation-into-influencebuying-by-korean-figure-comes-to-an-end.html">Department of Justice conducted an extensive investigation</a> of influence peddling by Tongsun Park, a South Korean national, in which questionnaires were sent to every member of the House relating to acceptance of gifts from Park. </p>
<p>Going all the way back to 1872, there was <a href="https://www.britannica.com/money/topic/Credit-Mobilier-Scandal">the Credit Mobilier scandal</a> that involved <a href="https://www.americanheritage.com/ultimate-congressional-scandal">prominent members of the House and Vice President Schuyler Colfax</a> in a scheme to reward these government officials with shares in the transcontinental railroad company in exchange for their support of funding for the project.</p><img src="https://counter.theconversation.com/content/214225/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stanley M. Brand does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The indictment of Sen. Bob Menendez is full of lurid details – hundreds of thousands of dollars in cash stuffed into clothes among them. Will they tank Menendez’s career?
Stanley M. Brand, Distinguished Fellow in Law and Government, Dickinson Law, Penn State
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/201119
2023-05-17T12:39:52Z
2023-05-17T12:39:52Z
How China uses ‘geostrategic corruption’ to exert its influence in Latin America
<figure><img src="https://images.theconversation.com/files/526566/original/file-20230516-23-rcqcyf.jpg?ixlib=rb-1.1.0&rect=8%2C95%2C5762%2C3746&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The successful courting of Honduras is the latest example of China's influence in Latin America.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/chinese-foreign-minister-qin-gang-and-honduras-foreign-news-photo/1476447324?adppopup=true">Lintao Zhang/Pool/Getty Images</a></span></figcaption></figure><p>Corruption has long been a <a href="https://gjia.georgetown.edu/2022/04/01/radical-transparency-the-last-hope-for-fighting-corruption-in-latin-america%EF%BF%BC/">scourge in parts of Latin America</a>. </p>
<p>Traditionally, it has funneled down domestic routes, with <a href="https://www.transparency.org/en/press/2022-corruption-perceptions-index-cycle-corruption-organised-crime-instability-americas">local politicians, business interests</a> and <a href="https://www.cfr.org/backgrounder/mexicos-long-war-drugs-crime-and-cartels">drug lords</a> benefiting from graft and dodgy dealings. Indeed, a 2022 report from Transparency International found that 27 out of 30 countries in Latin America and the Caribbean have shown <a href="https://www.transparency.org/en/news/cpi-2022-americas-corruption-criminal-networks-human-rights-abuses">stagnant corruption levels</a> with no improvement in recent years.</p>
<p>But over the last two decades, a <a href="https://www.foreignaffairs.com/articles/united-states/2020-06-09/rise-strategic-corruption">new form of corruption</a> has taken hold in countries in the region, a phenomenon we call “geostrategic corruption.” </p>
<p>It is characterized by external countries using corrupt methods – no-bid contracts, insider financial deals, special relations with those in power – to become stakeholders in multiple facets of the politics, economy and society of a country. China is <a href="https://www.politico.com/newsletters/politico-china-watcher/2021/08/12/adm-faller-china-exploiting-corruption-in-latin-america-493948">a master of the art</a>; the United States, less so.</p>
<p>As <a href="https://pir.fiu.edu/people/political-science-graduate-students/valeriia-popova1/valeriia-popova.html">scholars of</a> <a href="https://pir.fiu.edu/people/faculty-a-z/eduardo-gamarra1/eduardo-gamarra.html">Latin American politics</a>, we have seen how China has used geostrategic corruption to gain a foothold in the region as <a href="https://time.com/6186494/americas-summit-biden-china/">U.S. influence has waned</a>.</p>
<h2>What is geostrategic corruption?</h2>
<p>Geostrategic corruption builds on <a href="https://www.transparency.org/en/news/cpi-2022-americas-corruption-criminal-networks-human-rights-abuses">traditional pervasive patterns</a> of clientelism and patronage. In Latin America in particular, the growth of the drug gangs since the 1980s introduced “narco-corruption” in which police and local officials collude with organized gangs, which are able to “<a href="https://images.transparencycdn.org/images/2021-Report-Resisting-corruption-along-drug-trafficking-routes-Crimjust.pdf">buy protection</a>” from prosecution. </p>
<p>As a result, police, local governments and elected representatives are considered by watchdogs as among <a href="https://www.transparency.org/en/gcb/latin-america/corruption-on-the-rise-in-latin-america-and-the-caribbean">the most corrupt political entities</a> in Latin America, with the region consistently scoring low in annual global <a href="https://www.transparency.org/en/news/cpi-2022-americas-corruption-criminal-networks-human-rights-abuses">corruption perception rating</a>.</p>
<p>This pattern of corruption has coincided with a period in which the U.S. has turned its attention away from Latin America and toward <a href="https://www.brookings.edu/blog/order-from-chaos/2021/09/07/reflections-on-the-long-term-repercussions-of-september-11-for-us-policy-in-the-middle-east/">first the Middle East</a> <a href="https://www.cfr.org/project/us-pivot-asia-and-american-grand-strategy">and then Asia</a>.</p>
<p>The vacuum has largely been filled by China. Trade between the region and China skyrocketed from <a href="https://www.brookings.edu/research/the-geopolitics-of-chinas-rise-in-latin-america/">US$10 billion worth of goods in 2000</a> to <a href="https://www.cfr.org/backgrounder/china-influence-latin-america-argentina-brazil-venezuela-security-energy-bri">$450 billion in 2021</a>. China is now the top trading partner of South America, making up to 34% of total trade in <a href="https://www.cfr.org/backgrounder/china-influence-latin-america-argentina-brazil-venezuela-security-energy-bri">Chile, Brazil and Peru</a>.</p>
<p>China’s expansion in the region is largely driven by the country’s <a href="https://foreignaffairs.house.gov/china-regional-snapshot-south-america/">search for resources</a> such as cobalt, lithium, rare earths, hydrocarbons and access to foodstuffs, which are abundant in Latin America. In the past 20 years, China has also poured <a href="https://www.cfr.org/backgrounder/china-influence-latin-america-argentina-brazil-venezuela-security-energy-bri">massive investments</a> into infrastructure, energy and financial sectors of Latin America.</p>
<p>And China isn’t alone in upping its interest in Latin America. The last two decades have also seen an increase in investment and influence in the region <a href="https://carnegieendowment.org/2018/05/03/russia-playing-geopolitical-game-in-latin-america-pub-76228">from Russia</a> <a href="https://www.iri.org/news/foreign-authoritarian-influence-in-latin-america-irans-growing-reach/">and Iran</a>. </p>
<p>These countries have found Latin America a fertile ground due in no small part to the region’s culture of corruption and weak institutions, we argue. Local criminal networks and the disregard of democratic norms on the ground have made it easier for countries that themselves are <a href="https://www.reuters.com/article/bribes-transparency/chinese-and-russian-firms-fare-worst-in-bribery-index-idINL5E7LV31T20111101">perceived to be dogged by corruption</a> to gain a foothold in Latin America.</p>
<h2>US-China global competition</h2>
<p>China’s presence in the region forms part of the country’s long-term strategic objective to <a href="https://www.lanacion.com.ar/politica/el-embajador-stanley-admitio-que-eeuu-necesita-mas-herramientas-para-poder-competir-con-china-en-nid04052023/">challenge U.S. influence across the globe</a> through economic, military, financial and political means.</p>
<p>That process has been aided by global trends. Countries such as <a href="https://apnews.com/article/china-brazil-lula-xi-jinping-91c34b4a9fb78f263d6f81f1e9a16f49">Brazil</a> and <a href="https://worldcrunch.com/world-affairs/argentina-china-in-americas">Argentina</a> have increasingly sought to diversify bilateral relationship and become less dependent on U.S. trade.</p>
<p>Meanwhile, Russian aggression in Ukraine has seemingly given China more weight on the international scene, with Beijing positioning itself as an <a href="https://apnews.com/article/china-saudi-arabia-iran-global-mediator-45ec807c8fd2b2aa65eef4cc313b739d">alternative diplomatic force</a> to Washington, especially to countries that feel nonaligned to the West. A recent example was seen in March, when Honduras announced it would <a href="https://www.npr.org/2023/03/27/1166177955/honduras-establishes-ties-with-china-after-break-from-taiwan">establish diplomatic relations with Beijing</a> and break off ties with Taiwan – a development that Taiwanese officials say followed the “<a href="https://focustaiwan.tw/politics/202303230006">bribing” of Honduran officials</a>.</p>
<p>What gives China an added competitive edge as it extends its influence is that it is able to eschew constraints that bind many would-be investors in the West – such as environmental concerns or hesitation over a country’s labor rights and level of corruption. Chinese companies are <a href="https://www.csis.org/analysis/corruption-flows-along-chinas-belt-and-road">judged by international watchdogs to be</a> <a href="https://issuu.com/transparencyinternational/docs/2016_transparencyincorporatereporti?e=2496456/37122985">among the least transparent</a> in the world, and bribery watchdogs have long noted Beijing’s <a href="https://images.transparencycdn.org/images/2018_Report_ExportingCorruption_English_200402_075046.pdf">reluctance to prosecute Chinese companies or individuals</a> accused of bribery in regard to foreign contracts. A 2021 study found that <a href="https://www.aiddata.org/publications/banking-on-the-belt-and-road">35% of China’s “Belt and Road” projects</a> worldwide have been marked by environmental, labor and corruption problems.</p>
<p>The U.S. administration, in contrast, is more restricted by <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/03/29/fact-sheet-the-biden-harris-administrations-abiding-commitment-to-democratic-renewal-at-home-and-abroad/">commitments to encourage democratic development</a> as well as public pressure and international image. Washington does not have the same privilege of <a href="http://afe.easia.columbia.edu/special/china_1950_forpol_principles.htm">diplomatic pragmatism</a> as China. </p>
<p>U.S. companies are, of course, not spotless when it comes to engaging in corrupt practices overseas. But unlike China, the U.S. government is bound to an <a href="https://www.oecd.org/corruption/oecdantibriberyconvention.htm">international treaty</a> <a href="https://www.dw.com/en/governments-turn-a-blind-eye-to-foreign-bribery-transparency-international/a-55252806">prohibiting the use of bribes</a> to win contracts. Moreover, the U.S. <a href="https://www.law.cornell.edu/uscode/text/15/78dd-1">Foreign Corrupt Practices Act</a> strictly prohibits American companies from bribing foreign officials; China has no such equivalent.</p>
<h2>Chinese corruption in the region</h2>
<p>Chinese investment <a href="https://www.csis.org/analysis/populism-china-and-covid-19-latin-americas-new-perfect-storm">has been easier where populist regimes govern</a> and where the rule of law has long been undermined, such as <a href="https://worldjusticeproject.org/rule-of-law-index/country/Argentina">Argentina</a>, <a href="https://worldjusticeproject.org/rule-of-law-index/country/2022/Bolivia/">Bolivia</a> and <a href="https://worldjusticeproject.org/rule-of-law-index/country/2022/Venezuela%2C%20RB/">Venezuela</a>.</p>
<p>For example, in Bolivia during the 14-year tenure of President Evo Morales, Chinese companies <a href="https://www.reuters.com/article/us-bolivia-lithium-china/bolivia-picks-chinese-partner-for-2-3-billion-lithium-projects-idUSKCN1PV2F7">achieved a major foothold</a> in key sectors of the economy that has translated into a monopoly over the lithium industry there, despite a <a href="https://asia.nikkei.com/Spotlight/Caixin/China-consortium-to-develop-lithium-deposits-in-Bolivia">strong anti-mining movement in the country</a>.</p>
<p>Geostrategic corruption in Argentina is firmly rooted at the local level, in provinces and regions across the country, <a href="https://icaie.com/2023/03/new-report-the-prc-feudal-governors-and-no-accountability-lithium-mining-in-argentinas-northwest-district/">feudal-like governors</a> have enabled a <a href="https://www.batimes.com.ar/news/world/argentina-retains-low-score-in-global-corruption-ranking.phtml">sophisticated corruption network</a> that China has seemingly used to invest in everything from <a href="https://www.reuters.com/business/energy/argentina-wants-china-fully-fund-83-bln-nuclear-plant-amid-cash-shortfall-2022-04-05/#:%7E:text=The%20South%20American%20nation%20signed,faces%20a%20tighter%20fiscal%20outlook.">nuclear plants</a> and building lithium battery plants to constructing a satellite-tracking <a href="https://foreignpolicy.com/2019/02/08/us-military-warns-of-threat-from-chinese-run-space-station-in-argentina/">deep-space ground station</a>, railroads, <a href="https://foreignpolicy.com/2022/05/23/argentina-china-us-imf-bri-debt-economy-summit-americas/">hydroelectric plants</a>, research facilities and <a href="https://www.scmp.com/news/china/diplomacy/article/3213774/argentina-revives-possibility-chinese-fighter-jet-purchase-renewing-beijings-hopes-jf-17-south">maybe even fighter jets</a>.</p>
<p>In Ecuador, such projects <a href="https://www.nytimes.com/2018/12/24/world/americas/ecuador-china-dam.html">include a dam</a> built in exchange for <a href="https://theglobalamericans.org/2019/12/latin-america-and-china-choosing-self-interest/">oil contracts</a>; the Coca Codo Sinclair hydroelectric plant, which <a href="https://www.reuters.com/article/ecuador-power-china-idUSL1N2OW10M">developed massive cracks soon after construction</a>; and the Quijos hydroelectric project, which <a href="https://www.elcomercio.com/actualidad/empresa-china-electrica-ecuador-incumplida.html">failed to generate promised volumes of power</a>. Similarly, the Chinese-financed Interoceanic Grand Canal in Nicaragua was estimated by opponents of the project to <a href="https://thediplomat.com/2019/08/nicaraguas-chinese-financed-canal-project-still-in-limbo/">irreversibly impact the ecosystem and displace about 120,000 people</a>, while local activists faced <a href="https://www.amnesty.org/en/documents/amr43/6515/2017/en/">harassment, violence and unlawful detention</a>. </p>
<p>In Venezuela, China initiated but never completed construction of a multibillion dollar <a href="https://apnews.com/article/3367297bb5cc4fc497579164f679ec75">bullet train line</a>, and an iron mining deal not only allowed the Asian country to buy Venezuela’s iron ore at a price 75% below market, but also turned out to be an instance of Chinese predatory financing, leaving Venezuela in a catastrophic <a href="https://dialogochino.net/en/trade-investment/40016-a-dream-deal-with-china-iron-ore-that-ended-in-nightmarish-debt-for-venezuela/">$1 billion debt</a>. Likewise, in Panama, port concessions and a high-speed train line were <a href="https://dialogochino.net/en/trade-investment/34472-has-chinas-winning-streak-in-panama-ended/#:%7E:text=A%20Chinese%20proposal%20for%20a%20US%244.1%20billion%20high,was%20cancelled%20and%20recast%20as%20a%20public-private%20partnership">frozen or canceled</a>, while the investor is under <a href="https://www.newsroompanama.com/business/big-time-chinese-investor-in-panama-under-probe-cloud">investigation</a> in China.</p>
<p>Throughout the region, Chinese firms have been <a href="https://www.reuters.com/article/us-venezuela-corruption/venezuela-charges-five-officials-with-embezzling-china-funds-idUSBRE9670VW20130708">cited in numerous</a> <a href="https://www.bnamericas.com/en/news/bolivias-roads-agency-raided-following-bribe-allegation">cases involving bribery</a> <a href="https://cuencahighlife.com/attorney-general-opens-bribery-investigation-of-chinese-construction-company-projects/">and kickback schemes</a> that have enriched local officials in return for contracts and access.</p>
<h2>What does it mean for the US?</h2>
<p>This use of geostrategic corruption works to the direct detriment of U.S. interests. </p>
<p>In Argentina and Bolivia, Chinese expansion means that sectors that are crucial for the success of the U.S.’s green energy goals are increasingly under Beijing’s hold. It also undermines U.S. efforts to counter corruption and human rights abuses in the region. </p>
<p>And U.S. companies are unable to compete. The Biden administration has set <a href="https://www.wilsoncenter.org/sites/default/files/media/uploads/documents/Nearshoring%20and%20Renewable%20Energy-%20Building%20on%20the%20Los%20Angeles%20Summit%20of%20the%20Americas.pdf">high standards for U.S. investment</a> in the very sectors where the Chinese have a strong foothold. These include <a href="https://www.whitehouse.gov/wp-content/uploads/2022/10/Biden-Harris-Administrations-National-Security-Strategy-10.2022.pdf">transparency and accountability</a>, as well as commitments to environmental, labor and human rights standards.</p>
<p>President Joe Biden has stated that adherence to these standards is what distinguishes U.S. foreign investments from its competitors. But it does hamstring American companies when it comes to competing with China.</p>
<p>In the meantime, while the U.S. is looking for answers and trying to figure out how to reestablish influence in Latin America, China is quietly and pragmatically increasing its presence in the region.</p><img src="https://counter.theconversation.com/content/201119/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>As an academic and as director of a university research center, I've received funding from foundations, US government agencies, and multilateral institutions.</span></em></p><p class="fine-print"><em><span>Valeriia Popova does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
As US influence in Latin America has waned, Beijing has been able to expand business interests in the region on the back of shady practices.
Eduardo Gamarra, Professor of Politics and International Relations, Florida International University
Valeriia Popova, Professor of Politics and International Relations, Florida International University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/201677
2023-03-20T14:08:47Z
2023-03-20T14:08:47Z
Kenya’s police are violent, unaccountable and make most citizens feel less safe – should they be abolished?
<figure><img src="https://images.theconversation.com/files/515187/original/file-20230314-1506-fjivlu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Kenyans protest against police extrajudicial killings in Nairobi in December 2022. </span> <span class="attribution"><span class="source">Tony Karumba/AFP via Getty Images</span></span></figcaption></figure><p>A world without the police is inconceivable to many people. The police are viewed as part of modern society’s foundation, ensuring democracy and keeping people safe. </p>
<p>In practice, however, police around the world sometimes repress <a href="https://www.theguardian.com/commentisfree/2012/dec/29/fbi-coordinated-crackdown-occupy">social movements</a>, stifle <a href="https://sociologytwynham.files.wordpress.com/2014/10/policing-the-crisis.pdf">democracy</a>, and exacerbate social and racial <a href="https://theintercept.com/2020/06/10/ruth-wilson-gilmore-makes-the-case-for-abolition/">injustice</a>. Across the African continent, they often use force to prop up repressive regimes. And in Kenya in particular, <a href="https://theconversation.com/the-art-of-bribery-a-closeup-look-at-how-traffic-officers-operate-on-kenyas-roads-185551">extortion</a> and <a href="https://www.matharesocialjustice.org/who-is-next/">extrajudicial killings</a> by the police are <a href="http://parliament.go.ke/sites/default/files/2021-11/Report%20on%20Inquiry%20into%20Extrajudicial%20Killings%20and%20Enforced%20Disappearance%20in%20Kenya_.pdf">rampant</a>. </p>
<p>Kenya is unusual for its extensive attempts to reform the police. Reform efforts began in earnest in 2008, when the police were found to be <a href="https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1004&context=tjrc-gov">complicit in post-election violence</a>. And yet, after 15 years and <a href="https://nation.africa/kenya/news/kenya-police-reforms-to-cost-sh81-4bn--746284">billions of shillings spent</a>, the police reform project has <a href="https://www.theelephant.info/features/2017/06/01/set-up-to-fail-police-reforms-in-kenya/">largely failed</a>. </p>
<p>The Kenyan police remain repressive, unaccountable and effectively unreformable. Many citizens complain about how the police treat them <a href="https://theworld.org/stories/2016-05-23/police-officers-treat-nairobi-neighborhood-atm-machine-residents-say">like ATMs</a> – a source of cash. During the COVID-19 pandemic, the police <a href="https://www.citizen.digital/news/kenya-police-have-killed-15-people-injured-31-in-covid-19-curfew-enforcement-ipoa-334522">killed tens of Kenyans</a> while enforcing curfew measures. </p>
<p>Given such failures, we posed the question: are the Kenya police <a href="https://www.akpress.org/areprisonsobsolete.html">obsolete</a>? </p>
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Read more:
<a href="https://theconversation.com/kenya-police-killings-point-to-systemic-rot-and-a-failed-justice-system-193468">Kenya: police killings point to systemic rot and a failed justice system</a>
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<p>We’ve conducted hundreds of interviews, discussion groups and over a decade of ethnographic research into how <a href="https://journals.sagepub.com/doi/10.1177/1463499617729295">counter-terrorist policing</a> and <a href="https://journals.sagepub.com/doi/pdf/10.1177/1463499617729229">securitisation</a> have shaped <a href="https://www.african-cities.org/safety-and-security/">Nairobi</a>. And in turn, how local residents <a href="https://www.sapiens.org/culture/police-violence-kenya/">respond to police violence</a> and build their own <a href="https://www.nature.com/articles/s41599-018-0078-8">practices of care</a>, mutual aid and <a href="https://journals.sagepub.com/doi/full/10.1177/0042098018789059">security</a>. </p>
<p>We have come to the conclusion that the police make most people feel less safe. Many residents told us they don’t depend on the police for their safety: they keep each other safe. Given the impasse of police reform – and citizen responses to this – there is a strong argument to be made for the abolition of the Kenyan police altogether. </p>
<h2>Policing at an impasse</h2>
<p>Modern police institutions made their first appearances on the African continent as part of colonisation and the expansion of European capitalist interests.</p>
<p>In Kenya, the roots of policing lie in early colonial “<a href="https://www.ohioswallow.com/book/unhappy+valley">conquest</a>”. The Imperial British East African Company developed security forces to protect its expanding economic interests in the 1890s, and the <a href="https://www.britannica.com/place/Kenya/The-East-Africa-Protectorate#ref419085">Kenya-Uganda Railroad</a> developed its own police force in 1902. </p>
<p>After Kenya’s independence in 1963, the police were “Africanised” but retained much of their <a href="https://link.springer.com/chapter/10.1057/9781137558305_4">colonial character</a>. Under <a href="https://theconversation.com/daniel-arap-moi-the-making-of-a-kenyan-big-man-127177">Daniel arap Moi’s authoritarian regime</a> (1978-2002), the police continued to play a key role in repressing dissent. </p>
<p>There have been calls to reform the Kenyan police for decades. But the <a href="https://www.ohchr.org/en/press-releases/2009/10/un-human-rights-team-issues-report-post-election-violence-kenya">2007-08 post-election violence</a>, in which police were complicit in widespread ethnic violence, accelerated attempts at reform.</p>
<p>Over the past 15 years, police reform has been enshrined in the <a href="https://www.klrc.go.ke/index.php/constitution-of-kenya/158-chapter-fourteen-national-security/part-4-the-national-police-service/413-244-objects-and-functions-of-the-national-police-service">2010 constitution</a> and actualised in numerous acts of parliament. It’s been supported internationally with <a href="https://www.unodc.org/documents/evaluation/Briefs/2018/KENZ04_Final_Evaluation_Brief_June_2018.pdf">funding and technical expertise</a> from the UN, the US and the EU, among others. It prompted the <a href="https://www.nationalpolice.go.ke/pages/search.html">reorganisation of the police service</a> and the establishment of <a href="https://www.ipoa.go.ke/#">civil oversight mechanisms</a>. </p>
<p>Yet, despite all of these efforts, the Kenyan police <a href="https://theconversation.com/kenya-police-killings-point-to-systemic-rot-and-a-failed-justice-system-193468">remain corrupt, violent and unaccountable</a>. </p>
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Read more:
<a href="https://theconversation.com/kenya-has-tried-to-reform-its-police-force-but-its-left-gaps-for-abuse-176044">Kenya has tried to reform its police force, but it's left gaps for abuse</a>
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<p>Civilian oversight over the police has proved ineffectual. The Independent Policing Oversight Agency has managed to bring only <a href="http://www.parliament.go.ke/sites/default/files/2022-03/Report%20of%20Independent%20Policing%20Oversight%20Authority%20on%20Performance%20for%20January%20%E2%80%93%20June%202021.pdf">12 cases of police violence to conviction</a> out of more than 20,000 complaints received between 2012 and 2021. That is only one out of every 1,667 complaints. The under-resourced agency simply can’t grapple with the immense volume of reported police abuses.</p>
<h2>The case for abolition</h2>
<p>Police reform <a href="https://www.theelephant.info/features/2017/06/01/set-up-to-fail-police-reforms-in-kenya/">has failed</a>. Is it time to consider abolition?</p>
<p>Abolition is not about simply tearing things down, but rather asking what should exist in place of outdated and violent systems that no longer serve people. Abolition is a <a href="https://www.thenation.com/article/culture/mariame-kaba-interview-til-we-free-us/">creative</a> and <a href="https://theintercept.com/2020/06/10/ruth-wilson-gilmore-makes-the-case-for-abolition/">constructive project</a> with deep <a href="https://www.youtube.com/watch?v=UwYik8nn63U">philosophical roots</a>. </p>
<p>So why abolish the Kenya police?</p>
<ol>
<li><p>The police are functionally obsolete for most Kenyans. In many low-income neighbourhoods, <a href="https://journals.sagepub.com/doi/full/10.1177/0042098018789059">our research shows</a> that people avoid calling the police to respond to crises or crimes. For many, experience shows that the police can <a href="https://www.bbc.com/news/world-africa-64509793">make matters worse</a>.</p></li>
<li><p>The police often exacerbate insecurity, violence and <a href="https://theconversation.com/the-art-of-bribery-a-closeup-look-at-how-traffic-officers-operate-on-kenyas-roads-185551">corruption</a>. To provide for their own safety, residents increasingly <a href="https://www.thebritishacademy.ac.uk/publishing/journal-british-academy/10s3/to-retreat-or-to-confront-grassroots-activists-navigating-everyday-torture-in-kenya/">organise themselves into networks</a> of friends, family and neighbours for basic safety. For instance, women in Mathare, Nairobi, <a href="https://journals.sagepub.com/doi/10.1177/0042098018789059">organise their own security practices</a>, which include conflict resolution, de-escalation of violence and <a href="https://www.matharesocialjustice.org/mothers-of-victims-and-survivors-network-from-victims-to-community-defenders/">support for survivors</a>.</p></li>
<li><p>In more affluent neighbourhoods, residents increasingly rely on private companies to provide <a href="https://journals.sagepub.com/doi/10.1177/1463499617729295">security in their compounds</a>. Police are seen as one among <a href="https://journals.sagepub.com/doi/10.1177/0263775820923374">many security services</a> available for hire. In our research, the few positive experiences with the Kenyan police were reported (predominantly) by such affluent residents.</p></li>
<li><p>The remaining function of the police is “<a href="https://www.wiley.com/en-us/Enforcing+Order:+An+Ethnography+of+Urban+Policing-p-9780745664804">enforcing order</a>” and protecting the state against society. Officers uphold and protect a rarefied governing class and political elite against the population. </p></li>
</ol>
<p>Police abolition, therefore, would mean dismantling ineffective and repressive institutions and replacing them with <a href="https://www.akpress.org/we-do-this-til-we-free-us.html">systems of actual safety</a>, systems that enable society to thrive.</p>
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<em>
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Read more:
<a href="https://theconversation.com/many-kenyans-have-embraced-vigilante-cops-an-ineffective-police-force-is-to-blame-196449">Many Kenyans have embraced vigilante cops – an ineffective police force is to blame</a>
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<h2>What should replace the police?</h2>
<p>When confronted with the idea of “abolition” for the first time, many people often respond: “but who will keep us safe?” </p>
<p>In Nairobi, the answer is to be found in existing social practices. The problem is that there’s a lack of resources to support alternatives to punitive security. We call for defunding the police and investing these resources in such alternatives.</p>
<p><strong>1. Invest in communities.</strong> When we ask about local security problems, residents often answer that the lack of schools, food, land, quality housing, <a href="https://www.matharesocialjustice.org/category/maji-ni-haki-water-campaign/">water</a>, electricity, toilets, healthcare and safe places for kids to play are what cause “insecurity”. Reinvestment in community means funding such social infrastructure to allow people to thrive. This reduces <a href="https://www.brookings.edu/research/want-to-reduce-violence-invest-in-place/">crime and violence</a>. </p>
<p><strong>2. Invest in alternative safety mechanisms.</strong> This means strengthening dispute-resolution mechanisms that help resolve conflicts without violence. The government needs to support existing <a href="https://www.matharesocialjustice.org">social justice centres</a>, <a href="https://africa.unwomen.org/en/news-and-events/stories/2021/08/inside-kenyas-social-justice-centres">networks</a> and movements fighting for change. </p>
<p>When these forms of social reinvestment are pursued, the need for the police is greatly diminished.</p><img src="https://counter.theconversation.com/content/201677/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wangui Kimari is the participatory action research coordinator for the Mathare Social Justice Centre (MSJC) </span></em></p><p class="fine-print"><em><span>Zoltán Glück received research funding from the Social Science Research Council, Wenner-Gren Foundation for Anthropological Research, Fulbright IIE, and the African Cities Research Consortium. The views expressed in this article are solely the authors' and do not represent the positions of any of these funding organizations. </span></em></p>
Alternatives to violent policing already exist in the daily practices of Nairobi residents who don’t depend on the police for safety.
Wangui Kimari, Anthropologist, University of Cape Town
Zoltán Glück, Assistant Professor of Anthropology, American University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/196515
2022-12-14T10:48:01Z
2022-12-14T10:48:01Z
Qatar lobbying: European Parliament scandal shows urgent need for tighter regulations
<p>On 11 December, Eva Kaili, vice-president of the European Parliament, and three others were <a href="https://www.politico.eu/article/mep-kaili-charged-with-corruption-by-belgian-prosecutors-reports/">charged and imprisoned</a> in connection with an investigation into suspected corruption linked to Qatar.</p>
<p>Ms Kaili, a Greek Socialist MP in charge of relations with the Middle East, had recently <a href="https://www.europarl.europa.eu/doceo/document/CRE-9-2022-11-21-INT-1-137-0000_EN.html">explained to her peers</a> that Qatar was “at the forefront of labour law” and its will to host the football World Cup signalled substantial democratic progress. Any elected representative critical of Qatar were engaging in “harassment”, she said.</p>
<p>On Saturday 10 December, Belgian police found bags of cash (<a href="https://greekreporter.com/2022/12/10/qatar-corruption-scandal-cash-found-greek-mep-kaili/">at least 600,000 euros</a>) at her home after intercepting her father with a large suitcase full of money, which he was about to take back to Greece. Another Socialist MP, the Belgian <a href="https://www.politico.eu/article/belgian-mep-marc-tabella-cops-raid-belgian-meps-home-amid-qatar-scandal/">Marc Tarabella</a>, is also implicated. As vice-chairman of the European Parliament’s delegation for relations with the Arabian Peninsula, he recently said that Qatar was <a href="https://www.politico.eu/article/qatar-world-cup-2022-human-rights-labor-laws-football-emmanuel-macron-gianni-infantino/">“an example to follow”</a> for other countries in the region.</p>
<p>This case cannot be said to be typical of what happens in the European Parliament. Indeed, the institution has never before been confronted with a corruption scandal of this magnitude. But the revelations act nevertheless as a wake-up call that illustrates two phenomena.</p>
<h2>Qatar’s methods under scrutiny</h2>
<p>The news shatters the narrative that <a href="https://www.qna.org.qa/fr-FR/News-Area/News/2022-09/15/l%E2%80%99entretien-de-son-altesse-avec-le-magazine-fran%C3%A7ais-le-point">Qatari authorities</a> and some of their supporters have been trying to weave for years – and even more so since the start of the World Cup competition – that the country is now ethically irreproachable.</p>
<p>If the accusations are proven, it would confirm suspicions that the country’s autocrats have long whitewashed its image in a bid to boost their <a href="https://www.lenouveleconomiste.fr/christian-chesnot-le-qatar-en-100-questions-95494/">international investment strategy</a> and develop business partnerships.</p>
<p>To date, Qatar has not shown that it is hosting the World Cup to learn from the ideas of fans from liberal democracies or to moderate its <a href="https://www.britannica.com/place/Qatar/Government-and-society">highly conservative society</a>. Instead, the country’s leaders have been concentrating on <a href="https://theathletic.com/2976035/2022/11/22/explained-david-beckham-ambassador-for-qatar/">hiring consultants and spokespersons</a> and inviting influential figures to Doha to attend the celebrations.</p>
<p>If confirmed by the courts, the scandal could open up a Pandora’s box of corruption among the country’s political, administrative, economic and media elites. Meanwhile, the French justice system continues to investigate the conditions under which the World Cup was awarded to the monarchy, including an infamous <a href="https://www.theguardian.com/football/2019/jun/18/sarkozy-psg-bein-sports-questions-michel-platini-qatar-2022-world-cup">lunch between then-president Nicolas Sarkozy and Qatari elites</a> in November 2010.</p>
<h2>Calls for change at the European Parliament</h2>
<p>This alleged scandal also illustrates the need for change and reform in the European Parliament.</p>
<p>Numerous cases revealed by the press show that the <a href="https://www.euronews.com/my-europe/2022/12/12/calls-for-eu-lobbying-rules-to-be-reformed-grow-as-corruption-scandal-rocks-brussels">pressure of lobbies on its members</a> increases along with MEPs’ responsibilities and influence. The presence and activities of lobbyists are already <a href="https://www.europarl.europa.eu/at-your-service/en/transparency/lobby-groups/">heavily regulated at the level of the European institutions</a> by comparison with many Member States, but the law and practice must constantly evolve to adapt to their renewed strategies.</p>
<p>We also need to create an environment that keeps lobbies and less ethically minded politicians at bay. For example, it is not right that MEPs should be able to work as <a href="https://euobserver.com/world/153221">consultants or lawyers in the margins of their mandate</a>, and that emissaries from non-EU countries should not be obliged to register in the <a href="https://commission.europa.eu/about-european-commission/service-standards-and-principles/transparency/transparency-register_fr">transparency register</a> that is required of all other people who intend to frequent the European institutions.</p>
<p>It is also high time that MEPs declare all the people they meet in the course of their work, and that rules limit the work they do once they have left the European Parliament. Finally, it is essential that the parties pay more attention to the honesty of candidates for the European Parliament, and that the EU has an independent ethics committee with broad powers of investigation and sanction.</p>
<p>The European Parliament has been debating these issues for 30 years now, and many NGOs, think tanks and experts have made <a href="https://www.anticor.org/2019/02/12/les-propositions-danticor-pour-les-elections-europeennes-2019/">suggestions in this area</a>. Progress has been made, but at a pace too slow to circumvent the most unprincipled lobbyists and greedy MEPs.</p>
<h2>Lessons for the future</h2>
<p>Of course, no law will ever prevent corrupt parliamentarians from selling their influence to the highest bidder. But if the European Parliament were to fight abuses more firmly, if transparency, probity and ethics were at the heart of its work organisation, then the institution would stop attracting dishonest people and political parties would no longer take the risk of sending them there. Corruptors would also be more cautious in how they act.</p>
<p>It is also essential for European and national authorities let justice be done, and that the protagonists of the Qatari corruption scandal are will no longer be in positions of influence.</p>
<p>Finally, the relativism that underpins the EU’s foreign policy must be fought. Not all outside countries are friends, and not all their representatives behave in an acceptable manner. Some countries don’t hesitate to employ unscrupulous methods when working with European partners – and denial is not an appropriate response to such behaviour.</p><img src="https://counter.theconversation.com/content/196515/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Olivier Costa is a member of France's Observatory of Public Ethics</span></em></p>
The ongoing corruption scandal in the EU Parliament casts a harsh light both on the practices of Qatar and on some of the flaws in the EU institutions.
Olivier Costa, Directeur des Études politiques au Collège d'Europe, Directeur de recherche au CNRS, CEVIPOF, Sciences Po
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/194826
2022-12-02T13:03:04Z
2022-12-02T13:03:04Z
Corruption in South Africa: new book lifts the lid on who profits - and their corporate enablers
<figure><img src="https://images.theconversation.com/files/496463/original/file-20221121-26-3p10v6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Wikimedia Commons</span></span></figcaption></figure><p>The new <a href="https://jacana.co.za/product/the-unaccountables/">book</a> The Unaccountables: The Powerful Politicians and Corporations who Profit from Impunity is welcome for the way it contextualises corruption. It shows how politicians and bureaucrats could not implement corruption without their corporate and professional enablers – the accountants, auditors and advocates who make it all possible.</p>
<p>The book is the result of a decade of research by <a href="https://www.opensecrets.org.za/">Open Secrets</a> and other NGOs. It is edited by Michael Marchant, Mamello Mosiana, Ra’eesa Pather and Hennie van Vuuren (a blend of investigative journalists and activists) and has 11 named contributors. Analytically, it covers four overlapping issues:</p>
<ul>
<li><p>crimes such as stealing public funds and evading tax </p></li>
<li><p>culpable negligence by professionals such as auditors </p></li>
<li><p>serial failure by regulatory authorities </p></li>
<li><p>moral and political issues such as inequality and corporate tax avoidance.</p></li>
</ul>
<h2>Corporate corruption</h2>
<p>Readers who are diligent in taking in the daily media will remember most of the high profile cases summarised in this book. But not all. It reveals that the <a href="https://theconversation.com/the-deaths-of-144-mentally-ill-patients-and-south-africas-constitutional-democracy-91433">Life Esidemeni tragedy</a>, in which 144 patients died after being placed in inadequate facilities run by NGOs in 2015, had one apartheid precedent. During the 1960s the <a href="https://www.britannica.com/topic/National-Party-political-party-South-Africa">National Party</a> regime outsourced the psychiatric care of 11,000 patients (9,000 of them black) to the British company Intrinsic Investments: 207 died (p.50). </p>
<p>The book fills some gaps in media reports. These tend to focus on those who are despised by the plutocratic, wealthy establishment – the ruling African National Congress politicians and their cronies. The media are comparatively reluctant to cover crimes committed by fellow denizens of their plutocratic stratosphere, such as auditors, accountants and advocates. For example, global media coverage of Hong Kong focuses on Chinese repression of freedom of expression – but overlooks its role as a tax shelter and corporate secrecy hideout for front companies and money laundering:</p>
<blockquote>
<p>a long-running failure to hold the powerful and wealthy to account for the crimes that they profit from. Economic crimes and corruption are committed by a small band of the powerful, but they pose fundamental threats to democracy and social justice. They result in the looting of public funds, the destruction of democratic institutions, and ultimately … the human rights of millions of people. (p.12)</p>
</blockquote>
<p>Fear of those with money to bring defamation litigation, or who decide on corporate advertising spending in the media, aggravates this situation.</p>
<p>This book is structured around apartheid profiteers, war profiteers, state capture profiteers, welfare profiteers, failing auditors, conspiring consultants, and bad lawyers.</p>
<p>The authors note how over 500 global corporations negotiated, thanks to their tax accountants, with Luxembourg, a tax haven, paying only 1% tax on their profits (p.254). They seem to have missed the case of Ireland, where such tax is one thousandth of 1% on profits. Such tax shelters pervade the west, especially <a href="https://thecommonwealth.org/our-member-countries">Commonwealth countries</a>.</p>
<p>The book calls for action to end such tax avoidance. But it does not spell out what it would entail. It would require the South African government to negotiate an international coalition to campaign through the United Nations, the Organisation for Economic Cooperation and Development and the African Union, to find enough allies to mitigate such a global power structure – class power in its purest form.</p>
<p>US president Joe Biden’s proposal that globally, corporate tax should have <a href="https://www.reuters.com/business/biden-offers-drop-corporate-tax-hike-proposal-source-2021-06-03/">a floor of 15%</a> provides a good start for such campaigns.</p>
<h2>Regulation failure</h2>
<p>This book gives welcome attention to a long-neglected problem in South Africa. That is the serial failure of regulatory authorities to hold companies or professionals to account. One instance too recent for this book to cover is that the minerals and energy minister, Gwede Mantashe, has fired from the National Nuclear Regulator a civil society representative, on the grounds that he is <a href="https://www.news24.com/fin24/economy/eskom/mantashe-fires-anti-nuclear-activist-from-regulatory-board-20220225">anti-nuclear</a>. </p>
<figure class="align-left ">
<img alt="Book cover with the words 'The Unaccountable' over images of several punidentifiable men walking." src="https://images.theconversation.com/files/496457/original/file-20221121-19-rl2eao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/496457/original/file-20221121-19-rl2eao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=929&fit=crop&dpr=1 600w, https://images.theconversation.com/files/496457/original/file-20221121-19-rl2eao.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=929&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/496457/original/file-20221121-19-rl2eao.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=929&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/496457/original/file-20221121-19-rl2eao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1167&fit=crop&dpr=1 754w, https://images.theconversation.com/files/496457/original/file-20221121-19-rl2eao.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1167&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/496457/original/file-20221121-19-rl2eao.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1167&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
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</figure>
<p>Since the minister’s portfolio and performance contract require him to promote nuclear power, it is a conflict of interests for him to interfere in the regulator of nuclear safety. The regulator should fall under the environmental affairs department, as in other countries. This is a topical example of the abuse of power, and defanging a regulatory authority.</p>
<p>The book underscores that the Independent Regulatory Board of Auditors (IRBA) refuses to name and shame. It abuses secrecy to protect the names and reputations of auditors guilty of conspiring with their corporate clients to conceal the truth (p.272):</p>
<blockquote>
<p>the IRBA’s desire to protect its members overshadows its responsibility. </p>
</blockquote>
<p>Since at least the first world war, pacifists have denounced the military-industrial complex as the merchants of death. The <a href="https://www.gov.za/national-conventional-arms-control-committee-ncacc-statement-south-african-arms-sales-regulation">National Conventional Arms Control Committee</a> is supposed to oversee South African exports of armaments and munitions. This is to ensure the country does not violate international treaties. It is not known to have refused any permits to export armaments to countries at war, even when they indiscriminately bomb civilians, as in Yemen.</p>
<p>The authors call for its statutory framework to be drastically toughened up.</p>
<h2>Apartheid profiteers</h2>
<p>The historical chapter of the book, on apartheid profiteers, holds no surprises. Of course, <a href="https://www.sanlam.co.za/Pages/default.aspx?gclid=Cj0KCQiA4OybBhCzARIsAIcfn9m5OBZxhgPlZPIjzU68Z0C7CSAqA8Eqkui60NBY7q8qkcX4Hw3vu_UaAlITEALw_wcB&gclsrc=aw.ds">Sanlam</a>, the insurance giant, and <a href="https://www.naspers.com/">Naspers</a>, the media behemoth, were always part of the Afrikaner nationalist movement, led by the secretive <a href="https://www.britannica.com/topic/Afrikaner-Broederbond">Broederbond</a>. Of course, individual Afrikaner businessmen donated to the <a href="https://www.sahistory.org.za/article/national-party-np">Nasionale Party</a>, which formalised apartheid in 1948, as did the military-industrial complex. All those companies manufacturing armaments had only one monopoly buyer – the South African Defence Force:</p>
<blockquote>
<p>a significant portion of the business elite kept the taps open to the party at the height of domestic repression and foreign wars (p.25). </p>
</blockquote>
<p>The authors do a thorough job of exposing all the Swiss, Belgian and Luxembourg bankers who comprised the sanction-busting front companies. It exposes the late <a href="https://www.britannica.com/biography/Mobutu-Sese-Seko">Mobutu Sese Seko</a> of Zaire (now the Democratic Republic of Congo) for providing false end user certificates to enable <a href="https://www.armscor.co.za/">Armscor</a>, the apartheid-era state arms procurement company, to smuggle in weaponry (p.42).</p>
<p>The book revisits the controversial <a href="https://www.corruptionwatch.org.za/the-arms-deal-what-you-need-to-know-2/">1999 arms deal</a>. It explains how bribes were described in corporate paperwork as consultancy fees. The arms deal was the first opportunity of the post-apartheid military to buy big-ticket weapons after a quarter-century of arms sanctions, which the post-apartheid military lacked the budget to maintain in service. </p>
<p>Since then, the amount wasted in the arms deal has been dwarfed by the billions spent by <a href="https://www.transnet.net/Pages/Home.aspx">Transnet</a>, the rail, ports and pipelines parastatal, on corrupt locomotive contracts. The same for <a href="https://www.prasa.com/">Prasa</a>, the passenger rail parastatal, and <a href="https://www.eskom.co.za/">Eskom</a>, the power utility, contracts.</p>
<p>Overall, it is a book that should be on the bookshelf of every thinking South African.</p>
<p><em>Updated to clear confusion created by the absence of an index in the advance proof sent to the author.</em></p><img src="https://counter.theconversation.com/content/194826/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Keith Gottschalk is an ANC member, but writes this review in his professional capacity as a political scientist.</span></em></p>
The new book is structured around apartheid profiteers, war profiteers, state capture profiteers, welfare profiteers, failing auditors, conspiring consultants and bad lawyers.
Keith Gottschalk, Political Scientist, University of the Western Cape
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/190781
2022-10-12T14:04:10Z
2022-10-12T14:04:10Z
Johannesburg’s informal traders face abuse: the city’s ‘world class’ aspirations create hostility towards them
<figure><img src="https://images.theconversation.com/files/488496/original/file-20221006-22-msr6cl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Street vendors ply their trade in Johannesburg.</span> <span class="attribution"><span class="source">EPA-EFE/Kim Lubrook</span></span></figcaption></figure><p>Unemployment and the rising cost of living force many people to make a living in the informal economy, particularly street trading. While it is difficult to measure the size of the informal economy, some studies show that <a href="https://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/documents/publication/wcms_626831.pdf#page=5">more than 60% of employed people in the world work in the informal economy</a>. It’s <a href="https://blogs.worldbank.org/africacan/supporting-africas-urban-informal-sector-coordinated-policies-social-protection-core#:%7E:text=Accounting%20for%2080.8%25%20of%20jobs,economic%20activity%20in%20urban%20Africa">over 80% in Africa</a>, and the trend is increasing. </p>
<p>But many governments discourage informal trading, considering it the <a href="https://link.springer.com/content/pdf/10.1007/s12132-005-0013-0.pdf">antithesis of development</a>. In their view, informal trading causes street congestion, contributes to crime and grime and threatens public order.</p>
<p>This is often the case in major cities, such as Johannesburg, South Africa’s economic engine, which aspires to be a <a href="https://www.theguardian.com/world/2013/jul/11/johannesburg-world-class-city-advert">“world-class city”</a>. “World class” is equated with formality and orderly streets. This aspiration, which is about maintaining an image of a city that is orderly and well managed to attract investments, is unsympathetic to street trading. </p>
<p>But the activity is burgeoning in Johannesburg. This poses urban management challenges for authorities. These challenges include overcrowding in busy streets, trading in non-demarcated spaces as well as the obstruction of foot and vehicular traffic and waste management.</p>
<p>The city’s street trading management approach is mainly restrictive. This is manifest in the <a href="https://core.ac.uk/download/pdf/39675492.pdf">limiting</a> of the number of legal trading spaces – through evictions, relocations, harassment of traders and confiscation of their stock.</p>
<h2>The study</h2>
<p><a href="https://www.wits.ac.za/media/wits-university/faculties-and-schools/-engineering-and-the-built-environment/research-entities/cubes/documents/Strategies%20used%20by%20Street%20Traders%20Organisations.pdf">Some studies</a> have found that there was a growing number of organisations that seek to represent the interests of street traders and influence policy and practice. </p>
<p>These organisations engage with the government at various spheres and participate in urban governance to influence the management of street trading. They employ a number of strategies to put pressure on the government to include them in decision making processes. </p>
<p>My recent PhD research focused on <a href="https://cdn.gcro.ac.za/media/documents/2022-01-12_Matjomane_MD_Thesis_10Dec2021.pdf">the role and influence of street trader leaders in urban governance</a> in Ekurhuleni, Johannesburg and Tshwane, the three major metropolitan cities in Gauteng Province, the country’s economic hub. I wanted to understand their role in urban governance. </p>
<p>Understanding the role street trader leaders play in street trading management is crucial to informing the development of appropriate, practical and inclusive management approaches. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-portal-designed-specially-for-informal-businesses-could-be-a-game-changer-133246">A portal designed specially for informal businesses could be a game-changer</a>
</strong>
</em>
</p>
<hr>
<p>For my study, I reviewed media articles and government documents, and conducted in-depth interviews with city officials as well as street traders and their leaders. </p>
<p>In the case of Johannesburg – the metro least “friendly” to street trading – I interviewed one former city official, eight trader leaders and eight street traders between 2017 and 2018.</p>
<p>Respondents were asked about everyday management of street trading, the relationship between street trader leaders and authorities, and the extent to which the leaders participated in managing trading. </p>
<p>I found that leaders of street traders represented traders in different ways and interact with the government in various ways. There are leaders who operate on the margins, with no institutionalised relationship with authorities and quasi-state bureaucrats who have been formally included in the everyday management of street trade (they have the power to allocate trading spaces together with officials and manage waiting lists for spaces). </p>
<p>The leaders on the margins of the state that have been excluded from formal processes find other ways of inserting themselves into the management processes (allocating trading spaces in areas not demarcated for trade). These findings matter because they show what is really happening on the ground in terms of street trade management. Some of these practices can inform the adoption of an inclusive management approach. </p>
<h2>Street trading policy and practice</h2>
<p><a href="https://www.joburg.org.za/documents_/Documents/POLICIES/COJ_%20Informal%20Trading%20Policy%20April%202022.pdf">Johannesburg’s informal trading policy</a> generally acknowledges street trading as a feature of the urban landscape – at least in rhetoric. This, amid the triple challenge of high poverty, unemployment and inequality. <a href="https://databankfiles.worldbank.org/data/download/poverty/33EF03BB-9722-4AE2-ABC7-AA2972D68AFE/Global_POVEQ_ZAF.pdf">Over 50%</a> of South Africans live in poverty, unemployment <a href="https://www.statssa.gov.za/publications/P0211/Media%20release%20QLFS%20Q2%202022.pdf">is over 30%</a>. The country is one of the <a href="https://www.worldbank.org/en/news/press-release/2022/03/09/new-world-bank-report-assesses-sources-of-inequality-in-five-countries-in-southern-africa#:%7E:text=South%20Africa%2C%20the%20largest%20country,World%20Bank%27s%20global%20poverty%20database">most unequal in the world</a>. </p>
<p>Despite the inclusive nature of the city’s informal trading policy, authorities tend to adopt restrictive and punitive approaches. The translation of the policy into technical tools such as bylaws and authorities’ management practices create an environment that is inimical to street trading. </p>
<p>The restrictive management practices manifest in various ways. One is the <a href="https://core.ac.uk/download/pdf/39675492.pdf">creation of scarcity</a> of trading spaces – by limiting the number of legal, demarcated spaces for street trading. This makes most traders in the inner city “illegal”. It criminalises them and fuels competition for lucrative trading spaces. (The city does not publicise information about the number of legal traders). </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/informal-economies-are-diverse-south-african-policies-need-to-recognise-this-104586">Informal economies are diverse: South African policies need to recognise this</a>
</strong>
</em>
</p>
<hr>
<p>Evictions and relocations of street traders from their sites are another manifestation of the city’s restrictive management approach. For example, in 2013, thousands of street traders in the inner city were evicted in a large-scale operation, dubbed <a href="https://www.iol.co.za/sundayindependent/news/operation-clean-sweep-a-dirty-game-1604801">Operation Clean Sweep</a>.</p>
<p>The street trading management approach in Johannesburg relies heavily on enforcing bylaws. This results in ongoing harassment of street traders considered “non-compliant”, and the (often unlawful) confiscation of their stock. Intimidation and harassment by city police occur daily. </p>
<h2>Intimidation and corruption</h2>
<p>The city’s approach has opened space for abuse of power and corruption by the authorities. When law enforcement officers confiscate the traders’ stock, they sometimes issue <a href="https://www.wits.ac.za/media/wits-university/faculties-and-schools/-engineering-and-the-built-environment/research-entities/cubes/documents/Strategies%20used%20by%20Street%20Traders%20Organisations.pdf">high fines</a>, which are more than the value of the stock.</p>
<p>This is often a strategy to get the street traders to pay bribes to avoid their stock being confiscated. In other instances, city police do not issue confiscation receipts. So, traders have no way of claiming their stock back.</p>
<p>All this has given rise to <a href="https://cdn.gcro.ac.za/media/documents/2022-01-12_Matjomane_MD_Thesis_10Dec2021.pdf">alternative forms of management by street trader leaders</a>. </p>
<p>For instance, the leaders have forged informal partnerships with authorities to manage trading. Some leaders assist authorities in the everyday management of street trading, such as maintaining order on the streets and allocating trading spaces. This alternative form of management strengthens the capacity of the state to govern street trading, and helps provide pragmatic solutions to complex issues.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/zimbabwes-informal-sector-plays-a-key-role-in-skills-development-but-gets-no-recognition-189178">Zimbabwe's informal sector plays a key role in skills development but gets no recognition</a>
</strong>
</em>
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<hr>
<p>But, there is also a dark side to this alternative form of management. It has in some instances opened a window for extortion of fellow traders by the leaders. </p>
<p>There are instances where they collect <a href="https://www.wits.ac.za/media/wits-university/faculties-and-schools/-engineering-and-the-built-environment/research-entities/cubes/documents/Strategies%20used%20by%20Street%20Traders%20Organisations.pdf">“protection fees”</a> from traders, promising to protect them from law enforcement officers who harass and confiscate their stock. </p>
<p>Some of the leaders even have the power to evict “non-compliant” traders and take away their officially allocated trading spaces.</p>
<h2>Looking forward</h2>
<p>The vicious cycle of street trading management in Johannesburg manifests in various ways, from evictions to limiting legal trading spaces. This is despite policies that acknowledge the role of street trading. </p>
<p>Such punitive practices criminalise the efforts of poor people to earn an honest living, and drives corruption. There is, therefore, an urgent need to find better approaches to street trading management that value the role the activity plays in job creation, poverty alleviation and mitigation of the high cost of living.</p><img src="https://counter.theconversation.com/content/190781/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mamokete Modiba previously received research support funding from NRF and TISO Foundation. </span></em></p>
The city’s street trading management approach is mainly restrictive. Relocations, harassment and confiscation of of traders’ stock are common.
Mamokete Modiba, Researcher, Gauteng City-Region Observatory
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/185551
2022-06-28T15:05:27Z
2022-06-28T15:05:27Z
The art of bribery: a closeup look at how traffic officers operate on Kenya’s roads
<figure><img src="https://images.theconversation.com/files/470320/original/file-20220622-17-w9xvh5.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">General Service Unit officers, part of Kenya's police service, stop a commercial vehicle at a checkpoint.</span> <span class="attribution"><span class="source">Tony Karumba//AFP via Getty Images</span></span></figcaption></figure><p>A first-time driver on Kenyan roads is likely to think that commercial and passenger service vehicles are highly regulated. Drivers are frequently stopped by police officers, who are ubiquitous along Kenya’s highways. </p>
<p>Is this evidence that the police are keeping road users safe? </p>
<p>Not necessarily. As <a href="https://www.researchgate.net/publication/358547663_The_art_of_bribery_Analysis_of_police_corruption_at_traffic_checkpoints_and_roadblocks_in_Kenya">my research</a> on police corruption at traffic checkpoints and roadblocks in Kenya shows, other factors are at play. One of them is securing bribes.</p>
<p>A number of reports on <a href="https://www.researchgate.net/publication/321952837_Police_corruption_and_the_security_challenge_in_Kenya">police corruption</a> in Kenya have been drawn up. However, first-hand data on corrupt transactions at police checkpoints and roadblocks are not easy to come by. </p>
<p>I examined the techniques, rationales and legal gaps that allow for corrupt practices and policing misconduct on Kenyan roads. </p>
<p>My research describes how corruption’s logic, practices and coded languages are developed, how actors are recruited and regulated, the inventing and concealing of evidence, establishment of players or networks, and the forming of norms and normalising of corrupt practices.</p>
<p>I call this process the art of bribery.</p>
<p>My findings into how government institutions work can provide insights into implementing policies that address corruption. </p>
<h2>Partners in crime</h2>
<p>In Kenya’s traffic stops, bribery is a means to cope and fit within the elaborate network in the police hierarchy. It is an outcome of indoctrination by older timers. There are set rules of the game, some of which are not clearly defined or are loosely regulated. </p>
<p>Motorists pay bribes to circumvent traffic regulations, while the police maximise illicit incomes for personal and institutional gains. Dissidence is rare and may come at a great cost, especially within the police service. But even if dissent occurs in the form of whistleblowing, no significant punishment is meted out on the culprits.</p>
<p>Even though this state of affairs paints a grim image of the police, motorists are equal partners in this corruption racket, especially when they fail to comply with traffic regulations on issues like vehicle loads or speed limits.</p>
<p>Kenya’s unstructured public transport sector and confusing traffic regulations exacerbate bribery at checkpoints, creating a corruption complex that draws in the police and motorists. </p>
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<strong>
Read more:
<a href="https://theconversation.com/boda-bodas-are-critical-to-kenyas-transport-system-but-theyve-gone-rogue-179234">Boda bodas are critical to Kenya's transport system. But they've gone rogue</a>
</strong>
</em>
</p>
<hr>
<p>My research was based on an ethnographic study involving police officers and operatives of passenger service vehicles (called matatus) on selected busy routes: Nairobi-Nakuru, Nakuru-Kisumu and Kisumu-Migori. A documentary analysis of secondary data, like <a href="https://www.afrobarometer.org/countries/kenya/">Afrobarometer</a> survey findings and statutory and media reports, complemented the primary data. </p>
<p>When asked how bribes are distributed or divided among the police, one police respondent stated: <em>“Hiyo inaenda mbali na hukuliwa na watu wengi, hata wakubwa.”</em> Translated, this means that collected bribes move along the hierarchy to high-ranking beneficiaries at police headquarters. </p>
<p>This suggests that police corruption in Kenya flows within personal and corporate networks that uniquely bring together lower cadre and major players in the police service. These networks are loosely latched onto a well-established and institutionalised culture of corruption. </p>
<p>In interviews, one officer painted a hopeless picture regarding the application of oversight mechanisms in Kenya’s capital, Nairobi, when he mentioned that they sometimes ‘eat’ (share bribes) with some <a href="https://eacc.go.ke/default/">Ethics and Anti-Corruption Commission</a> officials. </p>
<p>Additionally, seasoned players indoctrinate newcomers. As in most conventional corruption situations, unequal power relations and coercion are the primary drivers. </p>
<p>There are also police officers, mainly base commanders, on retainer payments. Here, owners of vehicle fleets pay bribes in exchange for ‘protection’ or to maintain good relations. The bribery network also involves court officials and magistrates. This turns court corridors into corruption negotiation spaces. </p>
<h2>The rules of the game</h2>
<p>The rules are clear: don’t involve oversight institutions or lawyers when dealing with the police. Police officers are averse to matatu owners and operatives who think they’re connected and know the law. </p>
<p>The same applies to acts of dissent within the service. The police officers I interviewed mentioned professional witchhunts and victimisation as outcomes of whistleblowing. </p>
<p>For motorists, the legal landscape is too time-consuming and costly to effect their agency against police corruption. Matatu owners reported that their vehicles were targeted or their drivers frustrated after a court process, resulting in a difficult, if not impossible, environment to run a business. </p>
<p>Police recruits are advised or socialised on ‘how things are done here’. In this way, institutional structures and culture reinforce corrupt practices. </p>
<p>When a motorist stopped at a roadblock, a lot could happen. The police officer may decide to impound the vehicle and confine it to a station. This is a route many motorists detest because it shifts the grounds of negotiation in favour of the police. </p>
<p>This is because, first, the police are in custody of the vehicle. Second, it involves a bigger fish, such as a base commander, and the issue could end up in court. Third, one’s offences may change or take a different dimension by the time the case gets to court. </p>
<p>Considering the punitive nature of Kenya’s traffic legislation, many motorists make the choice to bribe at the roadblock. </p>
<p>Essentially, bribery incomes have become a source of livelihood for many police officers. As one police respondent in my research stated: </p>
<blockquote>
<p>Ukiangalia vile tunaishi (If you consider how we live), we live in shacks around here. There is no water sometimes and the rooms are suffocating … to make it worse, the salary is not adequate given the Kenya of today. What do you expect me to do? </p>
</blockquote>
<h2>The way forward</h2>
<p>My research found that corrupt exchanges are regulated by the taken-for-granted rules of the game. These legitimise police misconduct, curtail detection and define the scales of bribery. </p>
<p>Likewise, there are socialisation and rationalisation processes among motorists and police officers that lead to non-responsiveness in reporting police misconduct. Furthermore, stricter traffic laws and costly penalties could perpetuate rather than reduce police corruption. </p>
<p>Tackling police corruption, therefore, lies in addressing the broader deficits that hamper the rule of law in Kenya. Corruption is a function of a lack of adequate legislation, and poor quality of police service personnel and public leadership. </p>
<p>The professionalisation of the police should begin by recruiting and attracting highly qualified and educated individuals. This will change the <a href="https://www.pulselive.co.ke/news/local/police-respond-to-senator-malala-after-claiming-the-nps-comprises-school-dropouts/xhnye5p">current narrative</a> that portrays the police service as a den of academic underperformers only known for <a href="https://www.researchgate.net/publication/270706657_The_Achilles'_Heel_of_Police_Reforms_in_Kenya">dispensing brute force</a> on the citizenry as in colonial days. </p>
<p>Raising the academic competency of the service will steer it toward becoming an intelligent organisation and transform its image. It will also be able to address current political neglect in the forms of under-remuneration and poor living conditions for police officers. </p>
<p>Finally, professionalising the force will create an enabling environment for the <a href="https://theconversation.com/kenya-has-tried-to-reform-its-police-force-but-its-left-gaps-for-abuse-176044">ongoing police reforms</a>, which seek to improve the institution’s effectiveness. </p>
<p>The government must ensure intensive training of the police on the rule of law and citizen rights, conduct public awareness campaigns, and create a less costly and burdensome justice system. This calls for effective collaboration and coordination among state agencies, including oversight agencies and the judiciary.</p><img src="https://counter.theconversation.com/content/185551/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gedion Onyango does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Police checkpoints liberally dot Kenya’s highways, but they’re not just about keeping road users safe.
Gedion Onyango, Senior Lecturer, University of Nairobi
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/163835
2022-04-12T13:53:03Z
2022-04-12T13:53:03Z
Nigerian police: why improving public trust has proven difficult
<figure><img src="https://images.theconversation.com/files/421101/original/file-20210914-23-118ua0b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Hakeem Odumosu, former Lagos State Police Commissioner, addressing journalists during a protest in Lagos. </span> <span class="attribution"><span class="source">Adeyinka Yusuf/Majority World/Universal Images Group/Getty Images)</span></span></figcaption></figure><p>Policing plays a vital role in maintaining law and order in any society. Public trust and confidence in the police is a concern in many parts of the world. </p>
<p>In the United Kingdom, for example, perceived <a href="https://committees.parliament.uk/publications/3376/documents/32359/default/">institutional racism</a> and police bias against black and ethnic minority groups seem to undermine confidence in the police force. <a href="https://www.gov.uk/government/statistics/police-powers-and-procedures-england-and-wales-year-ending-31-march-2018">Statistics</a> from the UK Home Office (2018) suggest that black people are nearly ten times more likely to be stopped and searched than their white counterparts. </p>
<p>In Nigeria, too, public trust in the police seems to be low, as shown in <a href="https://research.tees.ac.uk/en/publications/public-perspectives-of-interventions-aimed-at-building-confidence">various studies</a>. The <a href="https://nairametrics.com/wp-content/uploads/2013/02/police-community-violence.pdf">roots</a> of the problem go back to the way the police treated the public during the colonial era. </p>
<p>The deteriorating relationship was demonstrated in the grievance behind the <a href="https://www.bbc.com/news/world-africa-58817690">#EndSARS protest</a> in October 2020. <a href="https://onlinelibrary.wiley.com/doi/abs/10.1002/pa.2583">Demonstrators</a> came out in their thousands, calling for restitution and justice for victims of police brutality and extra-judicial killing. </p>
<p>The protest undoubtedly stemmed from pent-up dissatisfaction with a policing system <a href="https://research.tees.ac.uk/en/publications/public-perspectives-of-interventions-aimed-at-building-confidence">marred</a> by corruption, arbitrary arrest, torture and lack of accountability. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-disbanding-the-notorious-anti-robbery-squad-wont-stop-bad-policing-in-nigeria-147934">Why disbanding the notorious anti-robbery squad won't stop bad policing in Nigeria</a>
</strong>
</em>
</p>
<hr>
<p>Attempts have been made to bridge the trust gap between the police and the public. These include community policing and the use of complaint channels. But there hasn’t been much of an effort to assess what the police and the public in Nigeria think of the interventions that were intended to improve the relationship. </p>
<p>We conducted <a href="https://www.tandfonline.com/doi/pdf/10.1080/18335330.2021.1892167?casa_token=4ZjEOFZCQOIAAAAA:Cl21IbnWJGSZ_HOP1nsli4PFfu7cQ14PLyjYI5POb21WMv4HoWHAKHn6L_dHNTSAVD5R3zf29QOxbv8">a review of studies</a> in this area since 2010 and found several themes: </p>
<ul>
<li><p>scepticism and mistrust in the police </p></li>
<li><p>unfair treatment of people by the police </p></li>
<li><p>perceived ineffectiveness of community policing interventions. </p></li>
</ul>
<p>The findings could help inform policies aimed at improving police effectiveness and public confidence in the police. Public support is particularly important in view of the fact that the police have limited personnel. </p>
<p>According to the <a href="http://www.ipsa-police.org/images/uploaded/Pdf%20file/WISPI%20Report.pdf">World Internal Security and Police Index 2016</a> report, there are only 219 police officers for every 100,000 Nigerians. Nigeria was the worst performer in the index, which has a median of 300 officers per 100,000 people and an average of 268 for the sub-Saharan Africa region.</p>
<h2>Nigerian studies</h2>
<p>We reviewed 11 studies about interventions to improve public trust in the Nigerian police. Some explored the factors limiting the efficacy of interventions, and some explored the perceptions of people who had been victims of police violence.</p>
<p>These studies brought up common issues. Firstly, there was widespread scepticism about and lack of trust in the police in Nigeria, especially in relation to interventions such as community policing and countering insurgencies. </p>
<p>For instance, one <a href="https://www.researchgate.net/publication/341792877_Community_Policing_Approach_Joint_Task_Force-Community_Relations_in_the_context_of_CVE_in_Nigeria">study</a> examined security agents’ relations with communities in countering violent extremism and found that the community perceived the police as compromised.</p>
<p>Communities felt it was risky to assist the security agencies in countering violent extremism. They felt their identities might be exposed, leading to further harm. </p>
<p>Studies also found that scepticism and mistrust arose from corruption.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/421162/original/file-20210914-25-100m6v8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man wearing a police uniform talks and points towards a man in black t-shirt, holding a megaphone." src="https://images.theconversation.com/files/421162/original/file-20210914-25-100m6v8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/421162/original/file-20210914-25-100m6v8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=410&fit=crop&dpr=1 600w, https://images.theconversation.com/files/421162/original/file-20210914-25-100m6v8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=410&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/421162/original/file-20210914-25-100m6v8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=410&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/421162/original/file-20210914-25-100m6v8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=515&fit=crop&dpr=1 754w, https://images.theconversation.com/files/421162/original/file-20210914-25-100m6v8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=515&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/421162/original/file-20210914-25-100m6v8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=515&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A police officer talks to a leader of a rally during a demonstration in Lagos.</span>
<span class="attribution"><span class="source">Pius Etomi Ekpei/AFP/Getty Images</span></span>
</figcaption>
</figure>
<p>Secondly, our review found that people perceived the police as unfair in the way they carried out their <a href="https://livrepository.liverpool.ac.uk/3002254/1/200817963_July2016.pdf">duties</a>. Community members felt the police were more inclined to act favourably to elites than ordinary <a href="https://www.tandfonline.com/doi/abs/10.1080/18335330.2021.1892167?journalCode=rpic20">Nigerians</a>. </p>
<p>We also discovered that the Nigerian civilians most likely to experience the heavy-handedness of the police force were in low socioeconomic groups and impoverished regions of the country. </p>
<p>The public perceives that the police often require a person reporting a crime to finance any investigation. Such a view of policing alienates the police from the public. It suggests a need for reform in the professional ethics of the police.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-ghana-and-nigeria-police-handle-domestic-violence-cases-150756">How Ghana and Nigeria police handle domestic violence cases</a>
</strong>
</em>
</p>
<hr>
<p>Thirdly, the review of studies highlighted that community policing <a href="https://www.sascv.org/ijcjs/pdfs/Ayodele&Aderintoijcjs2014vol9issue1.pdf">interventions</a> were perceived as ineffective. Part of the reason was the manners, demeanour or etiquette of the police. </p>
<p>Studies also found that the police, in turn, had little trust in the public.</p>
<h2>Security void</h2>
<p>The lack of trust and confidence in the police that these studies point to appears to imply that there is a security void. The risk is that it could be filled by alternative sources of security such as vigilantes and <a href="https://www.semanticscholar.org/paper/Community-Policing-and-Crime-Control-in-Isiala-Area-Doris-Anyaoha/e90be87b9ac1d57be6920f776c2ff55d340ba119">militias</a>. </p>
<p>The public’s lack of confidence in the police might lead to their inability to support the police in combating crime. It could also lead to an alienated police force. </p>
<p>Policymakers are encouraged to realise that a growing body of research highlights the Nigerian public’s widespread alienation from the police. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/social-media-could-help-lagos-police-officers-fight-crime-why-its-not-happening-139344">Social media could help Lagos police officers fight crime: why it's not happening</a>
</strong>
</em>
</p>
<hr>
<p>Even when the police try to improve their relationship with the public, they are sometimes perceived as compromised and open to bribery. </p>
<p>Building trust will require addressing perceptions of corruption. The police service must treat all members of society equally regardless of their social standing or income. Policing is also more effective when the public consent to police services – which can be encouraged through better etiquette.</p><img src="https://counter.theconversation.com/content/163835/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tarela Juliet Ike does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Public trust and confidence in the police is a concern in many parts of the world. How can Nigeria get it right?
Tarela Juliet Ike, Lecturer in Criminology and Policing, Teesside University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/173014
2021-12-13T14:23:09Z
2021-12-13T14:23:09Z
Checkpoint ‘taxes’ make South Sudan one of the most expensive places to move goods
<figure><img src="https://images.theconversation.com/files/436343/original/file-20211208-25-xyxw7x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Checkpoint in rural South Sudan. This has been set up by government security forces.
</span> <span class="attribution"><span class="source">iStock /Getty Images Plus</span></span></figcaption></figure><p>When South Sudan became independent 10 years ago, oil revenues were supposed to <a href="https://www.un.org/africarenewal/web-features/new-nation-born">fuel</a> the economy of the world’s newest country. But shortly after, civil war <a href="https://www.cfr.org/global-conflict-tracker/conflict/civil-war-south-sudan">resumed</a>, oil prices <a href="https://blogs.worldbank.org/developmenttalk/what-triggered-oil-price-plunge-2014-2016-and-why-it-failed-deliver-economic-impetus-eight-charts">plummeted</a>, and the South Sudanese pound <a href="https://blogs.worldbank.org/africacan/taming-the-tides-of-high-inflation-in-south-sudan">lost value</a>. </p>
<p>While elites in Juba <a href="https://www.crisisgroup.org/africa/horn-africa/south-sudan/305-oil-or-nothing-dealing-south-sudans-bleeding-finances">split</a> the remaining oil revenues, ground-level civil servants, soldiers and rebels have to get by in other ways. They complement their absent or deflated salary through decentralised predation on long-distance trade. As a result, since independence in 2011, the number of checkpoints <a href="https://ipisresearch.be/publication/checkpoint-economy-the-political-economy-of-checkpoints-in-south-sudan-ten-years-after-independence/">has nearly doubled</a> and checkpoint taxes have increased by 300%. These ‘transit taxes’, as they are locally called, are mostly illegal. But in the absence of a functioning taxation system and as a legacy of decades of conflict, ‘government’ has become a financing enterprise, extracting cash from aid and trade. Indeed, any army deployment in practice is accompanied by setting up a checkpoint to feed the troops. Faced with a gun, transporters can do little else than pay up. </p>
<p>Over the past two years, we have <a href="https://ipisresearch.be/publication/checkpoint-economy-the-political-economy-of-checkpoints-in-south-sudan-ten-years-after-independence/">mapped</a> 319 checkpoints along major trade routes in South Sudan, of which 253 (79%) are roadblocks and 66 (21%) river checkpoints. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/436655/original/file-20211209-25-flcuba.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/436655/original/file-20211209-25-flcuba.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/436655/original/file-20211209-25-flcuba.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=424&fit=crop&dpr=1 600w, https://images.theconversation.com/files/436655/original/file-20211209-25-flcuba.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=424&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/436655/original/file-20211209-25-flcuba.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=424&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/436655/original/file-20211209-25-flcuba.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=533&fit=crop&dpr=1 754w, https://images.theconversation.com/files/436655/original/file-20211209-25-flcuba.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=533&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/436655/original/file-20211209-25-flcuba.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=533&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Checkpoints in South Sudan.</span>
</figcaption>
</figure>
<p>Examining these checkpoints is important because they sit at the heart of South Sudan’s war economy. Taxation is intimately related to state-building, and understanding how taxation works in practice therefore provides a unique window into the political economy of a country. For the South Sudanese government, allowing security services to engage in systematic illegal taxation is a cheap way of buying loyalty and gaining a weak but pervasive military presence along the country’s battered road network. But checkpoint taxes raise the price of aid delivery, make life expensive for poor South Sudanese, and stifle the domestic market for farming products.</p>
<h2>The world’s most expensive roads</h2>
<p>Government soldiers and civil authorities control most of the checkpoints along overland routes. The Sudan People’s Liberation Movement in opposition, led by Riek Machar, controls slightly more than half of the checkpoints along river routes: the White Nile, its branch the El Zeraf, and the Sobat.</p>
<p>Based on averages, a typical checkpoint in South Sudan is manned by six people sharing three visible weapons among them, and levies about SSP 48,000 (US$80). But as vehicles typically travel long distances, total checkpoint taxes for a trip can be enormous. </p>
<p>Take the White Nile. Barges typically shuttle between Bor and Renk carrying around 300 to 400 metric tons of humanitarian aid or foodstuff. For the entire return journey each barge will pay about US$211 at each of the 33 checkpoints, totalling a stunning US$10,000 for a round trip. </p>
<p>Similarly, while checkpoints on the road between Juba and Bentiu on average charge a truck about US$21, the total journey involves passing 80 checkpoints —- meaning a return journey easily costs over US$3,000 in checkpoint taxes. This makes transport in South Sudan among the most expensive in the world, with a price per metric tonne <a href="https://ipisresearch.be/wp-content/uploads/2021/12/2021-South-Sudan-Checkpoint-Economy-Full-Report.pdf">only rivalled</a> by <a href="https://docs.wfp.org/api/documents/WFP-0000023099/download/">Afghanistan and the Democratic Republic of Congo</a>.</p>
<h2>Living off the road</h2>
<p>On the one hand, checkpoints make for a practical way for soldiers and civil servants to complement their absent, delayed or inflated salaries. As one soldier explains,</p>
<blockquote>
<p>We should be paid every month. The food we’re getting — you wouldn’t even eat it. We live in poor health. Most of us survive only from the transit taxes we enforce on traders.</p>
</blockquote>
<p>Soldiers like him earned a salary fixed in 2011 at SSP 1500, then worth about US$200. Today, that amount is only worth US$3. At every deployment, the first thing the army will do is raise a checkpoint to provide for subsistence. Explains one soldier, </p>
<blockquote>
<p>I am happy here, as the daily collections I make here are far better than my salary. On a good day I can get US$25, while my monthly salary is US$3 and it doesn’t even come on time.</p>
</blockquote>
<p>However, a big part of the checkpoint profits is channelled upwards the chain of command in opaque ways. As one checkpoint commander explained:</p>
<blockquote>
<p>As for us who runs a checkpoint, we don’t consume all the informal taxes alone, but give to our own superiors. And that happens weekly or we even visit them in the evenings at their residence and give them in order to retain your duty post.</p>
</blockquote>
<p>Like in <a href="https://ipisresearch.be/roadblock-rebels-ipis-maps-important-mechanism-conflict-funding-central-africa/">other Central African countries</a>, checkpoint commanders get to maintain lucrative posts if they reward their superiors with a cut of the money, who in turn have to pay their own superiors. In this way, checkpoints are a mechanism to transfer wealth from the commercial sector to politico-military elites, a symptom of a predatory war economy. </p>
<h2>Side effects</h2>
<p>A side-effect of high checkpoint taxes is that it’s not profitable to sell agricultural products such as sorghum over long distances, stifling the domestic economy.</p>
<p>On the other hand, checkpoints are also a form of self-help for local government officials, in a context where those in the capital don’t redistribute the national budget to local government. We found county representatives autonomously mounting checkpoints to raise revenue from trade passing through their county, against the orders from Juba. While understandable, on a whole such strategies lead to a proliferation of checkpoints and ballooning of transport costs. </p>
<p>Another problem is the implication of humanitarian organisations in the checkpoint economy. The international community finances humanitarian relief and peacekeeping to a level of <a href="https://www.thenewhumanitarian.org/maps-and-graphics/2019/10/09/ten-donors-and-10-crises-dominate-humanitarian-spending">US$1.4 billion</a> annually (or 7% of all global humanitarian spending), an important influx of resources in a cash-strapped economy. It should not come as a surprise that bulk transport of humanitarian relief figures as a major source of checkpoint revenues across the country. </p>
<p>Humanitarian logistics makes up a big part of the transport sector in South Sudan, with aid agencies outsourcing food deliveries and other bulk transport to national or regional trucking companies. We found that these subcontractors are systematically taxed at 157, or 49%, of all South Sudanese checkpoints. </p>
<p>This means that scarce aid money is appropriated by South Sudan’s soldiers and rebels, ending up in the pockets of military elites. Locals in Juba often gist, ‘aid is the new oil’. Large volumes of humanitarian relief travelling overland may also constitute a factor driving the checkpoint phenomenon, as they constitute stable sources of revenue as well as flows of food that can be used strategically in struggles for control over people.</p>
<p>Early in 2021, the Dinka Jieng Council of Elders, a group that advocates for the rights of the Dinka community, <a href="https://www.sudanspost.com/jieng-council-of-elders-statement-on-south-sudan-crisis/">stated</a> that ‘corruption in South Sudan is the driver of political competition and hence the war’, fuelling fragmentation of elites as well as ground troops. The long-distance transport of bulk trade and aid, which because of the volumes involved represent concentrated wealth, sits at the heart of South Sudan’s militarised political economy. </p>
<p>Given South Sudan’s long history of conflict, it is likely that checkpoints are an endemic phenomenon, and that they will remain a key interface between international trade, aid and parties to conflict in the country.</p><img src="https://counter.theconversation.com/content/173014/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Barges transporting goods can end up paying up to US$10,000 in taxes for one trip.
Peer Schouten, Senior researcher, Danish Institute for International Studies
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/171311
2021-11-05T14:28:41Z
2021-11-05T14:28:41Z
South Africa’s local government is broken: could the 2021 election outcomes be the turning point?
<figure><img src="https://images.theconversation.com/files/430506/original/file-20211105-10010-1o3i5eq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Supporters of main opposition Democratic Alliance wave the national flag ahead of the 2021 local elections. </span> <span class="attribution"><span class="source">EFE-EPA/Kim Ludbrook</span></span></figcaption></figure><p>South Africa’s <a href="https://results.elections.org.za/dashboards/lge/">2021 local government elections</a> are set to go down in history as a watershed moment in the country’s politics. Electoral support for the African National Congress (ANC) dropped below 50% for the first time since the party ascended to government 27 years ago. Although it won <a href="https://www.gov.za/speeches/glen-mashinini-final-results-municipal-elections-4-nov-2021-0000">161</a> of the 213 contested municipalities, the number of councils without a clear majority of any party nearly quadrupled from 18 to 70.</p>
<p>A significant portion of voters stayed away from voting stations. Most were former ANC voters, <a href="https://www.kas.de/documents/261596/10543300/The+South+African+non-voter+-+An+analysis.pdf/acc19fbd-bd6d-9190-f026-8d311078b670?version=1.0&t=1608">continuing the trend from previous elections</a>.</p>
<p>Counting all eligible voters rather than only those who registered, voter withdrawal has reached a critical level. Less than a third of eligible voters –- 12 million out of 42.6 million -– <a href="https://www.gov.za/speeches/glen-mashinini-final-results-municipal-elections-4-nov-2021-0000">made their crosses</a>. Rather than apathy, this represents a “deliberate” stayaway vote, as the political analyst Moeletsi Mbeki <a href="https://www.enca.com/analysis/sas-crisis-wont-be-solved-soon-moeletsi-mbeki">has argued</a>.</p>
<p>This concerted withdrawal should be read against the results of a recent survey by <a href="https://afrobarometer.org/">Afrobarometer</a>, an independent pan-African surveys network. It found that local councils garnered the least trust <a href="https://afrobarometer.org/sites/default/files/publications/Dispatches/ad474-south_africans_trust_in_institutions_reaches_new_low-afrobarometer-20aug21.pdf">out of 17 institutions in South Africa</a>. </p>
<p>Almost three-quarters –- 72% –- of respondents trust local councils “a little or not at all”.</p>
<p>This staggeringly low level of trust has to do with deepening socioeconomic misery. The South African economy was in recession before the COVID-19 pandemic. The economic destruction caused by the pandemic has pushed the <a href="https://www.aljazeera.com/economy/2021/8/24/south-africas-unemployment-rate-is-now-the-worlds-highest">unemployment rate to 44.4%</a>, when using the expanded definition that includes jobless people who have ceased seeking work.</p>
<p>The everyday struggle to survive becomes even harder in the face of a terminal deterioration in the provision of basic services by municipalities, such as water and sanitation, combined with corruption and infrastructural collapse that pose further threats to lives and livelihoods.</p>
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Read more:
<a href="https://theconversation.com/south-african-voters-are-disillusioned-but-they-havent-found-an-alternative-to-the-anc-171239">South African voters are disillusioned. But they haven't found an alternative to the ANC</a>
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<p>A truism oft heard from politicians is that government cannot solve South Africa’s problems by itself. But what to do with a government that places impediments in the way of its citizens? This reality at local government level needs to be fixed for South Africans to regain their trust in the democratic process.</p>
<h2>Local government is broken</h2>
<p>More than half of people canvassed by market research group Ipsos believe that local governments <a href="https://www.enca.com/press-release/party-over-urgent-delivery-key">do not work optimally</a>. Voter perception of malfunctioning municipalities is confirmed by the oversight <a href="https://www.agsa.co.za/Portals/0/Reports/MFMA/201920/2019%20-%2020%20MFMA%20Consolidated%20GR.pdf">reporting of the Auditor-General</a>, Tsakani Maluleke.</p>
<p>She reported irregular expenditure of R26 billion (US$1.7billion) at municipalities in the 2019 to 2020 financial year. Only 27 out of the country’s 257 municipalities received clean audits. Moreover, 57 of municipalities failed to even submit the legally required audits.</p>
<p>Maluleke pointed to a lack of monitoring and supervision underpinning a lack of accountability, with resources being mismanaged and services not provided as they should be. </p>
<p>The Auditor-General’s conclusions accord with voter perceptions. The Ipsos survey found that almost a quarter of respondents thought that local councillors were incompetent or corrupt.</p>
<p>The perception of incompetence is further borne out by a <a href="https://www.ber.ac.za/knowledge/pkviewdocument.aspx?docid=15008">recent study</a> by the Bureau for Economic Research. It revealed that only about half of senior government officials and financial managers had qualifications appropriate to the posts they held.</p>
<p>The ANC’s controversial policy of <a href="https://www.researchgate.net/publication/321223498_The_African_National_Congress_ANC_and_the_Cadre_Deployment_Policy_in_the_Postapartheid_South_Africa_A_Product_of_Democratic_Centralisation_or_a_Recipe_for_a_Constitutional_Crisis">“cadre deployment”</a> plays a significant factor. The policy entails appointing party apparatchiks to key state positions. Selection is not done transparently. The result is civil servants deeming themselves to be accountable to the party rather than to voters.</p>
<p>This leads to incompetent people being put in charge of finances, including income management, debt collection and municipal projects. The Bureau for Economic Research found operational budgets were over-spent, while capital expenditure stalled at the 2009 level.</p>
<p>As a result, environmental and health catastrophes have hit many municipalities, including raw sewage polluting drinking water.</p>
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<strong>
Read more:
<a href="https://theconversation.com/south-africas-local-elections-new-entrants-likely-to-be-the-big-winners-170804">South Africa's local elections: new entrants likely to be the big winners</a>
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<p>The geographically central province of the Free State, a water catchment area, <a href="https://www.ufs.ac.za/templates/news-archive/campus-news/2021/june/research-to-fight-water-pollution-in-the-eastern-free-state">is in dire straits</a>. Residents in small towns, <a href="https://www.iol.co.za/saturday-star/news/day-and-night-we-smell-it-sewage-spills-make-life-hell-for-deneysville-residents-8e066221-2e91-4801-a2f0-a59d490c9c28">from the northern</a> to the <a href="https://www.sabcnews.com/sabcnews/free-state-community-up-in-arms-over-constant-sewage-spills/">southern parts</a> of the province, have struggled for years with untreated human waste and other pollution flooding residential areas.</p>
<p>The crucial <a href="https://www.britannica.com/place/Vaal-River">Vaal River</a>, the border between the economic heartland of Gauteng province and the Free State, has become severely contaminated. As one of only three major rivers in a water-scarce country, it provides drinking water to <a href="https://www.groundwork.org.za/Documents/water/The_Vaal_Inquiry_Final_Report_15022021_MHP.pdf">45% of Gauteng’s population</a>. Apart from the risk to human health, scarce fish species have been pushed close to extinction.</p>
<p>The disaster is due to perennial failure on the part of the Emfuleni municipality to sustain <a href="https://www.dailymaverick.co.za/article/2021-10-29-a-story-of-south-africa-emfuleni-residents-fed-up-with-vaal-river-pollution-inertia/">maintenance at its wastewater treatment plants</a>. </p>
<p>In a similar case, the Kgetleng Residents Association in Koster, North West province, won their <a href="https://cer.org.za/virtual-library/judgments/high-courts/kgetlengrivier-concerned-citizens-another-v-kgetlengrivier-local-municipality-others-interim-order-and-agreementcourt-order">court bid</a> in 2020 to take control of the municipal waterworks. The high court found that the municipality had violated its constitutional obligation of supplying potable water. </p>
<p>This is one among a number of cases in which residents step in where municipalities fail. But, as the Socio-Economic Rights Institute <a href="https://www.ber.ac.za/knowledge/pkviewdocument.aspx?docid=15008">argues</a>, this is not a sustainable solution.</p>
<p>Companies that attempted to bear the overwhelming costs of failing municipal services have eventually faltered. For example, one of the country’s largest poultry producers, Astral Foods, was <a href="https://www.iol.co.za/business-report/economy/treasury-gives-the-poorly-run-lekwa-municipality-three-years-to-get-its-finances-in-order-after-publishing-financial-recovery-plan-5ed746e6-a5ec-46b3-afd8-7a592b11a233">pushed into technical insolvency</a> after spending millions to compensate for the collapse in electricity and water provision in Standerton in Lekwa municipality, Mpumalanga province.</p>
<p>Infrastructure collapse has also had a major economic impact in Lichtenburg in Ditsobotla municipality, North West province. After years of engaging the local council with no result, dairy company Clover closed the country’s <a href="https://www.news24.com/fin24/companies/clover-closes-sas-biggest-cheese-factory-due-to-municipal-woes-in-the-north-west-20210608">largest cheese factory in Lichtenburg</a> and moved its operations to an existing factory elsewhere. The economically depressed region lost 330 jobs. </p>
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Read more:
<a href="https://theconversation.com/south-africas-anc-dips-below-50-but-opposition-parties-fail-to-pick-up-the-slack-171253">South Africa's ANC dips below 50%. But opposition parties fail to pick up the slack</a>
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<p>Residents’ despair is exacerbated by corruption.<a href="https://www.corruptionwatch.org.za/">Corruption Watch</a>, an NGO that tracks corruption, found that one in six reports received from whistleblowers fingered local government. Irregularities occurred in procurement and staff appointments. Bribery was a common form of corruption, amounting to an extra <a href="https://theconversation.com/how-corruption-is-fraying-south-africas-social-and-economic-fabric-80690">tax on the poor</a> for state services that remain inefficient.</p>
<h2>Political appetite</h2>
<p>Given the colossal crises besetting local government, it remains to be seen whether newly elected councillors can win back the trust of the electorate. As these crises were in many cases created by the country’s political class, many voters will be sceptical about whether the appetite even exists to turn the dismal state of local government around. </p>
<p>But perhaps the plunging election turnout – particularly shocking in a country where people struggled for democracy – may finally jolt the political elite into action.</p><img src="https://counter.theconversation.com/content/171311/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christi van der Westhuizen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The 2021 local government elections signals widespread disillusionment with representative democracy that only a sea change in service delivery can fix.
Christi van der Westhuizen, Associate Professor, Centre for the Advancement of Non-Racialism and Democracy (CANRAD), Nelson Mandela University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/156323
2021-04-13T14:41:25Z
2021-04-13T14:41:25Z
Law protecting interests of South African communities in mining deals falls short
<figure><img src="https://images.theconversation.com/files/394765/original/file-20210413-19-1x6erzj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The community of Xolobeni village, in the Eastern Cape, succeesfully challenged the mining of their land in the High Court in 2018. </span> <span class="attribution"><span class="source">Rogan Ward © Sunday Times.</span></span></figcaption></figure><p>The impact of mining operations on rural communities is a contentious issue in South Africa. There is also concern about the manner in which communities are consulted about mining on their land. </p>
<p>There is often tension between pursuing the economic benefits of mining, and protecting the socioeconomic and <a href="https://www.sahrc.org.za/home/21/files/SAHRC%20Mining%20communities%20report%20FINAL.pdf">cultural rights of people</a>. Some communities rely on the land to sustain themselves through agriculture, and for some their cultural identity is <a href="https://www.parliament.gov.za/storage/app/media/Pages/2017/october/High_Level_Panel/HLP_Report/HLP_report.pdf">tied to the land</a>. </p>
<p>South Africa has laws to safeguard the interests of communities in their dealings with mining companies. The <a href="https://www.gov.za/sites/default/files/gcis_document/201409/act31of1996.pdf">Interim Protection of Informal Land Rights Act</a> of 1996 requires that communities provide “consent” before mining operations can start. The <a href="https://cer.org.za/wp-content/uploads/2004/05/28-of-2002-MINERAL-AND-PETROLEUM-RESOURCES-DEVELOPMENT-ACT_7-Dec-2014-to-date-1.pdf">Mineral and Petroleum Resources Development Act</a> of 2002 stipulates that there must be “meaningful consultation” between mining companies and communities. </p>
<p>As my <a href="http://www.saflii.org/za/journals/PER/2020/22.html">research</a> on the case of the Xolobeni community in the Eastern Cape province shows, the Mineral and Petroleum Resources Development Act does not provide the necessary protection to communities in the awarding of licences to mine their land. </p>
<p>I noted that the new <a href="https://www.gov.za/sites/default/files/gcis_document/201911/4286528-11act3of2019tradkhoisanleadership.pdf">Traditional and Khoi-San Leadership Act</a> might not provide more protection to communities either. And it could be open to abuse. If the basic level of trust between communities and traditional leaders is not present, then legislation will not remedy injustices that occur.</p>
<h2>Challenges to community engagement</h2>
<p>In November 2018, the <a href="https://geotargit.com/index.php?qcountry_code=ZA&qregion_code=05&qcity=Xolobeni">Xolobeni</a> community <a href="http://www.saflii.org/za/cases/ZAGPPHC/2018/829.html">successfully challenged</a> the awarding of a licence to an Australian mining company to mine for titanium on their land.</p>
<p>The case concerned the level of consent required to obtain a mining right over property held by a community with informal land tenure. In South Africa communal land is <a href="https://theconversation.com/why-giving-south-africans-title-deeds-isnt-the-panacea-for-land-reform-98106">collectively owned by the community</a> in terms of customary law and managed by the tribal authority.</p>
<p>The high court <a href="http://www.saflii.org/za/cases/ZAGPPHC/2018/829.html">ruled</a> that in the case of informal land right holders, consent by the community was a requirement for obtaining a mining licence. The court’s decision followed a decade-long battle. It had pitted the community against the mining company and the traditional leaders.</p>
<p>My research, based on official documents and published accounts from the community, showed that traditional leaders or community representatives did not adequately represent the interests of the community in this case.</p>
<p>They did not consult properly with the affected members of the community, and thereby failed to adequately represent their interests. </p>
<p>Another problem is the potential for corruption. As a <a href="https://www.parliament.gov.za/storage/app/media/Pages/2017/october/High_Level_Panel/HLP_Report/HLP_report.pdf">report</a> by a legislative review panel chaired by former president Kgalema Motlanthe has found, there have been instances where leaders consented to mining in exchange for <a href="https://www.timeslive.co.za/sunday-times/business/2017-10-10-report-identifies-opportunities-for-corruption-in-mining-approval-processes/">certain advantages</a>. </p>
<p>There is also no oversight measure to ensure that communities are actually consulted properly. </p>
<h2>The Traditional and Khoi San Leadership Act</h2>
<p>In a further attempt by the legislature to address the issue of community engagement, the <a href="https://www.gov.za/sites/default/files/gcis_document/201911/4286528-11act3of2019tradkhoisanleadership.pdf">Traditional and Khoi San Leadership Act</a> was passed in 2019. Section 24 of the Act regulates the conclusion of agreements between a traditional council and private entities. It supersedes provisions of all the other laws. </p>
<p>A <a href="https://www.gov.za/sites/default/files/gcis_document/201911/4286528-11act3of2019tradkhoisanleadership.pdf">traditional council</a> is a body that administers the affairs of a rural community. It is made up of elected members of the community or traditional leaders or both. </p>
<p>The new Act doesn’t fix the problems that my research identified. Instead of placing the focus on community rights, the Act seems to reaffirm the absolute authority of traditional leaders over the community engagement process. The most affected voices within a community could once again be lost.</p>
<p>According to the Act, partnerships and agreements between mining companies and communities must benefit the communities and enjoy their majority support.</p>
<p>“Consent” by the entire community, as previously required by the Interim Protection of Informal Land Rights Act, is no longer required. The decision should merely be supported by the majority. </p>
<p>It could be difficult to determine whether there is in fact majority support for a mine. The legislation doesn’t say how this majority will be determined.</p>
<p><a href="https://www.tandfonline.com/doi/pdf/10.1080/02587203.2020.1867483?needAccess=true">According</a> to legal scholars Janine Ubink and Joanna Pickering:</p>
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<p>Legislation regulating traditional leadership, for its part, centralises the powers of senior traditional leaders without incorporating crucial accountability mechanisms inherent in customary law. </p>
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<p>It is, therefore, necessary to find measures to ensure that the process of obtaining consent for mining operations is legitimate and fair. </p>
<p>For this to happen, the actions of mining companies should be monitored more effectively by independent third parties. This is to ensure that they do engage with affected community members in a manner that gives these people a voice. </p>
<h2>Solving the problem</h2>
<p>Government might have hoped to make the process of community engagement more transparent by regulating the way mining agreements should be reached in the Traditional and Khoi San Leadership Act. But it would be misguided to think that this will be possible.</p>
<p>The Act gives too much power to traditional leaders by giving them the right to control the engagement process and decide when a sufficient level of consent has been reached. </p>
<p>In order to resolve this problem, a few practical steps need to be taken by government, traditional leaders and mining companies. Firstly, communities need to be fully aware of their rights concerning community engagement and the process that has to be followed for companies to obtain consent to mine their lands. </p>
<p>Although there have been <a href="https://cer.org.za/wp-content/uploads/2014/03/CER-Mining-and-your-Community-Final-web.pdf%5D%5Bhttps://cer.org.za/wp-content/uploads/2016/05/LRC-2016_Mining_affected_communities_Eng.pdf">initiatives</a> by civil society to inform communities of their rights, much work remains to be done in this regard. Community leaders and mining companies can also contribute to such advocacy efforts.</p>
<p>Secondly, government needs to address the matter of traditional leaders abusing their authority. If traditional leaders cannot effectively fulfil the role of intermediary between communities and mining companies, then that responsibility should be delegated. This could be done by appointing an impartial third party.</p>
<p>In general, there is a need for more transparency and accountability regarding the awarding of mining licences. This could prevent corruption and ensure the protection of communities’ rights.</p><img src="https://counter.theconversation.com/content/156323/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Yolandi Meyer does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Traditional leaders do not adequately represent the interests of rural communities in dealing with mining companies.
Yolandi Meyer, Post-Doctoral Research Fellow, University of Johannesburg
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/144716
2020-08-24T12:20:18Z
2020-08-24T12:20:18Z
Voting by mail is convenient, but not always secret
<figure><img src="https://images.theconversation.com/files/353714/original/file-20200819-42976-poyjw8.jpg?ixlib=rb-1.1.0&rect=11%2C5%2C3982%2C2694&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Not everyone who votes at home gets to do so in complete privacy.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/engineer-katherine-amoukhteh-looks-over-her-mail-in-ballot-news-photo/1052560438">Robyn Beck/AFP via Getty Images</a></span></figcaption></figure><p>Voting by mail in 2020 could be a real life-saver for American democracy, allowing tens of millions of people to participate in the election while limiting the spread of the pandemic. It’s <a href="https://www.nytimes.com/interactive/2020/08/11/us/politics/vote-by-mail-us-states.html">widely available</a>, <a href="https://news.gallup.com/poll/310586/americans-favor-voting-mail-option-november.aspx">popular</a>, <a href="https://theconversation.com/research-on-voting-by-mail-says-its-safe-from-fraud-and-disease-141847">well-protected against fraud</a> and doesn’t provide either political party with any <a href="https://www.pnas.org/content/117/25/14052">special advantage</a>. But mail-in voting carries its own risk to the integrity of the election.</p>
<p>The problem is that when people cast their ballots to be mailed in, they may not do so in complete secrecy. Our research for our forthcoming book, “<a href="https://www.wiley.com/en-us/Should+Secret+Voting+Be+Mandatory%3F-p-9781509538164">Should Secret Voting Be Mandatory?</a>” highlights exactly how crucial the secret ballot is to a healthy democracy.</p>
<h2>The erosion of ballot secrecy</h2>
<p>The voting-at-home trend in the U.S. has been <a href="https://electionlab.mit.edu/research/voting-mail-and-absentee-voting">on the rise</a> at least since the 1990s, with little controversy. In the 2016 presidential election, <a href="https://www.eac.gov/documents/2017/10/17/eavs-deep-dive-early-absentee-and-mail-voting-data-statutory-overview">a quarter of all ballots nationwide</a> were cast by mail – including in the <a href="https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx">five states</a> that have adopted all-mail voting.</p>
<p>Because of the risk of spreading – or contracting – COVID-19 by sharing indoor spaces with strangers, voting by mail has taken center stage as the 2020 election approaches. </p>
<p>But that gives up one key advantage of in-person voting at official polling places: a secure, safe environment in which every person can cast their ballot secretly.</p>
<p>The secret ballot is a deceptively simple, effective electoral institution. We believe its creation signaled the onset of true democracy. Too often taken for granted, the secret ballot remains a <a href="http://hrlibrary.umn.edu/instree/b1udhr.htm">defining</a> <a href="http://hrlibrary.umn.edu/instree/b3ccpr.htm">feature</a> of <a href="https://www.cartercenter.org/resources/pdfs/peace/democracy/des/internationallaw-assesselections-prepub.pdf">legitimate elections</a> worldwide.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/353718/original/file-20200819-24-qh9xpe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="In a street scene, two people try to buy a man's vote." src="https://images.theconversation.com/files/353718/original/file-20200819-24-qh9xpe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/353718/original/file-20200819-24-qh9xpe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=461&fit=crop&dpr=1 600w, https://images.theconversation.com/files/353718/original/file-20200819-24-qh9xpe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=461&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/353718/original/file-20200819-24-qh9xpe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=461&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/353718/original/file-20200819-24-qh9xpe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=579&fit=crop&dpr=1 754w, https://images.theconversation.com/files/353718/original/file-20200819-24-qh9xpe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=579&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/353718/original/file-20200819-24-qh9xpe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=579&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">In this 1757 depiction, agents for competing parties offer money to a rural voter.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/canvassing-for-votes-plate-ii-from-the-humours-of-an-news-photo/533392758">The Print Collector/Print Collector/Getty Images</a></span>
</figcaption>
</figure>
<h2>Perils of voting without secrecy</h2>
<p>Before modern voting procedures were created, there was a lively <a href="https://journals.sagepub.com/doi/abs/10.1177/0010414016628268">trade in votes</a>. Employers, landlords, political operatives and even clergy exerted their influence on people who had to vote by <a href="https://www.bbc.com/news/uk-politics-34987232">voice or public show of hands</a>. In places that used <a href="http://sociallogic.iath.virginia.edu/node/30">paper</a> <a href="https://www.cambridge.org/core/journals/studies-in-american-political-development/article/american-ballot-box-law-identity-and-the-polling-place-in-the-midnineteenth-century/2B09AD4E4C280D6D30CAB409D0F45F43">ballots</a>, party agents handed out pre-marked, color-coded party “tickets” and watched as voters dropped them in the ballot boxes.</p>
<p>People could be – and were – <a href="https://www.history.com/news/voting-elections-ballots-electronic">bribed and threatened</a> into voting for particular candidates, regardless of their personal views on the candidates or the issues. </p>
<p>In the mid-1850s, Australian officials created a way to protect voters from that sort of manipulation. The states of Massachusetts and New York brought the system to the U.S. <a href="https://www.history.com/news/voting-elections-ballots-electronic">in 1888</a>. The key element is preserving official control of ballots throughout the electoral process. All votes must be cast in a public space, in the security of a private booth. All voters must use a uniform ballot form listing all candidates, which is available only from election officials at the polling site. The ballot, which is not labeled with any information identifying the voter, is returned to election officials in a confidential manner, and then counted.</p>
<p>That system ensures that all voters must vote in a way that cannot be observed. And no one can prove that any single person cast any particular ballot. Even the voter cannot prove to others how he or she voted. The process makes threats and bribes useless – because there is no way to verify a voter complied.</p>
<p>The adoption of the secret ballot dramatically <a href="https://doi.org/10.1177/0010414016641977">reduced instances of electoral coercion</a>. Researchers found that indicators of electoral corruption dropped – <a href="https://doi.org/10.1177%2F0010414015626451">such as prices offered by those seeking to buy votes</a>, the <a href="https://doi.org/10.1177%2F0010414016649481">frequency of petitions challenging electoral results</a>, and the <a href="https://doi.org/10.1017/CBO9781316015360.005">rates at which incumbents are reelected</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/353721/original/file-20200819-25336-8jdmrg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A women pulls back a curtain to enter a voting booth." src="https://images.theconversation.com/files/353721/original/file-20200819-25336-8jdmrg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/353721/original/file-20200819-25336-8jdmrg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=436&fit=crop&dpr=1 600w, https://images.theconversation.com/files/353721/original/file-20200819-25336-8jdmrg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=436&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/353721/original/file-20200819-25336-8jdmrg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=436&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/353721/original/file-20200819-25336-8jdmrg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=548&fit=crop&dpr=1 754w, https://images.theconversation.com/files/353721/original/file-20200819-25336-8jdmrg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=548&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/353721/original/file-20200819-25336-8jdmrg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=548&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Since the introduction of the secret ballot, voter bribery and coercion has dropped.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/local-resident-wearing-a-mask-enters-a-voting-booth-to-cast-news-photo/1265205808">Robert Nickelsberg/Getty Images</a></span>
</figcaption>
</figure>
<h2>Bribery and coercion, but not fraud</h2>
<p>Mail-in voting still <a href="https://www.brookings.edu/policy2020/votervital/how-does-vote-by-mail-work-and-does-it-increase-election-fraud/">requires an official ballot</a>, and can still be validated and counted anonymously. That eliminates what’s commonly known as voter fraud – where someone casts a ballot on behalf of someone else.</p>
<p>But it doesn’t address outside forces influencing the authentic voter at the moment they make their decision. The voter marks the ballot outside the supervision of election monitors – often at home. It’s possible to do so in secret. But secrecy is no longer guaranteed, and for some it may actually be impossible.</p>
<p>There is not a lot of research about bribery and coercion in mail-in elections in the U.S. But <a href="http://doi.org/10.2307/420670">two surveys</a> <a href="https://doi.org/10.1080/1554477X.2014.955407">undertaken</a> taken after Oregon introduced universal vote by mail in 1998 found that as many as a third of voters completed their votes while others were present. Just 1%, or fewer, reported feeling pressured by the presence of another person. But that may still be enough to tip a close election. </p>
<p>There are other warning signs that electoral coercion remains a threat in the U.S. In recent years, impoverished and otherwise vulnerable citizens in <a href="https://www.washingtonpost.com/politics/decision2012/selling-votes-is-common-type-of-election-fraud/2012/10/01/f8f5045a-071d-11e2-81ba-ffe35a7b6542_story.html">Appalachia</a> and <a href="https://www.npr.org/2015/07/07/413463879/in-rio-grande-valley-some-campaign-workers-are-paid-to-harvest-votes">Texas</a> have been paid for their votes. In 2018, the results of a <a href="https://www.nytimes.com/2019/02/20/us/north-carolina-voter-fraud.html">North Carolina congressional election was overturned</a> because political operatives filled out ballots on behalf of voters, without their consent. </p>
<p>Those cases were identified in part because of <a href="https://www.nytimes.com/2018/12/07/upshot/mapped-why-voting-anomalies-are-impossible-to-ignore-in-north-carolina.html">anomalous patterns in requests</a> for absentee ballots across jurisdictions or <a href="https://www.csmonitor.com/USA/Politics/2017/1221/Voting-by-mail-grows-in-popularity-but-is-it-reliable">discrepancies in vote patterns</a> between absentee ballots and votes cast in person. But if all – or even many – votes are cast by mail, there will be less in-person voting to compare with. Unusual patterns that might signal trouble will be harder to spot.</p>
<hr>
<p><iframe id="S3W5O" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/S3W5O/2/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<hr>
<h2>A return to past practices?</h2>
<p>Other forces are at work, too. In 2018, Los Angeles landlords <a href="https://la.curbed.com/2018/10/5/17937754/prop-10-los-angeles-rent-control-increase">threatened tenants with rent increases</a> if a particular ballot initiative passed.</p>
<p>And in the last two presidential elections, as many as <a href="https://scholars.org/contribution/when-bosses-recruit-employees-politics-evidence-new-national-survey">1 in 4 workers</a> was approached with political information by their employer. Some of that was innocuous or nonpartisan material about registering to vote or company rules about time off to vote. But it also included employer endorsements of referenda or candidates – and even notes in employees’ paychecks <a href="https://scholars.org/contribution/when-bosses-recruit-employees-politics-evidence-new-national-survey">threatening layoffs or plant closures</a> if one particular candidate were to win. </p>
<p>Without the secret ballot system blocking landlords and company executives from monitoring tenants’ and workers’ votes, these predictions and warnings could become enforceable threats and meaningful bribes.</p>
<p>Other forms of intimidation may be even more difficult to identify. How could anyone uncover the <a href="https://www.americanprogress.org/issues/democracy/reports/2018/11/01/460377/obstacles-voting-survivors-intimate-partner-violence/">subtle – or not so subtle – influence</a> exerted at the kitchen table by an <a href="https://www.theguardian.com/commentisfree/2018/nov/19/voter-intimidation-republicans-democrats-midterm-elections">abusive spouse</a> or domineering parent, when the family sits down to vote? It <a href="https://doi.org/10.1080/1554477X.2014.955407">happens all over the world</a> in places where ballots are not secret. </p>
<p>In emerging democracies that don’t protect ballot secrecy well, as many as <a href="https://doi.org/10.1146/annurev-polisci-060514-120923">15% of voters</a> are regularly offered bribes for their votes – and almost half fear being targets of violence during elections.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/353724/original/file-20200819-24757-1onziuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Japanese Prime Minster Shinzo Abe holds a press conference." src="https://images.theconversation.com/files/353724/original/file-20200819-24757-1onziuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/353724/original/file-20200819-24757-1onziuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/353724/original/file-20200819-24757-1onziuk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/353724/original/file-20200819-24757-1onziuk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/353724/original/file-20200819-24757-1onziuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/353724/original/file-20200819-24757-1onziuk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/353724/original/file-20200819-24757-1onziuk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Japanese government is embroiled in an alleged vote-buying scandal involving the country’s 2019 elections.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Japan-Politics/7f558f6e107142aabc9a3b57a5a57a24/10/0">Rodrigo Reyes Marin/Pool Photo via AP</a></span>
</figcaption>
</figure>
<h2>Secrecy matters to voters</h2>
<p>Ballot secrecy is important to voters. Experimental studies have found that a quarter of voters <a href="http://doi.org/10.1017/S000712341200021X">did not believe their votes were kept secret</a>. A note assuring them of a secret ballot increased turnout by <a href="https://www.nber.org/papers/w17673">3.5%</a> – a little more of a boost than the <a href="https://siepr.stanford.edu/sites/default/files/publications/20-015.pdf">2% increase in voter turnout</a> that results from the convenience of voting by mail.</p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p><a href="https://secretballotatrisk.org/Secret-Ballot-At-Risk.pdf">Forty-four U.S. states have constitutional provisions</a> guaranteeing secrecy in voting; the others have statutes to the same effect. At the same time, five states now vote entirely by mail, and <a href="http://doi.org/10.1146/annurev.polisci.11.053006.190912">29 states permit no-excuse absentee</a> ballots. Some states permit voters to register as “<a href="https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx">permanent absentees</a>” who are automatically mailed ballots year after year. </p>
<p>Once voting shifts from an official polling place to the home, the ability of others to see how a person votes – to watch as a person marks their ballot and examine the ballot afterward to make sure – reopens the potential for bribery and coercion. Then employers, landlords and other power brokers could undermine a century of democratic progress, leaving voters vulnerable to domination, and destroying electoral legitimacy.</p><img src="https://counter.theconversation.com/content/144716/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Voting at home is safe from fraud and disease, but gives up a key advantage of in-person voting at official polling places: a secure, safe environment where everyone can cast their ballot secretly.
Susan Orr, Associate Professor of Political Science, The College at Brockport, State University of New York
James Johnson, Professor of Political Science, University of Rochester
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/131711
2020-06-17T16:56:30Z
2020-06-17T16:56:30Z
Airbus: flying high on the wings of corruption
<figure><img src="https://images.theconversation.com/files/342466/original/file-20200617-94078-17enfs0.jpg?ixlib=rb-1.1.0&rect=0%2C6%2C1497%2C997&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Cockpit of the Airbus A330-900.</span> <span class="attribution"><a class="source" href="https://www.airbus.com/aircraft/passenger-aircraft/a330-family/a330-900.html">P. Pigeyre/Airbus</a></span></figcaption></figure><p>On January 31, 2020, the European aerospace manufacturer Airbus agreed to pay nearly <a href="https://www.nytimes.com/2020/01/31/business/airbus-corruption-settlement.html">3.7 billion euros in fines to settle bribery charges</a> stemming from a four-year investigation by French, British, and US authorities. The investigations found that for more than a decade the firm bribed officials in 16 countries through intermediaries to buy its aircraft and satellites. France will receive the largest settlement, 2.1 billion euros, while the UK will receive nearly 1 billion, and the United States more than 500 million.</p>
<p>The case shows that European authorities have finally decided to make credible justice decisions against firms that use bribery and other forms of corruption to maintain and develop their business. It is also a learning opportunity for anyone interested in white-collar crime, and a number of theories developed by criminology researchers allow us to better understand how Airbus was able to operate so long with such impunity.</p>
<h2>Globe-spanning corruption</h2>
<p>Headquarters in Netherlands, Airbus has key operations in France, Germany, Spain and the United Kingdom. It’s one of the world’s largest manufacturers of commercial aircraft, helicopters and other high-tech products in the defence and space sectors. According to documents from the US Department of Justice, from 2008 to 2015 Airbus used its Strategy and Marketing Organization (SMO) branch to funnel <a href="https://www.justice.gov/opa/pr/airbus-agrees-pay-over-39-billion-global-penalties-resolve-foreign-bribery-and-itar-case">millions of bribes to decision-makers and influencers to obtain business deals</a>. Countries involved included the United Arab Emirates, China, South Korea, Nepal, India, Taiwan, Russia, Saudi Arabia, Vietnam, Japan, Turkey, Mexico, Thailand, Brazil, Kuwait, Colombia, South Korea, Indonesia, Sri Lanka, Malaysia, Taiwan, Ghana and Mexico.</p>
<p>When categorising white-collar crimes, a key factor is the separation between those involving individuals or a few people, and corporate cases. Given the SMO’s role, the Airbus case was clearly one of an organisational crime. SMO was a significant business unit for Airbus, with around 150 employees and an initial annual budget of 300 million US dollars. The branch was created to compile and appraise applications from potential business partners for the purpose of <a href="https://www.sfo.gov.uk/download/airbus-se-deferred-prosecution-agreement-statement-of-facts/">compliance risk assessment</a>. As a corruption machine SMO operated from 2008 to 2015, and long-term fraud implies internal learning systems in the fraudulent firm, with former employees transmitting fraud techniques to new recruits. </p>
<p>Indeed, Donald Sutherland’s <a href="https://www.thoughtco.com/differential-association-theory-4689191">theory of differential association</a> shows that certain crimes are not innate at all, but learned through contact with experienced criminals. The individuals involved in white-collar crimes are nominally respectable, or at least respected, making the crimes themselves ones that are committed by elites. That was the case with the Airbus case: the documents involve behaviour by senior executives, government and foreign officials, a board of directors, businessmen, an international-compliance officer and a general counsel.</p>
<p>A particularity of economic crime is its technical difficulty. Criminals in organisations are experts in developing systems to conceal their frauds. The techniques used by SMO could be easily included in a manual for how to pay bribes: </p>
<ul>
<li><p>Acquisition of a company belonging to an airlines executive at inflated price.</p></li>
<li><p>Acquisition of luxury estate properties for the use of an influential individual.</p></li>
<li><p>Purchase by a subsidiary based in a foreign country of shares in an entity belonging to the son of a commercial intermediary through money transferred via another country.</p></li>
<li><p>Sponsoring a sport team belonging to an airline executive.</p></li>
<li><p>Recruitment of the spouse of a key executive as a business partner using a straw company (despite the fact that the spouse had no relevant expertise).</p></li>
</ul>
<p>To cite a specific example, Chinese officials were invited to a business trip to Hawaii in 2013 with a 30-minute daily briefing about business information followed by “more important” activities such as <a href="https://www.justice.gov/opa/press-release/file/1241491/download">golf, scuba diving, horseback riding, and surfing lessons</a>.</p>
<h2>SMO: the corruption machine</h2>
<p>In addition, the criminologist <a href="https://www.journals.uchicago.edu/doi/abs/10.1086/221475">Donald Cressey</a> explained the emergence of of organisational crime by the existence of an opportunity. A typical opportunity was further described by <a href="https://www.jstor.org/stable/2094589?seq=1">Cohen and Felton</a> as the insufficient surveillance system. Thus, SMO produced fake documents and invented stories to fit international compliance requirements. SMO executives developed different techniques to look like following the best due-diligence practices without actually doing them. In a Russian case, SMO instructed an external company to conduct due diligence to evaluate the quality of a potential business partner, which in fact was in charge of paying approximately 9 million euros of bribes. To prepare the audit, the SMO International manager <a href="https://www.agence-francaise-anticorruption.gouv.fr/files/files/CJIP%20AIRBUS_English%20version.pdf">wrote to the commercial intermediary in charge of paying bribes</a>:</p>
<blockquote>
<p>“Compliance is buying the story, we now only need to ‘justify’ your past experience”, to which the commercial intermediary replied: “Sir, Yes Sir! […] I am going to try to find something to write for you ;-)”</p>
</blockquote>
<p>The external audit raised red flags about the Russian business partner: no registered office, no financial account, no ability to provide the services offered to SMO. Still, a contract was signed and money transferred.</p>
<p>In his <a href="https://www.simonandschuster.com/books/The-Division-of-Labor-in-Society/Emile-Durkheim/9781439118245">“anomie” theory</a>, French sociologist Emile Durkheim explained the importance of punishment in fixing norms of behaviour for a society. The fines Airbus paid are a “stick” that will teach the aircraft manufacturer that compliance must be respected, and they will follow now the best compliance practices. </p>
<p>In a press release, Guillaume Faury, chief executive officer of Airbus, <a href="https://www.airbus.com/newsroom/press-releases/en/2020/01/airbus-reaches-agreements-with-french-uk-and-us-authorities.html">stated</a>: </p>
<blockquote>
<p>“The agreements approved… with the French, UK, and US authorities represent a very important milestone for us, allowing Airbus to move forward and further grow in a sustainable and responsible way. The lessons learned enable Airbus to position itself as the trusted and reliable partner we want to be.”</p>
</blockquote>
<p>At the same time, Durkheim explained that a penalty is particularly important for all members of a society, who become aware of what is admissible or not. In the case of the competitors of Airbus, they too are aware that engaging in corrupt practices can have extremely painful consequences.</p><img src="https://counter.theconversation.com/content/131711/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bertrand Venard, professor at Audencia (France) and the University of Oxford (UK) is conducting several research projects about frauds such as cybersecurity and corruption. He is doing a major research project about cybersecurity behaviour, funded by the European Union (Project Number : 792137). He received funding from Anti-Corruption Commission of Bhutan. Indeed, he directed two major research projects to fight corruption in the mining industry and human resource management in the civil services of Bhutan. </span></em></p>
In January Airbus agreed to pay nearly 4 billions euros to settle bribery charges. Theories developed by criminology researchers explain how the firm was able to operate so long with such impunity.
Bertrand Venard, Professor, Audencia
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/131494
2020-02-10T12:59:46Z
2020-02-10T12:59:46Z
Will bold landmark election ruling improve Malawian democracy?
<figure><img src="https://images.theconversation.com/files/314455/original/file-20200210-109951-1rr31jh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Peter Mutharika during his inauguration as the President of Malawi last May. A court has annnulled his election. </span> <span class="attribution"><span class="source">Amos Gumulira/AFP via Getty Images</span></span></figcaption></figure><p>The Constitutional Court in Lilongwe, Malawi, recently delivered its anxiously anticipated <a href="https://www.washingtonpost.com/politics/2020/02/04/malawi-court-just-ordered-do-over-presidential-election-heres-what-you-need-know/?utm_medium=social&utm_campaign=wp_monkeycage&utm_source=twitter">ruling</a> in the much covered presidential election case. The atmosphere was tense. Many businesses had locked down, fearing rioting if the court ruled in favour of the incumbent government of President Peter Mutharika. </p>
<p>In a 10-hour long press conference, the judges read a summary of the 500-page ruling. As the reading progressed, it became increasingly clear that the outcome was unlikely to turn out in favour of the respondents – President Mutharika and the <a href="http://mec.org.mw/">Malawi Electoral Commission</a>.</p>
<p>The ruling established that the voting process had been marred by serious irregularities. The electoral commission had also failed to address complaints before announcing results. Tally sheets lacked monitor signatures, and several accepted tally sheets had been corrected using Tipp-Ex. </p>
<p>The court annulled the election and called for fresh elections within 150 days. Equally important, it established that parliament should move to properly enact section 80(2) of the <a href="https://www.constituteproject.org/constitution/Malawi_2017.pdf?lang=en">constitution</a>, effectively changing the Malawian electoral system. </p>
<p>That means a president will need a 50+1 majority of votes. Simply winning more votes than your competitors will no longer be enough. Throughout Malawi’s last parliamentary term, the governing Democratic Progressive Party actively tried to frustrate any attempts at such fundamental electoral reform.</p>
<p>The court’s decision was undoubtedly bold. Throughout Africa, courts have largely shown a conspicuous reluctance to rule against powerful <a href="https://www.ingentaconnect.com/content/cuny/cp/2011/00000043/00000002/art00003">incumbents</a>. Governments have frequently meddled with the independence of the judiciary. This is done using strategic appointments and dismissals, threats, and bribes. On this occasion, Malawi was no exception. Days before the court ruling, a well-known banker was arrested for allegedly attempting to <a href="https://www.aljazeera.com/ajimpact/top-malawi-banker-arrested-election-bribery-case-200123104336920.html">bribe</a> the judges. </p>
<p>The court’s impressive show of independence stands in great contrast to neighbouring Zambia. There the Constitutional Court came in for intense criticism for its handling of a presidential petition after the country’s contentious <a href="https://journals.sagepub.com/doi/pdf/10.1177/000203971605100306">2016</a> election. </p>
<p>Zambia’s Constitutional Court dismissed the petition on a technicality and the opposition was refused the opportunity to have its petition heard. Esteemed law <a href="https://www.lusakatimes.com/2016/09/11/professor-muna-ndulo-launches-scathing-attack-three-constitutional-court-judges/">Professor Muna Ndulo</a> concluded that the judgement </p>
<blockquote>
<p>had completely undermined the integrity of the Court and exposed some of the judges as either incompetent or partial or both.</p>
</blockquote>
<h2>Precedent</h2>
<p>Perhaps most importantly, the Malawian court ruling was hugely aspirational. The country has not seen any real democratic growth since the introduction of multiparty democracy <a href="https://muse.jhu.edu/article/192998/summary">in 1994</a>. Looking at widely used global democracy indices, Malawi’s level of democracy has not improved in the last <a href="https://docs.google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnxtaXdhaG1hbjF8Z3g6N2JjYTQ5NGM0MDIyNTM5Ng">25 years</a>. And, according to <a href="https://mwnation.com/afrobarometer-survey-rates-malawi-democracy/">Afrobarometer</a>, the independent African research network, most Malawians are not satisfied with the way their democracy works. </p>
<p>The problems encountered in 2019 were not unique to this particular election. Many people will remember the veritable chaos that characterised the elections of <a href="https://journals.sagepub.com/doi/abs/10.1177/000203971505000106">2014</a>. </p>
<p>Perhaps even more than in 2019, the 2014 elections were marred by administrative errors, logistical collapse, and even fatal violence. No election is free from irregularities. But with this ruling the Malawian Constitutional Court has joined in with the public to demand more from the country’s democracy.</p>
<p>The ruling places the country within a small group of African states where courts have taken the drastic step to annul a popular election. It has only happened twice previously – in Cote d’Ivoire in <a href="https://www.bbc.com/news/world-africa-11913832">2010</a> and Kenya in <a href="https://www.tandfonline.com/doi/pdf/10.1080/17531055.2019.1594072?casa_token=12umus5HdbsAAAAA:JLWOKS2unWmKwSGn3Ix30mnL2Q5aZf9I_OIVi1w5NWANfC6nwc3me7nzv_kSi0X-9kplaGNnx3Lw">2017</a>. </p>
<p>One particularly interesting aspect of the Malawian court’s ruling was frequent references to the famous Kenyan ruling. With progressive rulings in countries such as Kenya and Malawi, Africa is developing more legal precedence on how to deal with immensely complicated election disputes.</p>
<p>Democrats around the continent may also find inspiration from the broad civil society coalition that has maintained pressure on political institutions throughout the process. Since the controversial election, frequent, large, and mostly peaceful <a href="https://www.cambridge.org/core/books/political-protest-in-contemporary-africa/BF397537A3CF5CA13037CFF4A8DFB1E2">demonstrations</a> have been held across Malawi. Protesters have demanded electoral justice and the resignation of the head of the Malawi Electoral Commission.</p>
<h2>Will others step up to the challange?</h2>
<p>The long-term democratic consequences of the ruling remain uncertain. Research on the consequences of court interference in elections has suggested that judicial assertiveness <em>vis á vis</em> the executive may lead to increased trust in the <a href="https://cpb-us-e1.wpmucdn.com/sites.dartmouth.edu/dist/9/452/files/2019/09/Kenya-supreme-court-2019.pdf">judiciary</a>, but may equally erode the trust in the freedom and fairness of <a href="https://www.researchgate.net/publication/334625537_Electoral_Rulings_and_Public_Trust_in_African_Courts_and_Elections">elections</a>.</p>
<p>When elections are affected by serious irregularities, losers need access to credible avenues for challenging results in court. The alternative, whereby losers challenge elections in the streets, is certainly a serious concern. </p>
<p>But, as the nullification of the 2017 election in <a href="https://muse.jhu.edu/article/690083/pdf?casa_token=fJY4tybcS9AAAAAA:ND-daLLt8SDhzAWtIgTksdU0AtalDgzmImYUUOtLaRykd3t7eyy4N6D10iejhw1UZBRZYthBLw">Kenya</a> showed with abundant clarity, the initial court ruling is only the first step in a longer process. In Kenya, the rerun turned out to be as faulty as the original election. And, the opposition opted to boycott the election all <a href="https://www.tandfonline.com/doi/pdf/10.1080/17531055.2019.1594072?casa_token=12umus5HdbsAAAAA:JLWOKS2unWmKwSGn3Ix30mnL2Q5aZf9I_OIVi1w5NWANfC6nwc3me7nzv_kSi0X-9kplaGNnx3Lw">together</a>.</p>
<p>For Malawi, the question now is whether other political institutions and actors can step up to the challenge. What will happen with President Mutharika’s appeal? How will parliament, still dominated by the ruling <a href="https://www.nyasatimes.com/no-hung-parliament-as-32-independent-mps-flock-to-governing-dpp/">Democratic Progressive Party</a>, react to the Court’s appeal for electoral reform? </p>
<p>Will the opposition manage to mobilise the <a href="https://www.wfd.org/2019/11/26/the-cost-of-politics-in-malawi/">resources</a> needed for the rerun, and will they set aside their differences to form a unified coalition? Most importantly, will the same electoral commission, so heavily criticised in the court’s ruling, improve its capacity and arrange more credible elections? </p>
<p>This question is particularly crucial given a short period for preparations and the possibility of major volatility in <a href="https://mwnation.com/fresh-calls-for-ansah-to-resign/">leadership</a>. Observers of Malawi politics will keenly ponder these and other questions as they continue to follow the development with great interest. The way events unfold in the coming months will be hugely consequential for the trajectory of Malawian democracy.</p><img src="https://counter.theconversation.com/content/131494/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Wahman does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Will the same electoral commission, so heavily criticised in the court’s ruling, improve its capacity and arrange more credible elections?
Michael Wahman, Assistant Professor, Comparative Politics, Michigan State University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/130354
2020-01-26T19:34:13Z
2020-01-26T19:34:13Z
Does impeachment need a crime? Not according to framers of the Constitution
<figure><img src="https://images.theconversation.com/files/311671/original/file-20200123-162232-4nnbts.jpg?ixlib=rb-1.1.0&rect=17%2C29%2C3828%2C2838&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Trump has employed the services of constitutional law expert Alan Dershowitz.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/professor-alan-dershowitz-listens-to-u-s-president-donald-news-photo/1193389321?adppopup=true">Mark Wilson/Getty Images</a></span></figcaption></figure><p>Donald Trump’s legal and political defenders are all singing the same refrain: The president can’t be impeached; he hasn’t committed a crime.</p>
<p>Alan Dershowitz, the constitutional lawyer now representing Trump, <a href="https://www.cnn.com/2020/01/20/politics/dershowitz-trump-legal-analysis/index.html">said it during an appearance on CNN</a>. Sen. Ted Cruz <a href="https://twitter.com/SenTedCruz/status/1219645944129630208">echoed it on Twitter</a>, noting there was “not even a speeding ticket.” And, of course, Trump himself has used the phrase “no crime” repeatedly as he <a href="https://twitter.com/realdonaldtrump/status/1207664621336825856?lang=en">seeks to delegitimize</a> the impeachment hearings.</p>
<p>But does the impeachment and conviction of a president require an actual criminal offense, as the president’s counselors and supporters argue?</p>
<p>Democrats clearly don’t think so. Jerrold Nadler, the Democratic chair of the House Judiciary Committee, lectured <a href="https://www.nytimes.com/live/2020/impeachment-trial-live-01-23/nadler-gives-a-history-lesson-in-arguing-that-no-crime-is-needed-for-impeachment#live-blog-list">senators at the impeachment hearing on Jan. 23</a> that the Constitution made it clear that a crime was not necessary for the president to be impeached.</p>
<p>This question of constitutional interpretation is critical to <a href="https://isearch.asu.edu/profile/3033197">experts such as me</a>, since the two articles of impeachment now pending in the Senate allege actions — including the abuse of power and the obstruction of Congress — that do not themselves constitute a violation of any criminal law. </p>
<p>And even though the Government Accountability Office has concluded that the President’s withholding of aid to Ukraine was <a href="https://www.washingtonpost.com/business/economy/white-house-hold-on-ukraine-aid-violated-federal-law-congressional-watchdog-says/2020/01/16/060ea7aa-37a3-11ea-9c01-d674772db96b_story.html">unlawful under the Impoundment Control Act</a>, the president’s actions do not give rise to criminal penalties.</p>
<h2>Treason, a matter of dates</h2>
<p>It’s important to understand what is not on the table. </p>
<p>Under the <a href="https://constitutioncenter.org/interactive-constitution/interpretation/article-ii/clauses/349">impeachment clause</a> of the Constitution, a president may be removed from office “on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”</p>
<p>Treason is a criminal offenses, defined in the Constitution as acts that “consist of levying war” against the United States or giving “aid and comfort” to its enemies. The Supreme Court has held that it can take place <a href="https://www.nbcnews.com/think/opinion/americans-have-forgotten-what-treason-actually-means-how-it-can-ncna848651">only in wartime</a>.</p>
<p>Under this definition, Trump did not commit treason. Treason is not a catch-all phrase for unpatriotic acts. It requires actions like those of <a href="https://www.history.com/topics/american-revolution/benedict-arnold">Benedict Arnold</a>, the American general who betrayed his country to fight for the British in the Revolutionary War.</p>
<p>Bribery, also a criminal offense, was not alleged in the pending articles of impeachment.</p>
<h2>Framers’ intent</h2>
<p>That leaves us with “other high crimes and misdemeanors.”</p>
<p>The Republican Party has long advocated for constitutional interpretation that relies on the <a href="https://thehill.com/opinion/judiciary/472778-republicans-must-not-abandon-originalism-of-the-consitution">original intent</a> of the framers. So what did the framers mean by this lofty phrase, and what did they reject as impeachable offenses?</p>
<p>During the Constitutional Convention, George Mason moved that the impeachment clause follow the term “bribery” with “or maladministration.”</p>
<p>But James Madison <a href="https://www.smithsonianmag.com/history/inside-founding-fathers-debate-over-what-constituted-impeachable-offense-180965083/">objected</a> on grounds that it was too broad and would subject a president to tenure only at the pleasure of the Senate. So the phrase was replaced by “other high crimes and misdemeanors.”</p>
<p>The framers intended the phrase to convey a more serious connotation than simple incompetence or poor administration. In <a href="https://avalon.law.yale.edu/18th_century/fed65.asp">Federalist Paper No. 65</a>, Hamilton made clear that impeachable acts must involve “the abuse or violation of some public trust” and “relate chiefly to injuries done immediately to the society itself.”</p>
<p>Hamilton made no mention of the requirement that actual crimes be committed, nor as far as I know did any other framer suggest that actual crimes were mandatory for impeachment.</p>
<p>Examples of impeachable offenses cited by the framers provide further context. In response to concerns that the president could use his pardon powers to protect his own bad acts from detection, Madison responded: “if the president be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him.”</p>
<p>Madison makes no reference to any crime. His concern here is the potential for the use of presidential power for personal or other inappropriate purposes.</p>
<p>Fellow framer James Iredell <a href="https://www.newyorker.com/books/page-turner/impeachment-american-style">concluded</a> that presidential acts to obscure or withhold information from Congress could also constitute a violation of the impeachment clause if Congress was induced to act based on the deception.</p>
<h2>‘Misdemeanors’ misinterpreted?</h2>
<p>The framers understood that “high crimes and misdemeanors” included acts that may not necessarily violate any criminal law, but do constitute a serious violation of the public trust.</p>
<p>It also has to be remembered that the word “misdemeanors” had a broader meaning at the time it was added to the impeachment clause. As law professor and historian Frank Bowman has <a href="https://www.cambridge.org/core/books/high-crimes-and-misdemeanors/06FDD57E104F3891A4C2B50175195FA5">pointed out</a>, in the context of British law at the time “misdemeanor” did not solely mean a less serious criminal offense. Rather, “crimes and misdemeanors” was used more colloquially to mean bad behavior.</p>
<p>Advocates for Trump say the current articles of impeachment do not meet the threshold as they do not allege criminal offenses. The framers would be surprised by this interpretation.</p>
<h2>Originalism revisited</h2>
<p>The <a href="https://www.nytimes.com/interactive/2019/12/10/us/politics/articles-impeachment-document-pdf.html?mtrref=www.google.com&gwh=8DBD9626E0658D086FF558971E0987A3&gwt=pay&assetType=PAYWALL">articles allege</a> that Trump abused his political power to serve his own ends, including his reelection, and that in so doing he undermined the nation’s security policy in terms of its commitment to Ukraine’s defense.</p>
<p>Whether or not the evidence supports this charge, an actual criminal offense is simply not a prerequisite for impeachment in this or any other case. The framers are clear on this point.</p>
<p>Interpreting “high crimes and misdemeanors” to reflect the modern understanding of those terms as actual statutory offenses is inconsistent with the framers’ original intent. Such an approach is also inconsistent with the broader theory of originalism, which relies on interpreting what the founders <a href="https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/">meant at the time of the Constitution’s writing</a>. Indeed, the president’s position on “high crimes and misdemeanors” appears more consistent with the idea that the Constitution should be interpreted within a modern context as a “living” constitution — an interpretative method much criticized by many in the GOP.</p>
<p>[ <em><a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=expertise">Expertise in your inbox. Sign up for The Conversation’s newsletter and get a digest of academic takes on today’s news, every day.</a></em> ]</p><img src="https://counter.theconversation.com/content/130354/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nothing to disclose.</span></em></p>
Trump’s backers say he is shielded from removal as no criminal offense took place. But this view may be at odds with the original intent of the impeachment clause.
Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/128834
2020-01-17T13:54:38Z
2020-01-17T13:54:38Z
A Navy scandal sheds light on the nature of bribery and the limits of free speech
<figure><img src="https://images.theconversation.com/files/309329/original/file-20200109-80116-9fb3my.jpg?ixlib=rb-1.1.0&rect=0%2C15%2C3456%2C1746&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Numerous officers who served in the U.S. Navy's Pacific Fleet are caught up in a massive bribery scandal.</span> <span class="attribution"><a class="source" href="https://www.navy.mil/view_image.asp?id=35947">Information Systems Technician 3rd Class Nicholas A. Galladora/U.S. Navy</a></span></figcaption></figure><p>It seems like everyone’s talking about bribery these days – but I, and anyone else who works for the federal government, have to limit what we can say about what does or does not constitute an ethical or illegal lapse.</p>
<p>I am an ethicist who teaches leadership, ethics and law, and I believe a recent bribery case in the U.S. military offers an interesting and distinctive perspective through which to consider these issues. Unfortunately, due to current restrictions on what federal employees can and can’t say about political matters, I can’t discuss all the ways that case might apply to a broader debate.</p>
<p>Nonetheless, there is one thing I can say without caveat or equivocation. Bribery laws for government officials have a powerful ethical principle at their core: If you work for the government, your actions in office are meant to serve the public interest – not your own.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/309341/original/file-20200109-80159-17980tx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/309341/original/file-20200109-80159-17980tx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/309341/original/file-20200109-80159-17980tx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/309341/original/file-20200109-80159-17980tx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/309341/original/file-20200109-80159-17980tx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/309341/original/file-20200109-80159-17980tx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/309341/original/file-20200109-80159-17980tx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/309341/original/file-20200109-80159-17980tx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Leonard Glenn Francis, known as ‘Fat Leonard,’ is the central figure in a major U.S. Navy bribery investigation.</span>
<span class="attribution"><a class="source" href="https://www.straitstimes.com/world/united-states/fat-leonard-and-his-prostitutes-affected-pentagons-pick-to-lead-joint-chiefs-of">U.S. Navy via Straits Times</a></span>
</figcaption>
</figure>
<h2>Trouble in the 7th Fleet</h2>
<p>The so-called “<a href="https://www.washingtonpost.com/graphics/investigations/seducing-the-seventh-fleet/">Fat Leonard scandal</a>” is the <a href="https://medium.com/@RPublicService/feds-at-work-uncovered-the-largest-bribery-and-corruption-scandal-in-u-s-navy-history-450a67469f61">largest bribery and corruption case</a> in U.S. Navy history. </p>
<p>The key player is Leonard Glenn Francis, a Malaysian-born businessman based in Singapore who was commonly referred to as “Fat Leonard” because of <a href="https://www.washingtonpost.com/sf/investigative/2016/05/27/the-man-who-seduced-the-7th-fleet/">his 350-pound weight</a>. He ran a company called Glenn Defense Marine Asia that had U.S. government contracts to provide various services to Navy ships in Asian ports – <a href="https://news.usni.org/2019/01/24/paying-price-hidden-cost-fat-leonard-investigation">docking, refueling, sewage removal</a> and <a href="https://www.justice.gov/opa/pr/former-employee-navy-contractor-pleads-guilty-international-navy-bribery-scandal">shore transportation for both cargo and personnel</a>. </p>
<p>In 2015, Francis pleaded guilty to plying <a href="https://www.justice.gov/opa/press-release/file/948061/download">Navy officers</a> with cash and favors in exchange for their efforts to steer the Navy’s Pacific fleet to ports where his company could provide services. Then, the company would fabricate bids by nonexistent companies to make its own charges look competitive, <a href="https://www.justice.gov/opa/pr/former-employee-navy-contractor-pleads-guilty-international-navy-bribery-scandal">overbill the Navy for services</a> and even draw up fake invoices to collect money for goods and services it never provided to the ships and crews. </p>
<p>The case is perhaps best known for the fact that one of the most common favors Francis provided were paid sexual partners: He even <a href="https://www.washingtonpost.com/sf/investigative/2016/05/27/the-man-who-seduced-the-7th-fleet/">kept meticulous notes</a> about the peccadilloes of different officers.</p>
<p>More significant for U.S. taxpayers is the fact that the decade-long scam ultimately bilked the Navy out of <a href="https://news.usni.org/2019/01/24/paying-price-hidden-cost-fat-leonard-investigation">more than US$35 million</a>.</p>
<h2>Whistleblowers and corruption</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/309333/original/file-20200109-80137-18haws9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/309333/original/file-20200109-80137-18haws9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/309333/original/file-20200109-80137-18haws9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=504&fit=crop&dpr=1 600w, https://images.theconversation.com/files/309333/original/file-20200109-80137-18haws9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=504&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/309333/original/file-20200109-80137-18haws9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=504&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/309333/original/file-20200109-80137-18haws9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=634&fit=crop&dpr=1 754w, https://images.theconversation.com/files/309333/original/file-20200109-80137-18haws9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=634&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/309333/original/file-20200109-80137-18haws9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=634&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Capt. John Steinberger is one of many high-ranking Navy officers who has pleaded guilty to crimes associated with receiving gifts and bribes from a Singapore-based businessman.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/navalsurfaceforces/8081032296/in/album-72157631754507042/">Mass Communication Specialist 3rd Class Christine Walker-Singh/U.S. Navy</a></span>
</figcaption>
</figure>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/309334/original/file-20200109-80122-1as41s0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/309334/original/file-20200109-80122-1as41s0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/309334/original/file-20200109-80122-1as41s0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=750&fit=crop&dpr=1 600w, https://images.theconversation.com/files/309334/original/file-20200109-80122-1as41s0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=750&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/309334/original/file-20200109-80122-1as41s0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=750&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/309334/original/file-20200109-80122-1as41s0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=943&fit=crop&dpr=1 754w, https://images.theconversation.com/files/309334/original/file-20200109-80122-1as41s0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=943&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/309334/original/file-20200109-80122-1as41s0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=943&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Rear Adm. Terry Kraft retired after being found to have violated Navy ethics standards by improperly accepting gifts from ‘Fat Leonard’ Glenn Francis.</span>
<span class="attribution"><a class="source" href="https://www.washingtonpost.com/world/national-security/three-us-admirals-censured-in-fat-leonard-corruption-probe/2015/07/17/7f29ca1a-2b1f-11e5-a5ea-cf74396e59ec_story.html">U.S. Navy via Washington Post</a></span>
</figcaption>
</figure>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/309336/original/file-20200109-80132-1oo04d8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/309336/original/file-20200109-80132-1oo04d8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/309336/original/file-20200109-80132-1oo04d8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=751&fit=crop&dpr=1 600w, https://images.theconversation.com/files/309336/original/file-20200109-80132-1oo04d8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=751&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/309336/original/file-20200109-80132-1oo04d8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=751&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/309336/original/file-20200109-80132-1oo04d8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=943&fit=crop&dpr=1 754w, https://images.theconversation.com/files/309336/original/file-20200109-80132-1oo04d8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=943&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/309336/original/file-20200109-80132-1oo04d8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=943&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Rear Adm. David Pimpo retired after being found to have violated Navy ethics standards by improperly accepting gifts from ‘Fat Leonard’ Glenn Francis.</span>
<span class="attribution"><a class="source" href="https://www.navy.mil/navydata/bios/navybio_ret.asp?bioID=676">U.S. Navy</a></span>
</figcaption>
</figure>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/309337/original/file-20200109-80144-ghqr5w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/309337/original/file-20200109-80144-ghqr5w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/309337/original/file-20200109-80144-ghqr5w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=750&fit=crop&dpr=1 600w, https://images.theconversation.com/files/309337/original/file-20200109-80144-ghqr5w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=750&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/309337/original/file-20200109-80144-ghqr5w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=750&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/309337/original/file-20200109-80144-ghqr5w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=943&fit=crop&dpr=1 754w, https://images.theconversation.com/files/309337/original/file-20200109-80144-ghqr5w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=943&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/309337/original/file-20200109-80144-ghqr5w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=943&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Vice Adm. Michael H. Miller retired after being found to have violated Navy ethics standards by improperly accepting gifts from ‘Fat Leonard’ Glenn Francis.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/File:Michael_H._Miller_official_photo.jpg">U.S. Navy/Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>In some ways the Fat Leonard scandal is a textbook bribery scheme, with clandestine meetings, envelopes full of cash, and explicit arrangements to perform clearly illegal acts. In fact, one of the biggest questions raised when <a href="https://www.nytimes.com/2013/11/21/us/navy-was-warned-of-contractor-in-bribery-scandal.html">Leonard was finally arrested in 2013</a> was how his company had been able to get away with the scheme for almost a decade. </p>
<p>There were, in fact, several whistleblowers along the way, but as is often the case when corruption is widespread, those in on the scheme were <a href="https://www.washingtonpost.com/investigations/navy-repeatedly-dismissed-evidence-that-fat-leonard-was-cheating-the-7th-fleet/2016/12/27/0afb2738-c5ab-11e6-85b5-76616a33048d_story.html">notified</a> of the complaints before word got to those who would hold them responsible. So rather than being lauded, whistleblowers were instead widely <a href="https://www.stripes.com/news/us/navy-repeatedly-dismissed-evidence-that-fat-leonard-was-cheating-the-7th-fleet-1.446333">vilified</a>. </p>
<p>Nonetheless, the truth was eventually brought to light. To date, <a href="https://www.washingtonpost.com/graphics/investigations/seducing-the-seventh-fleet/">more than 20 people have pleaded guilty</a> to federal crimes, including the first-ever <a href="https://www.navytimes.com/news/your-navy/2017/05/17/us-navy-admiral-sentenced-to-18-months-in-fat-leonard-bribery-scandal/">conviction of an admiral for a felony</a>. </p>
<p>Significantly, however, the scope of the scandal is even more far-reaching. Dozens of officers, including several admirals, <a href="https://www.washingtonpost.com/graphics/investigations/seducing-the-seventh-fleet/">have been reprimanded and removed from office</a> for more minor related violations, without going to jail. </p>
<h2>Reciprocity and bribery</h2>
<p>These last cases are particularly interesting, because they help demonstrate not only the high standards of military, but also the ways that bribery schemes often don’t conform to common, stereotypical, preconceived notions. </p>
<p><a href="https://www.washingtonpost.com/graphics/investigations/seducing-the-seventh-fleet/">Many of the officers</a> charged <a href="https://www.sandiegouniontribune.com/news/courts/sd-me-amundson-sentence-20181019-story.html">didn’t accept cash payments</a>, but rather the kind of favors that they couldn’t or wouldn’t be able to obtain for themselves: travel, champagne, scotch, luxury hotel rooms, <a href="https://www.latimes.com/local/lanow/la-me-ln-navy-captain-bribery-20150115-story.html">ornamental swords, handmade ship models</a>, <a href="https://www.washingtonpost.com/world/national-security/navy-captain-enters-guilty-plea-in-massive-bribery-case/2015/01/15/b09688ba-9ced-11e4-a7ee-526210d665b4_story.html">spa treatments, Cuban cigars, Kobe beef, Spanish suckling pigs</a>, <a href="https://www.navytimes.com/news/your-navy/2019/02/09/navy-captain-who-moonlighted-as-fat-leonards-pr-man-is-headed-to-prison/">concert tickets</a> and even a <a href="https://www.justice.gov/opa/press-release/file/948061/download">culinary internship</a>.</p>
<p>Ultimately, it shouldn’t be surprising that bribery often begins with small favors rather than thick envelopes of cash. Human beings are social creatures; favors <a href="https://doi.org/10.1177%2F001872676902200407">strengthen people’s social bonds</a> and make them <a href="https://doi.org/10.1177%2F0146167200261008">more likely to reciprocate in turn</a>. </p>
<p>That’s why federal ethics rules regarding favors are generally <a href="https://ask.fedweek.com/federal-government-policies/rules-gifts/">so strict</a>, <a href="https://www.stripes.com/news/us/navy-repeatedly-dismissed-evidence-that-fat-leonard-was-cheating-the-7th-fleet-1.446333">prohibiting</a> government employees from accepting all but the most minimal gifts (even modest meals) from contractors and foreign agents.</p>
<p>Those prohibitions have obvious exceptions, but the principle behind the general rules is all the more important in their exceptions: Official actions are meant to serve public, rather than private, interests. In the Fat Leonard cases, the evidence is clear: Even in the cases in which leaders have been merely reprimanded and removed from office, the kinds of favors the officers accepted demonstrate they were acting for their own benefits – not those of the nation. </p>
<h2>Why I can’t say more</h2>
<p>There may well be lessons the Fat Leonard saga has for other cases in which the alleged exchange of official acts for something of personal value is a key element of the crime. Those considerations might seem even more relevant given that in 1998, Mississippi Republican lawmaker Roger Wicker took to the House floor and declared “the rule of law means that the commander-in-chief of our armed forces could not be held to a lower standard than are his subordinates.” More than two decades later Wicker, now a senator, has <a href="https://www.youtube.com/watch?v=y2xK9YcT56c&t=6m5s">recently reaffirmed</a> that standard.</p>
<p>However, I am a federal employee, and the U.S. Office of Special Counsel has issued <a href="https://web.archive.org/web/20200106212710/https://osc.gov/Documents/Hatch%20Act/Advisory%20Opinions/Federal/Current%20Guidance%20on%20President%20Trump%27s%20Reelection%20Status.pdf">unusually broad guidance</a> about the <a href="https://www.govinfo.gov/content/pkg/USCODE-2010-title5/html/USCODE-2010-title5-partIII-subpartF-chap73-subchapIII.htm">Hatch Act’s</a> limits on federal workers’ partisan political activities. The law generally bars federal employees from advocating in favor of or against the election of a particular candidate, as well from participating in other partisan political activities in an election. Yet the current guidance – which itself <a href="https://www.washingtonpost.com/outlook/2019/12/14/impeachment-is-law-saying-political-process-only-helps-trumps-narrative/">has been criticized for taking sides on a political divide</a> – has been taken by some to apply to any <a href="https://int.nyt.com/data/documenthelper/500-osc-hatch-act-advisory-novembe/6255daba98ab1a42d079/optimized/full.pdf#page=1">analysis of</a> any aspects of <a href="https://cdn.govexec.com/media/gbc/docs/pdfs_edit/osc_november_27_2018_guidance_extension_and_clarification.pdf">the president’s impeachment</a> and trial.</p>
<h2>Limiting public discourse</h2>
<p>This is a <a href="https://www.govexec.com/oversight/2019/08/union-sues-give-federal-employees-right-talk-impeachment-and-resistance/159151/">free-speech problem</a>, but it’s more than that. When federal and state governments hire experts and researchers as, in effect, public servants, I believe that expertise <a href="https://www.nytimes.com/2019/04/02/opinion/government-censorship.html">should be welcome in the public sphere</a>, helping to inform the people we work for. </p>
<p>I work at a federally run university, which is why I come under these particular government rules. There are <a href="https://en.wikipedia.org/wiki/United_States_federal_academies">relatively few institutions</a> like mine, so it might seem a minor issue. However, <a href="https://my.wlu.edu/general-counsel/answer-center/political-activity/statement-concerning-political-activity">numerous</a> <a href="https://policies.utexas.edu/policies/prohibitions-political-activity">states</a> <a href="https://www.president.iastate.edu/federal/guidelines">have</a> <a href="https://district.maricopa.edu/legal/student-faculty-resources/political-activity-on-campus">laws</a> similar to the Hatch Act, at least some of <a href="https://www.uky.edu/hr/policies/political-activities-and-public-office">which</a> <a href="https://www.ohsu.edu/government-relations/political-activity-notice">apply to employees</a> <a href="https://www.lsu.edu/govrelations/state/ethics.php">of</a> <a href="https://www.umsystem.edu/ums/rules/collected_rules/personnel/ch330/330.050_political_activities">those states’</a> <a href="https://www.k-state.edu/govrelations/university/PAP.html">public</a> <a href="https://www.usu.edu/policies/333/">universities</a>. If the current federal rules stand, public state university employees may well find themselves facing similar, or even more problematic, limits in the future, especially if analysis is taken to be a form of advocacy.</p>
<p>Regardless of those concerns, the Office of Special Counsel’s current guidance remains, for better or worse, the rule for federal employees. Given that fact, there very may well be another reason to follow it: Doing so can help further differentiate those who attempt to respect the significant distinction between campaigning and governing from those who seek to minimize, or even eliminate altogether, the difference between the two. </p>
<p>As a result, I leave any lessons of how the Fat Leonard scandal might apply to any other case as an exercise for the reader.</p>
<p>[ <em>Get the best of The Conversation, every weekend.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklybest">Sign up for our weekly newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/128834/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marcus Hedahl is an Associate Professor in the Department of Leadership, Ethics, and Law at the U.S. Naval Academy. He is not a member of the American Federation of Government Employees. The views expressed in this article are the views of the author alone. They do not reflect the official position of the U.S. Naval Academy, the U.S. Navy, the Department of Defense, or any other entity within the U.S. Government. </span></em></p>
A massive scandal implicating senior US Navy officers highlights what bribery is and how it happens. A law and ethics scholar at the US Naval Academy can’t say much more than that, though.
Marcus Hedahl, Associate Professor of Philosophy, United States Naval Academy
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/128104
2019-12-12T19:05:34Z
2019-12-12T19:05:34Z
What’s ahead for remediation agreements in the SNC-Lavalin aftermath
<figure><img src="https://images.theconversation.com/files/306473/original/file-20191211-95130-3qxzz2.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C4532%2C2731&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The SNC-Lavalin headquarters is seen in in February 2019.</span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Paul Chiasson</span></span></figcaption></figure><p>About a year ago, <a href="https://theconversation.com/is-the-snc-lavalin-controversy-truly-a-scandal-112208">the SNC-Lavalin controversy</a> introduced Canadians to a new way of settling criminal charges — remediation agreements. </p>
<p>Added to Canadian law <a href="https://www.parl.ca/DocumentViewer/en/42-1/bill/C-74/royal-assent">via a budget bill</a> in June 2018, the system was put to the test almost immediately when SNC-Lavalin sought a deal to settle fraud and corruption charges pending against it since early 2015. Prosecutors decided, however, that it wasn’t in the public interest to offer the Québec company a deal.</p>
<p>Government officials, convinced a deal was essential to avoiding big job losses, urged Jody Wilson-Raybould, then the attorney general, to use her power to direct prosecutors to negotiate with SNC. Her replacement, David Lametti, <a href="https://globalnews.ca/news/6286290/ag-can-order-remediation-agreements-in-very-rare-circumstances-says-lametti/">said recently that the attorney general can make that call</a> in rare circumstances.</p>
<p>But once those efforts became public, the settlement tool at the centre of the political storm became inextricably linked to the SNC-Lavalin affair. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/306468/original/file-20191211-95130-6bx8s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/306468/original/file-20191211-95130-6bx8s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/306468/original/file-20191211-95130-6bx8s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=410&fit=crop&dpr=1 600w, https://images.theconversation.com/files/306468/original/file-20191211-95130-6bx8s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=410&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/306468/original/file-20191211-95130-6bx8s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=410&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/306468/original/file-20191211-95130-6bx8s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=516&fit=crop&dpr=1 754w, https://images.theconversation.com/files/306468/original/file-20191211-95130-6bx8s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=516&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/306468/original/file-20191211-95130-6bx8s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=516&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former SNC-Lavalin vice-president Sami Bebawi leaves a courtroom in February 2019.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Paul Chiasson</span></span>
</figcaption>
</figure>
<p>It’s 10 months later and a jury is about to decide the fate of Sami Bebawi, <a href="https://www.theglobeandmail.com/canada/article-bebawis-defence-argues-that-millions-in-accounts-were-bonuses/">a senior SNC-Lavalin executive accused of corruption and fraud</a>. SNC-Lavalin is also scheduled <a href="https://www.cbc.ca/news/business/snc-lavalin-shares-up-1.5331794">to be back in court on Dec. 18</a>, and the start of its criminal trial is imminent. </p>
<p>As for the remediation agreement regime, the bright promise of <a href="http://www.mondaq.com/canada/x/735734/Corporate+Crime/Coming+In+From+The+Cold+Deferred+Prosecution+Remediation+Agreements+In+Canada">what many saw as a welcome addition to the corporate accountability tool kit</a> has dimmed considerably. The taint of SNC seems to have made prosecutors and organizations wary of settling cases via remediation agreements.</p>
<p>That’s a terrible shame. As the Department of Justice states in its <a href="https://www.canada.ca/en/department-justice/news/2018/03/remediation-agreements-to-address-corporate-crime.html">backgrounder</a>, remediation agreements are a much-needed alternative to full prosecution in appropriate cases, for holding organizations accountable and encouraging corporations to disclose wrongdoing with investigators.</p>
<p>While remediation agreements may have been unfairly tarred by the SNC-Lavalin case, the controversy has also shown that the new system was put together too quickly and without enough consideration of how it would work in practice.</p>
<p>It’s time to set the remediation agreement system back on course. Here are three things that can be done relatively quickly:</p>
<h2>1. Enact the regulations</h2>
<p>At the moment, the remediation agreement system is comprised only of the legislative provisions in a new <a href="https://laws-lois.justice.gc.ca/eng/acts/c-46/page-183.html#h-130598">section of the Criminal Code</a>. Unlike other settlement mechanisms in Canada, including the <a href="https://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/h_02000.html">Immunity and Leniency Program for competition offences</a>, or the <a href="https://www.sfo.gov.uk/publications/guidance-policy-and-protocols/deferred-prosecution-agreements/">United Kingdom’s deferred prosecution agreement regime</a> that inspired Canada’s, no accompanying guidelines or policies were adopted to help prosecutors and accused companies navigate the basic process outlined in the law.</p>
<p>The legislation specifically calls for <a href="https://laws-lois.justice.gc.ca/eng/acts/C-46/page-185.html#docCont">regulations to be adopted</a> on two items: the actual form of the remediation agreement and the qualifications needed to be an independent monitor who oversees the implementation of the agreement. </p>
<p>These regulations have yet to be drafted and enacted.</p>
<p>The lack of specifics in these two areas erodes confidence that the system can keep its two key promises: transparency and effective implementation of corrective measures.</p>
<p>A remediation agreement is not just a deal between the Crown and an organization, it is also a public record that sets out the facts underlying the criminal charges. It also includes an admission of responsibility, past and future co-operation with authorities, the amount to be paid in penalties, disgorgement of profits and restitution to victims and any corrective measures that the organization has promised to implement. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/snc-lavalin-canadas-anti-foreign-bribery-laws-did-their-job-112758">SNC-Lavalin: Canada’s anti-foreign bribery laws did their job</a>
</strong>
</em>
</p>
<hr>
<p>Developing a standard template will ensure that agreements are drafted in a consistent style that makes it easy to understand why and how they advance the public interest. </p>
<p>Similarly, until there are standards for who qualifies as an independent monitor, it will be up to the courts approving remediation agreements to decide on a case-by-case basis who can be trusted to ensure organizations are implementing corrective measures properly. </p>
<p>That’s not only inefficient, it invites a mish-mash of standards.</p>
<h2>2. Provide detailed guidance</h2>
<p>There are also several aspects of the remediation agreement process that aren’t outlined in the legislation and require more precise guidance. </p>
<p>That includes the evaluation of the <a href="https://laws-lois.justice.gc.ca/eng/acts/C-46/page-183.html#docCont">public interest criteria</a> that must be weighed before inviting an organization to negotiate a remediation agreement. Since deciding what is in the public interest falls to prosecutors as they decide how to proceed, this kind of information should be included in what’s known as the <a href="https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/index.html">Federal Prosecution Deskbook</a> and its provincial equivalents.</p>
<p>While there is a part of the deskbook devoted to prosecutions for <a href="https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p5/ch08.html">foreign corruption offences</a>, it’s focused on making sure these sometimes diplomatically sensitive matters are co-ordinated at a national level as well as ensuring that prosecutors know about unique aspects of the <a href="http://www.oecd.org/corruption/oecdantibriberyconvention.htm">OECD Anti-Bribery Convention</a> integrated into Canadian law. </p>
<p>This part makes no reference to remediation agreements. At the moment, the only reference is a <a href="https://ppsc-sppc.gc.ca/eng/tra/tr/22.html">short briefing note</a> in the <a href="https://www.ppsc-sppc.gc.ca/eng/tra/tr/index.html">Public Prosecution Service of Canada’s Transition Book</a>. That note was prepared when Lametti was appointed in January 2019, and some of it’s redacted.</p>
<p>There’s also a pressing need to describe how organizations should proceed when disclosing a possible offence, and especially what kind of information they are expected to provide prior to prosecutors approaching them about a possible remediation agreement.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/306470/original/file-20191211-95149-1jgvwds.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/306470/original/file-20191211-95149-1jgvwds.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/306470/original/file-20191211-95149-1jgvwds.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=422&fit=crop&dpr=1 600w, https://images.theconversation.com/files/306470/original/file-20191211-95149-1jgvwds.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=422&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/306470/original/file-20191211-95149-1jgvwds.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=422&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/306470/original/file-20191211-95149-1jgvwds.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=530&fit=crop&dpr=1 754w, https://images.theconversation.com/files/306470/original/file-20191211-95149-1jgvwds.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=530&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/306470/original/file-20191211-95149-1jgvwds.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=530&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Jody Wilson-Raybould resisted efforts to get her to reconsider a remediation agreement for SNC-Lavalin.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Jonathan Hayward</span></span>
</figcaption>
</figure>
<p>This void created problems in the SNC-Lavalin case. Since prosecutors don’t need to provide reasons for their decisions, it was impossible to know on what basis they decided a remediation agreement with SNC-Lavalin was not in the public interest. </p>
<p>Without any indication of what kind of information prosecutors would normally expect to receive from companies seeking to negotiate deals, SNC-Lavalin was able to cast doubt on their decision by saying <a href="https://www.snclavalin.com/en/media/press-releases/2018/10-10-2018">it didn’t understand</a> why prosecutors refused to negotiate when the company had provided so much relevant information. </p>
<p>The clear implication was that the decision against negotiating a deal could only be due to an erroneous assessment of the evidence or a failure to consider it at all. Though this argument was clearly rejected by Justice Katherine Kane <a href="https://www.canlii.org/en/ca/fct/doc/2019/2019fc282/2019fc282.html?resultIndex=2">in her decision striking down SNC’s application for a judicial review</a>, it continues to hang over the SNC-Lavalin decision. It’s not likely to be fully refuted as long as the details remain confidential. </p>
<p>To ensure fairness and transparency, the remediation agreement process for companies should be set out clearly in writing and made widely accessible to the public, ideally through a website.</p>
<h2>3. Create an anti-corruption enforcement body</h2>
<p>The need for such transparency also suggests that it’s a good idea for Canada to create a specialized enforcement body, akin to the <a href="https://www.sfo.gov.uk/publications/guidance-policy-and-protocols/deferred-prosecution-agreements/">Serious Fraud Office</a> in the U.K. or Canada’s own <a href="https://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/home">Competition Bureau</a>. The enforcement body would oversee and co-ordinate anti-corruption policy and enforcement in Canada. </p>
<p>There are several aspects of the remediation agreement system that would benefit from specialized expertise and personnel in one place. In Canada, most significant criminal cases against organizations for elusive economic crimes have been <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3039707">immunity or leniency settlements for competition offences</a>. There’s a need for tools that are tailored specifically to the remediation agreement regime and its mandate to settle corruption and fraud offences.</p>
<p>These include developing robust methods of calculating fines and restitution amounts, outlining methods for locating and compensating victims and building an inventory of promising corrective and compliance measures to be included in remediation agreements whenever appropriate. </p>
<p>The government should also consult with experts and stakeholders to evaluate the existing remediation agreement regime and identify areas for improvement. </p>
<p>Enacting the legislation so quickly has deprived Canadians of a detailed discussion about how it was developed. That’s undermined the overall legitimacy of remediation agreements. It’s time to correct those mistakes.</p>
<p>[ <em>Deep knowledge, daily.</em> <a href="https://theconversation.com/ca/newsletters?utm_source=TCCA&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p><img src="https://counter.theconversation.com/content/128104/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer Quaid hold research grants from the Social Sciences and Humanities Research Council of Canada and the Foundation for Legal Research. She is a member of the legal committee of Transparency International Canada. </span></em></p>
A jury is about to decide the fate of a senior SNC-Lavalin executive accused of corruption and fraud. Meanwhile, Canada’s remediation agreement process is still sorely lacking.
Jennifer Quaid, Associate Professor, Civil Law Section, Faculty of Law, L’Université d’Ottawa/University of Ottawa
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/126286
2019-12-08T07:15:28Z
2019-12-08T07:15:28Z
A useful guide for CEOs on how to make ethical decisions in business
<figure><img src="https://images.theconversation.com/files/305188/original/file-20191204-70167-1vf78pn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Chief executive officers (CEOs), like ordinary citizens, are driven by their values and convictions. These may not necessarily be just ‘good for business’. Examples abound. Tim Cook, CEO of Apple, speaks strongly for the LGBT community. Salesforce CEO Marc Benioff speaks strongly against pay inequality. Laurence Douglas Fink, chairman and CEO of BlackRock, is passionate about the incorporation of environmental, social, and governance risks in investment decisions and is against shareholders taking very short-term views. </p>
<p>One thing common among these examples is that the <a href="https://hbr.org/2016/06/is-it-safe-for-ceos-to-voice-strong-political-opinions">debate</a> on how good or bad leaders’ convictions are for business is not yet settled.</p>
<p>When it comes to social injustice or politics, business leaders can no longer stand by and watch from the sidelines. They must take action: their employees, customers and society expect them to. But their political views might not align with some of their employees or corporate partners, so how are they supposed to take a stand and please everybody at the same time?</p>
<h2>New ways to relate to society</h2>
<p>Stakeholders are not unreasonable. They understand that individuals are free to uphold and air views they are passionate about. They respect such leaders, even when they disagree with them. What they do not like is prevarication and hypocrisy. They can easily see through that when it happens.</p>
<p>The former CEO of Unilever, Paul Polman, was passionate about sustainable development goals. He did not hide this passion. He even challenged the market on quarterly reporting of performance, preferring a long-term agenda. Unilever did not suffer as a result. </p>
<p>Contrary to Polman’s position on sustainability was the view of Steve Jobs, the former CEO of Apple. Despite his stance, he was believed as someone who stood for his passion in technology and innovation.</p>
<p>In other words, the problem is not necessarily having a political view. But what happens when a leader’s decisions have an indirect negative impact on the business? An example could be boycotting a market because of social injustice, and this leading to reduced revenues.</p>
<p>Imagine a situation where a CEO decides to take a strong stand against bribery and corruption. Or perhaps the business operates in an environment where bribery and corruption is rife and normal or where wielders of state power are inclined towards poor governance. This is common in many emerging economies with very weak market and democratic institutions.</p>
<p>In such situations, it would appear that doing the right thing is a luxury (unless it pays). The incentive to act responsibly would be very low –- leading to a fragmented two-tier market system. How can a CEO who still wants to do the right thing compete in such a harsh environment?</p>
<p>Innovation and creativity might hold the key to success here. Colleagues and I have published a book, <a href="https://www.taylorfrancis.com/books/e/9781315559346/chapters/10.4324/9781315559346-4">Africapitalism, Sustainable Business and Development in Africa</a>, that sets out new ways for businesses to relate to society and meet its needs.</p>
<p>In it we share what we call C.L.E.A.R. strategies, each letter standing for an action businesses can take to contribute to sustainable development goals. </p>
<h2>Five courses of action</h2>
<p><em>Collaborate.</em> The idea here is for CEOs to enrol other actors in their institutional change initiatives (such as setting standards). This might involve partnerships with non-business actors like the NGOs. There are also occasions when it might be better for CEOs to go it alone, especially where there is a clear competitive advantage to be gained by doing so. A CEO needs to decide on when and how to collaborate in pursuing a responsible business practice agenda.</p>
<p><em>Lobby.</em> CEOs keen to do the right thing in challenging and threatening environments are usually better off lobbying the relevant authorities and governance actors. They can ask that the players adhere to the rules, where they exist, or ask for the rules to be changed where they do not support doing the right thing. </p>
<p><em>Educate.</em> Sometimes doing the right thing is not appropriately rewarded because stakeholders lack an understanding of the issues. For example, consumers may not be prepared to pay for green products and sustainable innovation. Then the CEO may want to engage and educate the relevant stakeholder groups. Enlightened consumers could become a new market or pressure group to raise the bar for the entire industry. The same applies to other stakeholder groups such as regulators, employees and investors.</p>
<p><em>Align.</em> The CEO needs to be consistent in practice, while ensuring good internal and external alignment with the values and purpose of the business. He or she does not want to be seen as “green-washing”. A good example of this would be the leaders of BP in the early 2000s. At that time, BP claimed to aspire towards good green (environmental) credentials, but it was part of a coalition lobbying the US government against climate change policies that would have catalysed the emergence of the green economy in the US. This can be damaging.</p>
<p><em>Renewal.</em> All of the strategies highlighted above will need to be continuously reinforced, and not just treated as one-off activities. That way, the CEO recreates and adapts to the ethical demands of the operating environment.</p>
<p>In sum, ethical challenges and dilemmas will never go away. But the way responsible leaders deal with them will make or break them. Sticking to one’s beliefs and convictions, stepping aside – or down – when beliefs and convictions become overwhelmingly detrimental to business, and being innovative at doing the right thing appear to hold the key to effective responsible leadership.</p><img src="https://counter.theconversation.com/content/126286/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kenneth Amaeshi does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
What happens when a leader’s beliefs and decisions have an indirect negative impact on the business?
Kenneth Amaeshi, Professor of Business and Sustainable Development, The University of Edinburgh
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/122652
2019-09-02T12:47:19Z
2019-09-02T12:47:19Z
Politician who turned down a bribe offers a recipe to end South Africa’s malaise
<figure><img src="https://images.theconversation.com/files/290322/original/file-20190830-165977-1dizvg6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Mcebisi Jonas appears at a commission probing grand corruption in South Africa.
</span> <span class="attribution"><span class="source">Alon Skuy © Sunday Times.</span></span></figcaption></figure><p>A book whose author has <a href="https://qz.com/africa/825869/state-capture-report-south-africas-deputy-finance-minister-mcebisi-jonas-turned-down-a-44-million-dollar-bribe-from-the-guptas/">refused a R600 000 000 bribe</a> is a <a href="https://ewn.co.za/2019/08/14/euphoria-around-ramaphosa-s-new-dawn-quickly-dying-says-mcebisi-jonas">book that comes highly recommended</a>. But be warned. The book, After Dawn: Hope after State Capture, is devoid of all autobiography, except one page mentioning Mcebisi Jonas’s feeling of loss when being offered that bribe.</p>
<p>The book contains no biographical details. They are, nevertheless, <a href="https://www.gibs.co.za/news-events/events/forums/Pages/deputy-finance-minister-mcebisi-jonas.aspx">fascinating</a>. For example, he became politically active at the age of 14, and went on to leave South Africa for military training in Angola and Uganda. On his return from exile, his task was to play a crucial role to set up the African National Congress (ANC) and Communist Party structures in the Eastern Cape province.</p>
<p>The book is written to be readable: each chapter starts with a half-page box summary of its main points. After Dawn repeatedly stresses:</p>
<blockquote>
<p>None of the ideas put forward in this book are new, in fact they echo our existing policy … what is required is to put these ideas into action (page 202)</p>
</blockquote>
<p>“These ideas” turn out to be a passionate advocacy from cover to cover of the almost forgotten <a href="https://nationalplanningcommission.wordpress.com/the-national-development-plan/">National Development Plan</a>. This was a comprehensive policy document drawn up by a special ministerial body first constituted in 2009 by then-President Jacob Zuma. It was, however, <a href="https://theconversation.com/south-africas-national-development-plan-can-be-resuscitated-heres-how-84707">never implemented in full</a>.</p>
<p>Jonas has two overarching themes. The first is one of structure. That South Africa’s state-owned enterprises, national, provincial, and municipal bureaucracies must be purged of kleptocrats and incompetents to become meritocratic. The <a href="http://www.psc.gov.za/">Public Service Commission</a> – which was designed to keep the public service honest – must regain its powers to hire and to fire. Political appointees must be confined to the ministries, not departments.</p>
<p>Jonas’s second theme is agency. The task of these meritocratic bureaucracies should be to enable entrepreneurship, and to become entrepreneurial themselves. State-owned enterprises must once again pay their own way, be partly or wholly sold off, or re-absorbed into the line functions of a department.</p>
<p>All this is no less fascinating in its implications for being familiar, well-trodden ground. John Kane-Berman, veteran policy fellow of the Institute of Race Relations, regularly churns out blogs warning all and sundry that the ANC and its communist National Democratic Revolution is steering South Africa directly to communism.</p>
<p>It is clear that Jonas – an ANC leader so senior as to have formerly been a deputy minister of finance – has a communist party history which has left him on economic policy as post-Marxian as the current Communist Parties of China and Vietnam. </p>
<h2>Morale booster</h2>
<p>This book is definitely a booster to morale. Jonas reminds South Africans that their country achieved 5.3% economic growth in 2005. And that he believes it can do it again. </p>
<p>Another point worth boasting about is that the annualised returns on the Johannesburg Stock Exchange are, over the long term, the highest in the world. (p.30) </p>
<p>Jonas argues that South Africa does not lack ideas. Where it falls short is implementation. </p>
<blockquote>
<p>….unlike Singapore, our focus in South Africa has too often been on the plan, rather than on what needs to be done and how to get it done. We stumble at the point of implementation. </p>
</blockquote>
<p>Jonas is clearly sympathetic to the concept of a German or Swedish style class compact to facilitate a return to economic growth. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/290299/original/file-20190830-165981-15oyg2j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/290299/original/file-20190830-165981-15oyg2j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=901&fit=crop&dpr=1 600w, https://images.theconversation.com/files/290299/original/file-20190830-165981-15oyg2j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=901&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/290299/original/file-20190830-165981-15oyg2j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=901&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/290299/original/file-20190830-165981-15oyg2j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1132&fit=crop&dpr=1 754w, https://images.theconversation.com/files/290299/original/file-20190830-165981-15oyg2j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1132&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/290299/original/file-20190830-165981-15oyg2j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1132&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>Jonas holds up Singapore as a model for South Africa to strive to emulate. He concedes that every country has its own idiosyncrasies and that not everything that works in one will work in another. Nevertheless, he expounds the virtues of the island nation’s early obsession with making sure that the majority of the population felt a sense of belonging. And making Singapore relevant to the world. This required absolute clarity of vision about what the country stood for. </p>
<p>Jonas’s favourite economists are <a href="https://www.hks.harvard.edu/faculty/ricardo-hausmann">Ricardo Haussman</a>, César Hidalgo, and Sebastián Bustos (p.155). He particularly admires the way the three academics have developed the concept of economic complexity. As Jonas explains, </p>
<blockquote>
<p>this is a measure of the knowledge in a society (as measured by the notion of ‘person bytes’) as expressed in the products it makes. This, in turn, is closely linked to a country’s level of development and is predictive of its future economic growth</p>
</blockquote>
<p>This, they argue, makes it possible to calculate the economic complexity of a country based on the diversity of exports, their ubiquity, or the number of countries able to produce them. He notes that South Africa has failed to undergo complexity-led transformation. In fact, its portfolio of exports has declined since 1994.</p>
<p>Many of Jonas’s recommendations are in the National Development Plan. One central theme is: remove constraints to competitiveness. </p>
<p>South Africa needs a comprehensive push to higher job productivity because it cannot compete against low-wage countries. It needs to incentivise innovation and double its spend on research and development. Human capacity needs to be expanded. And it shouldn’t hesitate to import skilled persons. </p>
<p>The country’s vision must be to accelerate economic inclusion. To this end it needs a corruption-free, high-performance state. This in turn requires the nature of politics to change, including reform of the ANC.</p>
<p>This is a recurring theme for Jonas. He repeatedly emphasises the need for the ANC to reform itself. He believes strongly that this is vital if South Africa is to move onto a faster growth path.</p>
<h2>Quibbles</h2>
<p>I have some minor quibbles. The parsimonious publisher has not used colour, meaning that all the tables have lines in confusing shades of blurred greys. </p>
<p>As far as the substance is concerned, I disagree with Jonas that digital voting systems can prevent ballot fraud (p.215). A desktop search turns up numerous examples of error or fraud that have occurred in the US and other digital voting countries. </p>
<p>After Dawn deserves the media exposure it is getting. Popularising the ideas and arguments in the book will help them gain traction, and help marginalise the conspiracy theories and smears being pumped out by the kleptocratic fight-back campaign trying to derail efforts to clean up the country’s political and economic systems.</p>
<p><em>After Dawn, by Mcebisi Jonas. Picador Africa, imprint of Macmillan. Johannesburg. 2019. 277pp. Foreword by Cyril Ramaphosa.</em></p><img src="https://counter.theconversation.com/content/122652/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Keith Gottschalk is a member of the ANC, but writes this review in his professional capacity as a political scientist.</span></em></p>
This book is a booster to morale. It tells South Africans they can enjoy the impressive economic growth they once achieved.
Keith Gottschalk, Political Scientist, University of the Western Cape
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/114270
2019-03-26T22:15:43Z
2019-03-26T22:15:43Z
Trump and obstruction of justice: An explainer
<figure><img src="https://images.theconversation.com/files/265951/original/file-20190326-36260-1906ubr.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Special counsel Robert Mueller reached no definitive conclusion about whether President Donald Trump obstructed justice in firing FBI Director James Comey or attacking his own investigation.</span> <span class="attribution"><span class="source">Reuters/Hyungwon Kang, AP Photo/Susan Walsh, Reuters/Jonathan Ernst, Twitter</span></span></figcaption></figure><p>Special counsel Robert Mueller did not find evidence that Trump or his campaign colluded with the Russian government to interfere in the 2016 U.S. presidential election. </p>
<p>But Mueller, who <a href="https://www.nytimes.com/2019/03/22/us/politics/mueller-report.html">submitted his report to the Department of Justice</a> on March 22 after nearly two years of investigation, did not determine whether the president had obstructed justice during the FBI’s investigation into his campaign. </p>
<p>“While this report does not conclude that the president committed a crime, it also does not exonerate him,” <a href="https://www.nytimes.com/interactive/2019/03/24/us/politics/barr-letter-mueller-report.html#g-page-3">the special counsel stated</a>.</p>
<p><a href="https://www.nytimes.com/2019/03/24/us/politics/mueller-report-summary.html">Mueller’s report</a> has not been made public, but Attorney General William Barr does not share Mueller’s uncertainty about an obstruction charge. In a March 24 <a href="https://www.nytimes.com/interactive/2019/03/24/us/politics/barr-letter-mueller-report.html?module=inline">letter to Congress summarizing Mueller’s findings</a>, Barr said he saw insufficient evidence to establish that the president had obstructed justice.</p>
<p>Democrats want to make their own determination about the evidence. They are now <a href="https://www.nbcnews.com/politics/congress/democratic-chairmen-call-barr-submit-mueller-report-congress-april-2-n987241">demanding</a> that Barr’s office release Mueller’s report by April 2.</p>
<p>Truthfully, obstruction of justice is a complicated matter. As a <a href="https://scholar.google.com/citations?user=UN4KCIEAAAAJ&hl=en&oi=ao">law professor and one-time elected official</a>, here’s my explanation of the crime – and its possible application to the president.</p>
<h2>What is obstruction of justice?</h2>
<p>According to <a href="https://www.law.cornell.edu/uscode/text/18/1505">federal law</a>, obstruction occurs when a person tries to impede or influence a trial, investigation or other official proceeding with threats or corrupt intent. </p>
<p>Bribing a judge and destroying evidence are classic examples of this crime. </p>
<p>Other actions may constitute obstruction, too, depending on the context. And some actions that look like obstruction of justice may not be, because the law requires an intention to obstruct as well. </p>
<p>President Trump did many things to influence investigations into him and his aides – but did he do so with “corrupt” intent?</p>
<p>After the FBI’s investigation of Russian election interference revealed that national security adviser Michael Flynn had lied, for example, Trump <a href="https://www.nytimes.com/2017/05/16/us/politics/james-comey-trump-flynn-russia-investigation.html">allegedly told FBI director James Comey</a>, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” </p>
<p>Flynn ultimately <a href="https://www.cnn.com/2017/12/01/politics/michael-flynn-charged/index.html">pleaded guilty</a> of lying to the FBI about his conversation with Russia’s ambassador – an obstruction of justice crime – and is <a href="https://www.nytimes.com/2018/12/18/us/politics/michael-flynn-sentencing.html">awaiting sentencing</a>.</p>
<p>Soon after, Trump <a href="https://www.cnn.com/specials/politics/james-comey-firing">fired Comey</a>, who was overseeing the FBI’s Russia probe.</p>
<h2>How to determine criminal intent</h2>
<p>That behavior may <a href="https://www.politico.com/magazine/story/2018/01/26/mueller-trump-obstruction-of-justice-russia-216532">constitute obstruction of justice</a>, but only if Trump pressured and later fired Comey for “<a href="https://www.lawfareblog.com/was-firing-james-comey-obstruction-justice">corrupt</a>” – meaning willfully improper – reasons. </p>
<p>Determining intent in an obstruction of justice case is often quite challenging for prosecutors, and it requires subjective judgment.</p>
<p>If Trump fired Comey in an effort to prevent the FBI from discovering incriminating information about him or his campaign, that would be “corrupt.”</p>
<p>Alternatively, Trump may have <a href="https://twitter.com/realDonaldTrump/status/985504808646971392">distrusted</a> Comey because he thought he handled the FBI’s investigation of Hillary Clinton poorly, and consequently fired him. That would be his right as head of the executive branch of government.</p>
<p>The president has offered <a href="https://www.latimes.com/politics/washington/la-na-essential-washington-updates-trump-s-statements-linking-russia-1494682462-htmlstory.html">both explanations</a> for <a href="https://www.theatlantic.com/politics/archive/2019/02/andrew-mccabe-fbi-book-excerpt-the-threat/582748/">dismissing Comey</a>. </p>
<p>In a May 2017 interview with NBC News, the president <a href="https://www.reuters.com/article/us-usa-trump-russia/trump-seeks-to-backtrack-on-2017-comments-on-comey-firing-idUSKCN1LF19Q">said</a>, “Regardless of recommendation, I was going to fire Comey” because of “this Russia thing.” </p>
<p>A few minutes later he <a href="https://www.apnews.com/db90fe2d11b0499b87cc0e5c22e52251">said</a> he fired Comey because “he’s the wrong man for that position.”</p>
<p>The objective of Trump’s statement to Comey about “letting Flynn go” is similarly ambiguous. </p>
<p>If the president was merely stating his hope that Flynn would escape the investigation unscathed, it would not constitute obstruction. But if this was Trump’s way of ordering Comey to clear Flynn, it would.</p>
<h2>Other evidence of obstruction</h2>
<p>Sometimes a single action or statement, standing alone, does not constitute obstruction of justice. But, when taken together with other actions, it creates a pattern of behavior that demonstrates corrupt intent.</p>
<p>For example, Trump <a href="https://www.nytimes.com/interactive/2019/02/19/us/politics/trump-attacks-obstruction-investigation.html?action=click&module=RelatedCoverage&pgtype=Article&region=Footer">publicly attacked</a> Mueller, his investigation and other federal investigations into his campaign more than 1,100 times between March 2018 and Feb. 14, 2019, according to The New York Times. </p>
<p>Trump has the constitutional right to mount a “<a href="https://blogs.wsj.com/law/2006/11/10/why-do-defendants-always-mount-a-vigorous-defense/">vigorous defense</a>” to potential criminal charges and, under the <a href="https://www.law.cornell.edu/constitution/first_amendment">First Amendment</a>, to voice his opinions.</p>
<p>But the president’s behavior toward Comey looks more damning when viewed alongside his efforts to discredit the special counsel’s work. </p>
<h2>Obstruction can occur even without collusion</h2>
<p>Because it can be so difficult to discern a person’s intent, prosecutors often charge obstruction combined with other related charges. </p>
<p>In 1974, when the House of Representatives filed charges against <a href="http://watergate.info/impeachment/articles-of-impeachment">President Richard Nixon</a> as part of the impeachment process, it accused him of obstructive conduct that also violated other laws, including his authorizing <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/050174-2.htm">payments to buy the silence of potential witnesses</a> – bribery.</p>
<p>Nixon resigned and was given a <a href="https://www.vox.com/2014/8/7/5970967/what-was-watergate-scandal-nixon">presidential pardon for these crimes</a>.</p>
<p>Similarly, in 1998, when the House of Representatives impeached <a href="https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/articles122098.htm?noredirect=on">President Bill Clinton</a> on obstruction charges, it also charged him with perjury. He was acquitted on both counts.</p>
<p>While other charges are common in obstruction cases, they are not required. A person can be guilty of obstruction even when they are not trying to cover up their other misconduct.</p>
<p>This is important in Trump’s case because, in Barr’s view, if the president did not collude with Russia – as Mueller concluded – then there was nothing to obstruct.</p>
<p>“The evidence does not establish that the President was involved in an underlying crime related to Russian election interference,” Barr <a href="https://www.nytimes.com/interactive/2019/03/24/us/politics/barr-letter-mueller-report.html">wrote</a> to Congress, “and … the absence of such evidence bears upon the President’s intent with respect to obstruction.”</p>
<p>Legally, however, obstruction can still occur even in the absence of an underlying crime. President Trump might have interfered in the FBI and special counsel investigations not to protect himself from collusion charges but to protect members of his family or inner circle. </p>
<p>Ultimately, seven Trump operatives were <a href="https://abcnews.go.com/Politics/breakdown-indictments-cases-muellers-probe/story?id=61219489">indicted during Mueller’s investigation</a>. </p>
<h2>What happens next?</h2>
<p>If Congress receives the full Mueller report, lawmakers will assess all evidence gathered during the 22-month special counsel investigation and together with their own investigation, make a determination about whether Trump obstructed justice.</p>
<p>They may agree with Barr that Trump did not intend to obstruct justice. But if there is a strong case that he committed that crime, Trump likely won’t face charges while in office because Department of Justice <a href="https://www.justice.gov/file/19351/download">guidelines</a> state that sitting presidents should not be prosecuted. </p>
<p>If obstruction charges are merited, therefore, Congress would have to raise them during an impeachment proceeding – a process House Speaker Nancy Pelosi so far <a href="https://www.washingtonpost.com/news/magazine/wp/2019/03/11/feature/nancy-pelosi-on-impeaching-president-trump-hes-just-not-worth-it/">opposes</a>.</p>
<p>Alternatively, Trump could be charged with obstruction after he leaves office.</p><img src="https://counter.theconversation.com/content/114270/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Between 2002 and 2008, David Orentlicher served in the Indiana House of Representatives. He ran for Congress in 2015 as a Democrat.</span></em></p>
Legally, a person can obstruct justice even if he committed no other crime – though it is harder to prove. It all depends on the intent behind pressuring investigators, say, or firing an FBI director.
David Orentlicher, Professor of Law and Co-Director, Health Law Program, University of Nevada, Las Vegas
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/113234
2019-03-11T21:37:19Z
2019-03-11T21:37:19Z
Canada’s SNC-Lavalin decisions affect people in the world’s poorest countries
<figure><img src="https://images.theconversation.com/files/263055/original/file-20190310-86690-pqhb08.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Padma Bridge Project in Bangladesh is seen in this February 2018 photograph. SNC-Lavalin was accused of bribing officials in the construction of the bridge, though charges were later dropped. </span> <span class="attribution"><span class="source">Md Shaifuzzaman Ayon</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>Over the last month, the Canadian government has been embroiled in a political controversy, involving allegations that Prime Minister Justin Trudeau put undue pressure on Jody Wilson-Raybould, the country’s former justice minister and attorney general, to negotiate a deferred prosecution agreement with Québec engineering giant SNC-Lavalin Group.</p>
<p>In Canada, such agreements — which have already been adopted in the United Kingdom and the United States — empower the <a href="https://www.ppsc-sppc.gc.ca/eng/dpp-dpp/index.html">Director of Public Prosecutions</a> to negotiate reduced sentences with companies whose officials have been accused of engaging in <a href="https://www.lawtimesnews.com/author/dale-smith/bill-aims-to-change-way-white-collar-crime-punished-15806/">criminal acts</a>. </p>
<p>In the midst of the saga, the prime minister’s principal secretary and two senior members of his government – Wilson-Raybould and Jane Philpott – have resigned from cabinet, and the SNC-Lavalin affair shows no signs of abating.</p>
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<p>
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<strong>
Read more:
<a href="https://theconversation.com/saying-no-to-power-the-resignations-of-women-cabinet-members-112693">Saying no to power: The resignations of women cabinet members</a>
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<p>So far, the vast majority of political and media commentary has focused on the appropriateness of the actions of the Prime Minister’s Office and the economic impact of jeopardizing 9,000 jobs in Canada should SNC-Lavalin face criminal prosecution.</p>
<p>These aren’t inconsequential matters. But they are part of a much wider conversation that needs to be had about the economic and political consequences of allowing and condoning corrupt business practices outside of Canada.</p>
<h2>Guarding against corruption</h2>
<p>Promoting and protecting jobs in Canada is part of any government’s political mandate. But so too is the responsibility of ensuring that Canadian businesses are not creating further costs for countries whose governments and populations are least able to bear the burden of endemic corruption.</p>
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Read more:
<a href="https://theconversation.com/snc-lavalin-canadas-anti-foreign-bribery-laws-did-their-job-112758">SNC-Lavalin: Canada’s anti-foreign bribery laws did their job</a>
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<p>What are some of these burdens?</p>
<p>First, bribery inflates the costs of undertaking infrastructure projects that have real and significant benefits for poor people in the developing world.</p>
<p>Take for instance the case of Bangladesh, a country in which SNC-Lavalin was accused of bribing officials in the construction of the Padma Bridge, a US$1.2 billion project that was <a href="https://www.bbc.com/news/world-south-asia-18655846">being funded by the World Bank.</a></p>
<p>According to a recent <a href="https://www.thedailystar.net/frontpage/road-construction-cost-way-too-high-1423132">World Bank study,</a> road construction in Bangladesh is up to 10 times more expensive than it is in India and China, reflecting the costs of high-level corruption. Although the charges against SNC-Lavalin in Canada were <a href="https://www.dhakatribune.com/bangladesh/corruption/2017/02/11/3-snc-lavalin-officials-acquitted-padma-bridge-graft-case/">ultimately dropped</a>, the company’s international subsidiary — SNC-Lavalin Inc. — was barred from bidding on all future World Bank infrastructure projects for a <a href="http://www.worldbank.org/en/news/press-release/2013/04/17/world-bank-debars-snc-lavalin-inc-and-its-affiliates-for-ten-years">period of 10 years.</a> </p>
<p>Second, bribery narrows the pool of possible applicants, reducing the quality of services and benefits. Tendering large infrastructure projects is a complex process, <a href="https://www.u4.no/publications/corruption-in-the-construction-of-public-infrastructure-critical-issues-in-project-preparation.pdf">involving many officials</a>, but shrinking the pool makes it difficult to ensure that contractors are meeting their targets and deadlines.</p>
<p><a href="https://www.theguardian.com/cities/ng-interactive/2018/jul/30/what-china-belt-road-initiative-silk-road-explainer">China’s Belt and Road Initiative</a>, aimed at building construction projects in more than 60 countries to connect Asia, Africa and Europe, has widened the field. </p>
<p>But its approach entails using debt to secure infrastructure contracts, producing work that has been described <a href="https://www.nytimes.com/2018/06/25/world/asia/china-sri-lanka-port.html">as sub-standard</a> and <a href="https://www.nytimes.com/2018/12/24/world/americas/ecuador-china-dam.html">incomplete.</a> </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/263135/original/file-20190311-86682-1nn59pq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/263135/original/file-20190311-86682-1nn59pq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/263135/original/file-20190311-86682-1nn59pq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/263135/original/file-20190311-86682-1nn59pq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/263135/original/file-20190311-86682-1nn59pq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/263135/original/file-20190311-86682-1nn59pq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/263135/original/file-20190311-86682-1nn59pq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">In this May 2017 photo, Chinese President Xi Jinping speaks at the opening of the Belt and Road Forum.</span>
<span class="attribution"><span class="source">(AP Photo/Ng Han Guan)</span></span>
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<p>Third, bribery puts money in the hands of a small and powerful elite, further undermining the prospects for democratic governance that are so strongly associated with <a href="http://documents.worldbank.org/curated/en/124841468185354669/pdf/WPS7408.pdf">improved living standards and economic performance</a>. </p>
<h2>An ethical foreign policy?</h2>
<p>In the case of Libya, SNC-Lavalin stands accused of paying $48 million in bribes to public officials, including Saadi Gadhafi, the son of Libya’s former dictator, <a href="https://www.mtlblog.com/news/canada/snc-lavalin-paid-for-dictator-muammar-gaddafis-son-to-have-a-wild-montreal-weekend-with-porn-and-escorts">for travel, hotels and escorts.</a> </p>
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<img alt="" src="https://images.theconversation.com/files/263056/original/file-20190310-86682-1s8t6zm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/263056/original/file-20190310-86682-1s8t6zm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=926&fit=crop&dpr=1 600w, https://images.theconversation.com/files/263056/original/file-20190310-86682-1s8t6zm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=926&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/263056/original/file-20190310-86682-1s8t6zm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=926&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/263056/original/file-20190310-86682-1s8t6zm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1164&fit=crop&dpr=1 754w, https://images.theconversation.com/files/263056/original/file-20190310-86682-1s8t6zm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1164&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/263056/original/file-20190310-86682-1s8t6zm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1164&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Saadi Gadhafi, third son of the Libyan leader, is seen in this February 2005 photo.</span>
<span class="attribution"><span class="source">(AP Photo/Dan Peled)</span></span>
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<p>Beyond the obvious legal and ethical implications of this particular case, a major problem with corruption of this kind is that it hollows out the foundations for democratic governance that are absolutely essential for achieving <a href="http://www.worldbank.org/en/topic/governance/brief/anti-corruption">long-term sustainable development.</a> </p>
<p>Defenders argue that paying bribes <a href="https://www.forbes.com/sites/jwebb/2016/10/27/85-of-managers-resort-to-bribery-when-trading-in-developing-economies/#7ee56c1e3d03">is part of doing business</a>, but doing so also undermines critical public institutions, such as the judiciary, the executive and the civil service. It diverts public and private investment away from employment and infrastructure (as well as education and health care) into the assets and foreign bank accounts of political elites. </p>
<p>When the Liberals came to power in 2015, they promised to <a href="http://pm.gc.ca/eng/minister-international-development-and-la-francophonie-mandate-letter">“refocus Canada’s development assistance on helping the poorest and most vulnerable, and supporting fragile states.”</a> </p>
<p>With the case of SNC-Lavalin, the government now finds itself in the unenviable position of having to choose between supporting a company that has been accused of engaging in widespread corruption or sticking to the humanitarian principles that were part of its original mandate. </p>
<p>It’s true the company employs more than 50,000 people in <a href="http://www.snclavalin.com/en/files/documents/publications/fact-sheet-corp-usletter_en.pdf">50 countries around the world</a>, but it must also be noted that SNC-Lavalin’s actions —and those of the Prime Minister’s Office — have implications for people living outside of Canada, including those in some of the world’s poorest and <a href="https://www.cbc.ca/news/politics/snc-lavalin-corruption-dpa-what-happens-next-1.5049456">most unstable countries</a>.</p>
<p>Although they don’t vote in Canadian elections, and they probably don’t hold shares in SNC-Lavalin, they are stakeholders too, and their interests should be part of the conversation. Such are the foundations of an ethical foreign policy.</p><img src="https://counter.theconversation.com/content/113234/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Craig Anthony Johnson receives funding from the Social Science and Humanities Research Council of Canada (SSHRC). </span></em></p><p class="fine-print"><em><span>Iftekharul Haque does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Promoting Canadian jobs is part of any government’s political mandate, but so too is the responsibility of ensuring that Canadian businesses are not supporting or condoning corruption abroad.
Craig Anthony Johnson, Professor and Director, Guelph Institute of Development Studies, University of Guelph
Iftekharul Haque, Ph.D. candidate, L’Université d’Ottawa/University of Ottawa
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/112758
2019-03-06T23:12:27Z
2019-03-06T23:12:27Z
SNC-Lavalin: Canada’s anti-foreign bribery laws did their job
<figure><img src="https://images.theconversation.com/files/262302/original/file-20190306-48438-3izwk7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">It could be easy to scoff at Canadian laws that might have allowed SNC-Lavalin to avoid prosecution for bribery and fraud. But they're working exactly as they should.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>At the heart of the scandal engulfing Prime Minister Justin Trudeau’s government are allegations that it attempted to politically interfere with the prosecution of Québec engineering giant SNC-Lavalin. </p>
<p>We continue to learn more about the allegations. Both Gerald Butts, Trudeau’s former principal secretary, and Michael Wernick, Clerk of the Privy Council, <a href="https://nationalpost.com/pmn/news-pmn/canada-news-pmn/the-latest-butts-wernick-testify-at-justice-committee-on-snc-lavalin-affair">have testified about the former attorney general’s allegations</a> to the House of Commons Justice Committee, denying Jody Wilson-Raybould was pressured to allow SNC-Lavalin to avoid criminal prosecution.</p>
<p>The prime minister also says <a href="https://www.cbc.ca/news/politics/trudeau-snc-lavalin-1.5046438">he was unaware she ever felt pressured.</a></p>
<p>But we should not reflexively impugn laws that many Canadians might now associate with SNC-Lavalin, including those that could have terminated its prosecution.</p>
<p>The <a href="https://laws-lois.justice.gc.ca/eng/acts/c-45.2/">anti-foreign bribery law</a> that SNC-Lavalin is charged with violating, and the <a href="https://laws-lois.justice.gc.ca/eng/acts/C-46/page-179.html?txthl=remediation+agreement#s-715.3">remediation agreement</a>that Wilson-Raybould <a href="https://nationalpost.com/news/canada/read-jody-wilson-rayboulds-full-remarks-to-the-house-of-commons-justice-committee">testified</a> that she was pressured to pursue, are both promising pieces of Canadian policy. They’re aimed at combating corruption in international business and corporate crime.</p>
<p>While <a href="https://nationalpost.com/opinion/conrad-black-the-snc-lavalin-affair-is-overblown-but-the-liberals-still-bungled-it">some have raised questions</a> about why Canada prohibits its businesses from bribery overseas — particularly in countries where bribery can be common — Canada’s efforts to fight foreign bribery are not only required, but urgently needed.</p>
<p>Canada assumed obligations under international law to criminalize foreign bribery by becoming a party to the Organisation for Economic Cooperation and Development’s (the OECD) <a href="http://www.oecd.org/corruption/oecdantibriberyconvention.htm">Anti-Bribery Convention</a>, as well as the Organization for American States’s <a href="http://www.oas.org/en/sla/dil/inter_american_treaties_B-58_against_Corruption.asp">Inter-American Convention Against Corruption</a> and the United Nations <a href="https://www.unodc.org/unodc/en/treaties/CAC/">Convention Against Corruption</a>.</p>
<p>Foreign bribery prohibitions focus on only one side of a bribery transaction — the “supply” rather than the “demand” for bribery — but they’re needed to address corruption in international business.</p>
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Read more:
<a href="https://theconversation.com/the-snc-lavalin-affair-and-the-politics-of-prosecution-111778">The SNC-Lavalin affair and the politics of prosecution</a>
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<p>Host states to international business can prosecute public officials for accepting bribes, but institutional weaknesses and complicity of government officials in corruption can often make this difficult in practice.</p>
<h2>Curbing the export of corruption</h2>
<p>Prohibitions of foreign bribery by wealthy OECD states like Canada that have both significant regulatory capacity and active engagement with the international economy can fill the void. They can curb <a href="https://www.transparency.org/whatwedo/publication/exporting_corruption_progress_report_2014_assessing_enforcement_of_the_oecd">“the export of corruption globally,”</a> according to Transparency International, a well-respected anti-corruption organization.</p>
<p>This is all the more necessary for Canada — a leading player in the global extractive sector, well-known for its <a href="http://www.oecd.org/corruption/oecd-foreign-bribery-report-9789264226616-en.htm">high risk of corruption</a>. </p>
<p>There is evidence that anti-foreign bribery laws are working. A <a href="https://www.cambridge.org/core/journals/international-organization/article/nonstate-actors-and-compliance-with-international-agreements-an-empirical-analysis-of-the-oecd-antibribery-convention/D1C73B9EB2378B30981F8C9C99ADB4A9">recent study</a> finds that “even minimal enforcement” of these laws makes a corporation less likely to pay bribes abroad. </p>
<p>Canada and all states stand to benefit if corruption in international business is reduced. The <a href="https://www.un.org/press/en/2018/sc13493.doc.htm">cost of corruption</a> is estimated at five per cent of global gross domestic product, or US$2.6 trillion dollars. </p>
<p>Reducing corruption globally is also expected to advance the UN’s <a href="https://www.un.org/sustainabledevelopment/peace-justice/">sustainable development goals</a> and reduce <a href="http://www.thievesofstate.com/">security risks</a>, not to mention improve the daily lives of citizens in <a href="https://www.transparency.org/news/pressrelease/corruption_perceptions_index_2017_shows_high_corruption_burden_in_more_than">two-thirds of the world’s countries</a> with high levels of corruption. </p>
<h2>The promise of a new enforcement tool</h2>
<p>The remediation agreements that the Prime Minister’s Office allegedly pressured Wilson-Raybould to consider were introduced into law in June 2018. A remediation agreement allows a corporation accused of certain criminal offences, including foreign bribery, to obtain a stay of proceedings if the corporation agrees to specific penalties. </p>
<p>SNC-Lavalin was one of <a href="https://www.acec.ca/files/Advocacy/ACEC%20Submission%20on%20DPA%20Consultation.pdf">many businesses</a> that supported remediation agreements, as did <a href="http://www.transparencycanada.ca/tica-publication/another-arrow-quiver-consideration-deferred-prosecution-agreement-scheme-canada/?">Transparency International Canada</a>.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/262305/original/file-20190306-48450-yu5ypg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/262305/original/file-20190306-48450-yu5ypg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/262305/original/file-20190306-48450-yu5ypg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=436&fit=crop&dpr=1 600w, https://images.theconversation.com/files/262305/original/file-20190306-48450-yu5ypg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=436&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/262305/original/file-20190306-48450-yu5ypg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=436&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/262305/original/file-20190306-48450-yu5ypg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=548&fit=crop&dpr=1 754w, https://images.theconversation.com/files/262305/original/file-20190306-48450-yu5ypg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=548&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/262305/original/file-20190306-48450-yu5ypg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=548&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">SNC-Lavalin President and CEO Neil Bruce following the company’s annual general meeting in Montreal in May 2018. Bruce stressed the need for changes to Canada’s anti-corruption measures ‘as expeditiously as possible.’</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Graham Hughes</span></span>
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<p>Looking at international trends can help us understand why remediation agreements may have been attractive to domestic organizations and the government, even without the SNC-Lavalin prosecution. </p>
<p>As I’ve <a href="http://ubclawreview.ca/issues/vol-51-no-3-september-2018/">described elsewhere</a>, Canada originally implemented its international anti-foreign bribery obligations using exclusively criminal-law tools — criminal prohibitions and criminal investigations and prosecutions. </p>
<p>Other OECD states used a broader range of tools, including civil or administrative prohibitions and diversionary resolution mechanisms like we see in the deferred prosecution agreements that are common in the United States. </p>
<p>But when it comes to enforcement, the traditional criminal-law tools that Canada had relied upon pose real challenges. </p>
<p>Obtaining evidence to meet the high threshold of criminal guilt can be particularly difficult when the defendant is a corporation. It’s even more demanding for a cross-border crime like foreign bribery where evidence and witnesses can be an ocean away. </p>
<p>The <a href="http://www.oecd.org/corruption/canadasenforcementoftheforeignbriberyoffencestilllaggingmusturgentlyboosteffortstoprosecute.htm">OECD has criticized Canada</a> for its “lagging” enforcement of anti-foreign bribery laws. With a <a href="http://www.oecd.org/corruption/oecd-anti-bribery-convention-phase-4.htm">new round of OECD reviews under way</a>, Canada is likely to face more international pressure. </p>
<h2>Signalled a commitment</h2>
<p>And so by adopting remediation agreements, Ottawa was able to signal its commitment to fighting foreign bribery. It also adopted a resolution tool — remediation agreements — that could ease some of its enforcement challenges.</p>
<p>The availability of remediation agreements provides an incentive to corporations to self-report wrongdoing and co-operate in any investigation. Such agreements also encourage reforms to corporate policy that can prevent criminal wrongdoing in the first place. </p>
<p>But to deliver on these promises, it’s crucial that remediation agreements operate as one enforcement tool within a broader regime that includes traditional criminal prosecutions. </p>
<p>The Trudeau government appears to have been well aware of the need to use remediation agreements judiciously. </p>
<p>The government solicited input during <a href="https://www.tpsgc-pwgsc.gc.ca/ci-if/ar-cw/aps-dpa-eng.html">public consultations</a> and <a href="https://laws-lois.justice.gc.ca/eng/acts/C-46/page-179.html?txthl=remediation+remedy#s-715.32">identified criteria</a> in the Criminal Code that would allow a prosecutor to invite a corporation to negotiate a remediation agreement. </p>
<p>These criteria include conditions that would weigh in favour of such an agreement, such as whether the corporation self-reported to authorities or made efforts to prevent future wrongdoing. </p>
<p>But other criteria — including whether the corporation faces allegations, sanctions or convictions for other criminal offences —would add up on the other side of the ledger. </p>
<h2>Criminal Code criteria</h2>
<p><a href="https://laws-lois.justice.gc.ca/eng/acts/C-46/page-179.html">The Criminal Code also identifies criteria</a> that “the prosecutor must not consider.” Specifically, “the national economic interest” and “the identity of the organization” are not to be weighed if the corporation, like SNC-Lavalin, is charged with foreign bribery.</p>
<p>By adding remediation agreements to a legislative framework that sets clear criteria for eligibility, Canadian law has the potential to improve upon deferred prosecution agreements. DPAs developed in the U.S. through prosecutorial practice, and lack such explicit legislative guidance. </p>
<p>The eligibility criteria set out in the Criminal Code had been considered by Canadian prosecutors when they decided against allowing SNC-Lavalin to negotiate a remediation agreement. </p>
<p>Any political interference in this determination would undermine the law’s safeguards to ensure that remediation agreements are used judiciously and the promise made by such agreements to encourage good corporate behaviour.</p>
<p>And so political interference not only threatens prosecutorial independence and the rule of law, but also the potential of the new enforcement tool for corporate wrongdoing that the Trudeau government created.</p><img src="https://counter.theconversation.com/content/112758/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elizabeth Acorn receives funding from the Social Sciences and Humanities Research Council.</span></em></p>
While the SNC-Lavalin scandal rages on, we should not lose sight of the importance of combating bribery crimes and enforcing the laws to prevent it.
Elizabeth Acorn, Postdoctoral Associate and Lecturer in Ethics, Politics and Economics, Yale University
Licensed as Creative Commons – attribution, no derivatives.