Robert Barrington, Professor of Anti-Corruption Practice at the University of Sussex, writes about a new book written by staff, students and alumni from the Centre for the Study of Corruption.
‘Understanding Corruption: how corruption works in practice‘ is a new book written jointly by the faculty of the Centre for the Study of Corruption. It tells the story of how corruption works in practice, through a detailed analysis of eighteen emblematic cases, covering bribery, kleptocracy, political corruption and corrupt capital. The case studies span the world from the UK, France and United States to Equatorial Guinea, Malaysia, Turkey, Brazil and Azerbaijan. As well as giving one of the most complete descriptions of corruption available, the book offers a toolkit to examine new cases through introducing the CSC Case Study template. Although the book was not specifically written with current events in mind, it is very topical. Professor Liz David-Barrett, Director of the Centre for the Study of Corruption and one of the lead authors, notes: ‘We can see a direct link between our research in this book and what is happening with Russia and Ukraine. Our case studies examine how former Soviet Union countries have been captured by corrupt elites, how they launder their money and reputations through centres such as London, and the impact on the victims. Corrupt kleptocrats and oligarchs keep their wealth and power through repression. Pro-democracy and anti-corruption movements that challenge those in power must be ruthlessly put down. Meanwhile, those who benefit from such regimes enjoy their corruptly-obtained wealth in centres such as London and Paris, aided by a willing cohort of professional enablers.’
As well as Professor David-Barrett’s work on Kleptocracy & State Capture, the book contains chapters on ‘The secret world of corrupt capital’ by Professor Robert Barrington and ‘Professional enablers in London’ by Ben Cowdock, a senior researcher at Transparency International. Dr Sam Power looks at how lobbying, the revolving door and political party financing can lead to political and policy capture in global financial centres such as the United Kingdom and United States.
“The contributors are all current faculty members or recent students at the Centre for the Study of Corruption (CSC). Such a concentration of expertise underpins CSC’s status as the UK’s foremost centre of academic research on the topic of corruption.” – Paul Heywood, Sir Francis Hill Professor of European Politics, University of Nottingham
“This is an important and original book, laying out what corruption is, how it works, and how it should be tackled. I wish it had existed when I was a student.” – Oliver Bullough, author of Butler to the World
“The book leads the reader on a tour around the world to describe in a simple and clear way how corruption operates in practice. The collection of case studies shows that corruption is a global, complex, and context-sensitive phenomenon that does not allow for one-fits-all solutions. Excellent teaching material.” – Delia Ferreira Rubio, Chair, Transparency International
“This book uses a storytelling approach to explain complex corruption cases, making it an easy read. Not only does it show how corruption occurs, but it also exposes the reader to different approaches to tackling corruption. I liked that the book identified the victims in each case. Using case studies is a brilliant way to increase the understanding of corruption which is necessary for motivating people to act against it. I highly recommend this book.” – Onyinye Ough, Executive Director, Step Up Nigeria
“Understanding Corruption illuminates the corruption problem in its many different manifestations covering, importantly, not only the more commonly understood phenomenon of bribery, but also the more complex forms such as political corruption or state capture. The case study approach of the book makes it a fascinating read for both veterans and new entrants to the anti-corruption world.” – Gretta Fenner, Basel Institute on Governance
“A generation’s research and reform experiences have taught us much about corruption, its consequences, and possible approaches to control, but much of that knowledge is scattered across many sources and discussions. Understanding Corruption offers a valuable overview and synthesis of what we do – and do not – know, examining major trends in thought and practice while carefully dissecting a variety of cases. It is an essential work for students and teaching, and will help guide the research and debates to come.” – Michael Johnston, Charles A. Dana Professor of Political Science Emeritus, Colgate University, USA
“Almost 30 years since anti-corruption became part of the global development agenda this is a crucial collection of essays exploring and deepening understanding about the multitude of ways corruption continues to impact lives across the planet; and how corruption itself has morphed over the decades. Essential reading.” – John Githongo, The Elephant and CEO, Inuka Kenya Ni Sisi!
“This book with its deceptively simple title offers readers a rich variety of case-study material that sets out very clearly why those of us working in the anti-corruption field – whether policy-makers, practitioners or academics – need to go beyond existing assumptions about what corruption is, why it happens and then what to do about it. By being more open and more consistent in our diagnosis of the problem, the volume shows how this can help us better think about both the potential benefits and the potential harms of various strategies and interventions, and why this matters.” – Heather Marquette, Professor of Development Politics, and Director of the Serious Organised Crime and Anti-Corruption Evidence research programme, University of Birmingham
Over the last decade, investigative journalists have broken a series of blockbuster stories on financial secrecy and illicit financial flows. These clusters of stories have typically been based on, and named after, leaked documents and data from law firms, financial institutions, or government agencies: LuxLeaks (2014), SwissLeaks (2015), the Panama Papers (2016), the Paradise Papers (2017), the FinCEN Files (2020), the Pandora Papers (2021), and, most recently, Suisse Secrets (2022). One of the remarkable things about each of these cases is that they involved not a single story or series of stories by a single media outlet in a single country, but rather were the product of a transnational collaboration of a network of investigative journalists. It has always been the case that investigative journalism has been a vital tool for exposing and deterring corruption. But what we seem to be seeing now is the emergence of a transnational coalition of journalists that is sufficiently agile, dynamic, and capable of working across borders to be a match for the perpetrators of grand corruption, money laundering, and other forms of organized crime.
Indeed, these transnational networks of investigative journalists can be seen as a new institution of global governance. Yet their emergence presents a series of puzzles. How have they overcome the difficulties that plague law enforcement when they try to act transnationally? How have journalists learned to trust one another in handling sensitive data, and to have faith that their colleagues will hold off on publishing until the agreed date? In addition to questions like these, the emergence of transnational networks of investigative journalists raises a broader question: What does this new form of global governance add to our collective efforts to tackle grand corruption?
With support from the UK government’s Serious Organised Crime and Anti-Corruption Evidence (SOC ACE) programme, we have been investigating these questions, principally through interviews with investigative journalists in Latin America and the Balkans who have participated in these networks. Our research has highlighted three important features of these transnational journalistic networks.
First, transnational networks of investigative journalism have benefited from a transformed funding model. Indeed, this new form of journalistic cooperation is in some ways a response to the crisis that regular journalism has faced in recent years. A decade ago, investigative journalism—which is resource-intensive and slow work—looked set to die out as the newspaper business crumpled under the strains of free online content. In many countries, local journalism has collapsed because of these market pressures, and the political sensitivity of reporting on corruption made it especially vulnerable to cuts. While it is still hard for local media to finance investigative journalism, transnational investigative networks have through their work demonstrated that they bring public benefit. And that has enabled them to access funding through other methods, including individual donors and international foundations that make grants in line with their broader mission to maintain a free media.
Second, there has been a shift in the culture of journalism away from a collection of “lone wolves” competing for career-burnishing scoops, and toward a more collaborative and mutually supportive model. That is in part because, as several journalists explained to us, investigating and writing about the perpetrators of grand corruption remains an extremely dangerous business, and transnational cooperation helps reduce the inherent risks of taking on the powerful and well-connected. Part of this risk-mitigation is due to safety in numbers. As one journalist told us, “I lived in a small town and if I was going to publish something by myself on corruption I felt completely unsafe. I didn’t have any support. Once I received a death threat after publishing something. With the transnational work you have a network of support, and it’s not only your name that becomes a target or is connected to a publication, it’s loads of names being connected.” Relatedly, the involvement of many journalists in a network makes it possible for individual journalists who might be at risk if their names are connected to certain stories to shift the story to someone else in the network. If a case is highly sensitive in one country, for example, the network might pass it to someone who does not live there. This approach can also help evade curbs on media freedom. Notably, none of the Suisse Secrets stories have been published under the bylines of Swiss reporters, out of concern that these reporters could be prosecuted under Switzerland’s archaic secrecy laws. Similarly, other journalists have told us that they used transnational networks to get around Nicaragua’s laws against publishing stories based on leaks. Once the story has been published elsewhere, outside the jurisdiction of those laws, a synthesis can more safely be reported in the Nicaraguan media.
Third, transnational networks of journalists have created new tech tools and developed methods that are helping to build the capacity of the global anticorruption community. The Organised Crime and Corruption Reporting Project has brought together journalists and data scientists to develop an investigative dashboard, called Aleph, that helps journalists all over the world to find company ownership records and other information using data from public records as well as data from past leaks. The networks also sometimes assist with access to tools and data that might be too expensive for small outlets to finance, such as satellite information, export-import figures, and telephone numbers or addresses. Some networks have in-house data scientists to perform sophisticated searches and analyses. This tech revolution also means that it is now much easier for whistleblowers and other sources to contact journalists anonymously and provide them with huge quantities of information in electronic form. Technology also facilitates the use of the investigative journalists’ reports by law enforcement: The journalists’ articles, and the databases on which those stories are based, create an archive that can be useful to law enforcement looking for evidence, especially now that search engines make it easy to find information from the past and connect the dots.
Transnational investigative journalism is now an important part of our global armory against grand corruption. But there are limits to its impact. Journalists can discover corruption schemes, or evidence of them, but they cannot prosecute. Relatively few of the cases of cross-border corruption revealed by even the most spectacular leaks have led to trials and verdicts, because it is eventually up to domestic authorities to prosecute, and that legal process is fraught with obstacles. Similarly, it is not clear that all the great work that journalists do to expose legal gaps and institutional weaknesses is provoking systemic reform. Once public attention subsides, it takes Herculean efforts from the anticorruption community to get governments to consider new regulatory solutions against tax evasion and money laundering. Yet before these networks existed, most cases of cross-border corruption went undiscovered as well as unprosecuted. Transnational networks of investigative journalists provide unsolicited but rigorous narratives linking information and actors, and the evidence they uncover can be used both by the general public and by law enforcement agencies. In doing so, they are performing an essential function in the global fight against grand corruption and illicit finance.
In light of recent scandals involving the British royal family, Professor Robert Barrington examines whether it is appropriate to use the term corruption.
Monarchies are no strangers to corruption. This does not just mean the Tudors or the Habsburgs or the Romanovs. Look around the word today and you will see allegations about the royal families of Spain, Sweden, Saudi Arabia, Thailand and Dubai, to name but a few. So what should we make of recent stories involving the British royal family? Is there corruption at the heart of the British establishment as some in the media claim, or have we seen some one-off poor behaviours from individuals who are too cut off from the world to know better? And, perhaps most crucially, does it matter?
What we are seeing with the royal family is behaviour which is on the borderline of corruption – as well as being potentially criminal. We are certainly seeing absolute failures of integrity. It matters if you think the monarchy matters to the UK, either in terms of national reputation, or as part of the country’s constitution, or perhaps less tangibly as exemplars for the nation’s sense of itself.
The UK has long had an ambivalent relationship with the concept of corruption: happy to point out that it happens abroad, but reluctant to admit that it might happen at home. I will not examine here the long-running theoretical argument that having a rich and privileged unelected monarch alongside a democracy is a form of corruption hardwired in to the constitution- that is a catch-all argument frequently rolled out by those who wish to discredit or abolish the monarchy for other reasons. The focus here is three recent cases:
· Prince Andrew and under-age sex – although in Prince Andrew’s case, there are multiple stories that could be selected, such as the inflated price agreed for the sale of his home to a Kazakh oligarch.
· The Duchess of Cornwall (Camilla)’s nephew and Conservative Party donors.
· Access and honours for donors to Prince Charles’s charities.
In each of these cases, we can apply the definition of ‘abuse of entrusted power for private gain’ to give a sense of whether there has been corruption. There is certainly entrusted power in the monarchy. So we will need to probe the issues of abuse and private gain, and whether the entrusted power extends beyond the Queen and the immediate heir to the throne.
The Prince Andrew case of alleged sex with a trafficked minor would without doubt qualify as abuse. And if you assume that private gain includes personal gratification then you would seem to have a case of corruption (if the allegations are true). But the question of corruption hinges on the notion of entrusted power. If Prince Andrew was having sex, as alleged, was this in his capacity as a person with entrusted power? On the one hand, a Prince (and the associated power) does not stop being a Prince when he takes his clothes off. What might not be corruption as an ordinary citizen, such as for Epstein’s other paedophile friends, might become corruption when an office-holder does the same thing. But on the other hand, even for a public figure, there must be some point at which they are acting in a private capacity. It can still be badly wrong, and prosecutable, without being corruption. Over and above breaking the law, an errant parliamentarian might be charged
with ‘bringing the House into disrepute’, and Prince Andrew’s case is perhaps more akin to ‘bringing the monarchy into disrepute’ than corruption. Whether corruption or not, the sordid episode, compounded by lies and the sense of impunity, is a gross breach of integrity and trust.
As to the sale of his former residence at a surprisingly high price to a Kazakh oligarch, and his subsequent business dealings with Kazakhstan, they also look to be close to the line of corrupt dealings – although as so often with a very untransparent royal family, that is likewise an assessment based on allegation rather than proven fact.
The Duchess of Cornwall (Camilla)’s nephew, Ben Elliot, is co-Chairman of the Conservative party, and runs a ‘concierge’ business that provides exclusive services to wealthy people. The factors that lead us to ask whether there is any corruption at play are the combination of his business activities with his political position and his relationship to the royal family. Did these different things mix, and can this fall under a definition of corruption? A case recently in the news has involved a client of Elliot’s company, who was a Conservative party donor, and whom Elliot also introduced to Prince Charles and Camilla. It is not clear what the client or Prince Charles expected from this; it is clear that Camilla’s nephew was being paid, and was also able to consolidate his political influence through recruiting Conservative party donors. Was this an act of corruption? There is cronyism and the question of whether political donations carry an implied expectation of favours. It is not quite clear who holds the entrusted power (arguably Elliot as a political figure), whether there was an abuse (such as an improper offer of access or reward to the party donor) or whether there was private gain (to what extent did Elliot gain personally?). But it rings all the alarm bells for corruption risk of a very British kind – an out-of-view establishment backscratching which blurs the lines between business, politics and the royal family. It may not be provably corrupt, but it taints the royal family with corruption risk.
And so to the case of Prince Charles’s charities, in which it is alleged an honour was improperly granted to a Saudi businessman who was a donor to the charities, alongside several high-profile Conservative party donors. In this case, the key question is whether an honour was effectively sold. That would be an abuse. The entrusted power lies with Prince Charles, who can ensure people get honours. Was there private gain? For Prince Charles, the gain was for his charitable work. For the Saudi businessman there was the gain of the honour, but it is hardly unusual for philanthropists to be rewarded with honours – and he was not the one abusing his entrusted power. The question of wrongdoing hinges on whether it was quid pro quo: was money paid (albeit for charitable purposes) specifically with the expectation of receiving an honour? We do not yet know. But like the Ben Elliot case, it has the smack of behind the scenes cronysim, a self-serving establishment and the toxic mix of politics, money, honours and the royal family. On the evidence available, it is hard to call it corruption, but is not a good look.
The conclusion in each case is that there is a breach of integrity, and standards, but not necessarily corruption. There is also the common theme of impunity: breaking rules and breaching standards in the expectation of not being held to account. However, like the Johnson government, we must also ask at what point serial wrongdoing, cronyism and abuses of power will add up to institutional corruption, even if no individual act has been proven to be corrupt. There are already too many cases to be considered unfortunate one-
offs, and at minimum there have been serial failures of integrity. It is perilously close to fitting those definitions of institutional corruption, in which an institution’s purpose is diverted to serve those within it.
You may not think this matters. But as we can see from the volumes of press coverage, what the royal family do and say, and their reputation, still has weight. This is both within the UK and – as importantly – overseas, where the Head of State often commands greater respect than whichever government happens to be in power. By virtue of their position in the constitution, and the nation’s reputation, it is a reasonable expectation from citizens – the Queen’s subjects – that her family should be free of corruption. If nothing else, there is some self-interest at play: public and political support for the monarchy cannot be taken for granted. Yet the Queen’s children are balancing dangerously on the borderline of corruption, when they should be safely and clearly on only one side of it. It’s time to clean things up.
In the context of allegations of wrongdoing currently threatening Boris Johnson’s premiership, Rebecca Dobson Phillips looks at The Constitution Unit’s newly released survey data on What Kind of Democracy Do People Want? and reflects on some of the insights it provides for how public standards in Britain could be better managed.
British Prime Minister Boris Johnson is not unaccustomed to being called out for his apparently tenuous relationship with the truth and dangerous proximity to scandal. Now he and his acolytes are busy fending off allegations that Number 10 failed to abide by its own COVID regulations, potentially in violation of the law. This case is currently at the centre of an internal inquiry and an investigation by the Metropolitan Police. Johnson is also facing threats of a vote of no confidence from his own backbenchers; persistent calls to resign for allegedly misleading parliament about the COVID rule-breaking; and an impressive tumble in his popularity, with recent polling suggesting that 72% of the UK public holds an unfavourable opinion of him.
Whether this latest outrage ends Johnson’s premiership only time will tell, but the story so far serves to illustrate a puzzle encountered in democratic politics all too often, which is how and why leaders with unenviable reputations can (and often do) survive politically. As political scientist Michael Johnston puts it in “How do I vote the scoundrels out?”, misbehaving politicians are rarely punished at the ballot box. And alternative routes to control and sanction are also frequently dismissed because procedures with powers to interfere in the functioning of elected government are often perceived to be anti-democratic. In the UK this means we are left with a system that is largely reliant on self-regulation; with a particular quirk of the system relying on the Prime Minister to adjudicate on violations of the Ministerial Code, including ultimately for himself.
The idea that the public don’t really care about how government functions, as long as it delivers effective policy, is pervasive. One of the ringing mantras of the Conservative Party—and Johnson himself—in recent years has been that whatever the means (and the means have been highly controversial at times) the important thing is that they “get the job done”; and in the 2019 general election that message did appear to cut through. But this assumption leaves us with a problem as to how to balance democratic right with public standards and provides limited scope for regulating the integrity of the most powerful.
A new report from The Constitution Unit at UCL, however, provides some intriguing insights into what the public think about public standards and the ways in which they can and should be controlled. Some of which flies in the face of widely accepted ideas about what the public expect of their politicians, what they’re willing to tolerate, and where the buck should stop when wrongdoing is discovered.
In a snapshot of public opinion from July 2021, the survey of 6,500 people found that principles, such as “acting honestly, acting within the law, and acting transparently” were valued much more than delivering policy (a direct contradiction of the idea that delivery always trumps integrity). This insight coupled with low levels of trust in a whole range of democratic institutions suggests that, while the impact of wrongdoing might not fall squarely on the individuals involved or be expressed effectively in elections, the casualty of weak integrity could well be democracy itself.
In terms of how Ministerial misdemeanours should be dealt with (currently by the Ministerial Code and the PM) the survey findings also challenge much mainstream thinking on the balance of political and bureaucratic accountability. In a question about “failures” of government ministers, which include having “arranged for a government contract to be given to one their friends” and having “lied to parliament”, there was significantly greater support for an independent person such as a judge (instead of the PM) to decide on whether the Minister should resign. In the case of lying to parliament 33% supported an independent process of regulation over one controlled by the PM (14%). This suggests that there is public support for (and therefore greater scope for) independent scrutiny of government actions; although working out how to make an independent process truly independent would remain a practical challenge.
There are plenty more insights that can be gleaned from this fascinating research, but one of the overarching messages that emerges is the contingency with which the public hands over political power in an election; and the appetite that exists for checks and balances on decision-making along the way. The results suggest that 77% think they have too little influence on how the UK is governed; depending on the issue, there is support for using non-political experts and referendums as ways of making policy decisions; and Citizens’ Assemblies are relatively popular despite their novelty in the UK’s political landscape, with 54% supporting their use for difficult decision-making and only 15% opposed.
For students of corruption and anti-corruption, this survey should provoke some creative thinking. A functioning democracy and public standards go hand in glove. A broad perspective on anti-corruption should more readily embrace democratic innovations as solutions to standards problems. Indeed, the dispersal of power across a wider base and the greater participation of the public in decision-making are necessary complements to the more formal systems of control and sanction that are usually proposed when low levels of public standards are in the frame.
In light of the Owen Paterson case – a former Minister found guilty of breaching the lobbying rules while sitting as an MP and acting on behalf of a company paying him £100,000 pa – Professor Robert Barrington‘s twitter thread examines key aspects of the case
What should we make of the Owen Paterson case? In many ways, it seems to illustrate the crisis of standards that is currently undermining democracy in the UK.
Mr Paterson has been found guilty by two stages of the standards system (the House of Commons is still to approve or reject this). The behaviour of which he is accused – and has twice been found guilty – demonstrates the abuse of entrusted power for private gain. If true, it is corrupt: a gross, snout-in-the-trough breach of standards.
Mr Paterson has denied guilt and criticised the process. This seems to show a) at minimum a complete misunderstanding of the rules or b) a deliberate flouting in the hope not to get caught or c) a sense of impunity – the rules don’t matter and getting caught won’t be too painful. In one sense, it is remarkable that he actually managed to break the rules. They are so lax that it is only really egregious behaviour that seems to cross the line.
The deterrent is 30 days’ suspension and possibly a constituency recall vote in a constituency where Mr Paterson has a safe seat with a majority of 22,000. The incentive is a salary of £100,000 pa. Which would you choose?
Individuals can be greedy or make poor judgements. The system of standards is designed to adds checks and balances to individual behaviour. Our UK system depends on a) the Nolan Principles b) a patchwork of standards rules and bodies c) people mostly doing the right thing but resigning honourably if found not to.
The astonishing thing in the Paterson case is not therefore the rotten apple, but the response of his very high-level ‘supporters’ and failure of leadership to put a lid on his and their behaviour.
There are two ironies here: a) the Committee on Standards in Public Life (CSPL) report came out this very week, warning of decline in standards and proposing improvements to system b) the same ‘supporters’ seem to have been arguing the opposite a few days ago in the Rob Roberts case.
To these, we might add a third irony: that just as the CSPL has rejected strengthening the system too much by adding independent and unelected elements as adjudicators and investigators in case it is seen as undemocratic – Mr Paterson’s supporters are arguing in favour of taking the decision away from the elected representatives and demanding an unelected independent decision-maker. It is hard to avoid the conclusion that there is an effort to change the rules when it suits, with arguments based solely on party or tribal loyalty and not any basis of principles or standards. Perhaps that is the luxury of an 80-seat majority.
What would ‘good’ look like? Here are four suggestions: a) the PM should immediately accept the CSPL’s recommendations b) the PM and senior MPs/former Ministers should publicly deplore Mr Paterson’s behaviour – kindly but firmly due to his personal circumstances c) in this and other cases, the guilty MP should be permanently out of parliament, whether through suspension, ejection or resignation d) in future, no sitting MP should be able to act as a paid lobbyist.
Finally…what of Randox, a company which won £347 million of Covid contracts without a bidding process? An employee broke the rules of democracy on the company’s behalf. Did they know? Did they care? What did they do? Randox should also be investigated, and if the result is unsatisfactory, Randox should face debarment from public contracts. Those who employ lobbyists are part of the picture, just as much as those who lobby and those who are lobbied. There must be transparency at all stages, with proper deterrents when the rules have been broken.
If anyone needed convincing that the UK’s adherence to the Nolan Principles is a) in decline and b) in need of a strengthened system of education, enforcement and sanctions, the Owen Paterson case should clear up any doubts.
Robert Barrington, Professor of Anti-Corruption Practice at the Centre for the Study of Corruption, examines the role of lawyers in facilitating global corruption in the light of the Pandora Papers. A version of this blog was first published on law.com, following a letter discussing how ‘Britain is damaged by the provision of legal services to dictators’ in the Financial Times.
In the past two years, report after report – from international bodies like the OECD, domestic governments like the U.K. and non-profits like Transparency International – have expressed concerns about lawyers facilitating corruption as ‘professional enablers’. Their message has been reinforced – and evidenced – by the insight into the work of leading law firms granted by the Panama Papers, the Paradise Papers and, most recently, the Pandora Papers. Yet only a generation ago, lawyers were seen as champions in the fight against corruption.
However that change has come to pass, it is a problem. Society needs lawyers to be respected as impartial upholders of the rule of law. If lawyers are perceived as putting the interests of their clients, and their ability to earn fees, distinctly and regularly above the interests of justice, public and governmental trust in the system begins to break down.
This is not about the small number of lawyers and firms who deliberately break the law. They are doing wrong, and should be sanctioned. More problematic is the perception that ‘professional enabling’ is widespread among senior lawyers and their top-flight firms. It consists of exploiting loopholes, skirting the fringes of legality, and often just offering standard legal services – but all on behalf of corrupt oligarchs and kleptocrats.
The services are myriad. Sometimes, specially designed for the world’s corrupt elite: reputation laundering, setting up complex webs of shell companies to disguise identities and financial flows, litigating against journalists who may make uncomfortable allegations against their clients. Note that none of this is illegal – these are merely specialist services provided to people of dubious reputation.
Then there are standard legal services. Many of the world’s corrupt elite run large businesses based on state monopolies in their own countries, which expand into overseas M&A or listings – all of which requires legal services. If an oligarch corruptly obtained a privatised state company, but then runs it cleanly, while at the same time using his wealth to prop up a corrupt presidential crony, where precisely is the corruption or the illegality? And if there are only distant and unsubstantiated rumours, they may seem like a very reasonable client to take on.
Much of the focus on professional enablers has arisen from the world’s increased attention to money laundering. But many of those regulations do not apply to the legal profession, and there is an important question here about the legality of the funds. If a kleptocrat has so captured the state that the judiciary and laws are bent to his will, how likely is a conviction?
You can see the problem. Lawyers in major financial centres feel they can legitimately take on clients who have not been convicted in their country of origin. Yet this opens the doors for corrupt oligarchs and kleptocrats to use legal services to cleanse their reputations and put their money in safe havens.
In rare circumstances a kleptocrat is caught out – for example, by being served an Unexplained Wealth Order in the UK. A top legal team will then be at hand. Never mind the likelihood that the kleptocrat is a serial human rights abuser and the money has been misappropriated: everyone surely has a right to a legal team.
As you would expect, the lawyers who act for oligarchs and kleptocrats have a well-honed defence. In fact, three defences: access to justice; innocent until proven guilty; and equality before the law. These are important principles and we neglect them at our peril. But life is not quite that simple. These principles were designed to protect the disadvantaged and downtrodden; they are now also used to protect those who are highly corrupt.
This minefield of legal ethics, which draws its legitimacy from another age, is not fit for purpose in the globalised world. Justice for the overseas kleptocrat in the UK or US may represent a gross injustice to the victims of their corruption back home. How do we relate that to access for justice?
Some of this is not new. Murderers have always needed lawyers to defend them, who have been duly criticised. A mafia boss has always been able to hire a top firm when the cops make an arrest.
Two key things have changed. First, the scene has become much more global. Law firms, with franchises or offices in multiple jurisdictions, must weigh up their reputations and business prospects in multiple markets, not just at home. Taking the moral high ground in New York or London may lead to loss of business in Dubai or Hong Kong. Likewise their clients come from new markets – places like Azerbaijan, from where it would have been inconceivable that large funds would flow into the world’s major financial centres thirty years ago.
Secondly, we all have a much deeper understanding of the nature of kleptocracy and oligarchs and misappropriation of state assets. It is much harder to turn a blind eye and plausibly suggest that vast assets from Equatorial Guinea should be treated on a par with entrepreneurial wealth from Silicon valley.
There are two options to improve the situation. Option one is simple. Laws and regulations should be tightened and enforced, to reign in the worst behaviour, including some which is not currently not illegal.
Option two is to re-invigorate the basis on which the legal profession has been revered for generations: ethical judgement. To start this process, the legal profession needs to accept that there is a problem; but at present there is denial, and merely a tired recycling of those old defences.
However, change can come from within. Junior lawyers who have not yet been forced to make the choice between integrity and a lucrative client; anti-corruption professionals in public and private sector; lawyers in enforcement agencies and parliaments.
They are all members of their industry associations, and could stimulate a review of how the long-standing principles of justice can be used to reinforce rather than undermine the rule of law.
According to the 2018 African Union Commission Report, Africa loses USD$60 billion each year due to corruption and illicit financial flows. In this blog post, Prof. Hajer Gueldich, Professor in Law at the University of Carthage, Tunisia, examines the African Union’s approach to tackling corruption through law and policy.
The great paradox of the African continent lies in the fact that despite its natural resources, Africa is among the poorest areas in the world. Among the endogenous and systemic factors that continue to hamper Africa’s development is corruption. Corruption weakens political and judicial institutions and undermines their credibility. It affects all domains and all levels of society: from the small trader to the top of the state, including civil servants in public administrations. All this shows that corruption is a scourge against which the continent must act and react, in terms of prevention, detection, protection, and punishment.
The African Union Convention on Preventing and Combating Corruption Convention was adopted in Maputo on July 11th, 2003 by 55 countries in Africa, and entered into force on 5th August, 2006. It aims to promote coordination and harmonisation of policies and legislation on corruption. It is also designed to facilitate and regulate cooperation among State Parties to ensure the effectiveness of measures and actions to prevent, detect, punish and eradicate corruption. The Convention provides for the establishment of the African Union Advisory Board on Corruption (AUABC). This board was created on 26th May 2009 as required by Article 22 (1) of The Convention. It is the sole continental organisation mandated by the African Union to deal with corruption and related issues in Africa.
The main mandate of the Board is to promote and encourage the adoption of measures and actions by member States to prevent, detect, punish, and eradicate corruption and related offenses in Africa as well as to follow up on the application of those measures and submit regular reports to the Executive Council of the African Union on the progress made by each member State in complying with the provisions of the Convention.
Africa’s anti-corruption approach
In order to operationalise the provisions of the Convention, the AU and its institutions have devised a number of principles to improve the situation across the continent especially in the public sector. The AU approach, based on the convention, covers a wide range of areas including recruitment, code of conduct, finances, procurement and so on.
Generally, member States are required to set up, make operational and strengthen the authorities or agencies responsible for combating corruption both in the public and private sectors.
Recruitments in the public sector must be done on the basis of merit, transparency and equality. Furthermore, all public officials are required to declare their assets when they first take up their duties as well as during and at the end of their mandate.
The AU also emphasizes the need to introduce codes of conduct in relation to public offices. In practice, this could be done by the establishment of a committee or a body responsible for drawing up such a code of conduct and ensuring the application of this code. The body would also be responsible for raising awareness and training public officials on ethics within the public service. The code could go further by requiring States to publish information, in particular through generating periodic reports on the risks of corruption within the public administration.
The AU approach also focuses on good management of public finances, and transparency and efficiency in public procurement. States are enjoined to adopt legislative and other measures to make operational and strengthen internal systems of accounting, auditing and monitoring with regard in particular to public revenues, customs and tax revenues, rental expenditure and procedure, procurement, and management of public goods and services. The approach also extends to transparency in the funding of political parties. The convention prohibits the use of funds acquired through illegal and corrupt practices to finance political parties.
The convention also covers the private sector. Member States are required to adopt legislative and other measures to prevent acts of corruption and related offenses committed in the private sector and by agents of this sector. This is to discourage and prevent the widespread corporate practice of paying bribes to obtain contracts from officials. One important suggestion in this area is for the African Union to put in place a mechanism at the continental level to deal with corruption in the private sector. Currently most of the cases implicating corruption in the private sector are often brought at the International Centre for Settlement of Investment Disputes.
On a final note, close cooperation between African states would be required to make the laudable provisions of the Convention effective. This would include cooperation in investigating corruption and in the extradition of implicated individuals. Member States would especially need to strengthen the legal framework in their domestic constitutions and roles should also be created for the media and civil society in monitoring corruption.
The higher education sector in Africa is blighted by several varieties of corruption, relating to grading, access to education, and involving various forms of influence ranging from gift-giving to sextortion. In this blog post, Dr Cristiano D’Orsi, Senior Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL) at the University of Johannesburg, examines whether these practices have roots in traditional culture, and also highlights some innovative actions that are being taken around the continent.
One of the most controversial aspects of the world higher education systems is the role that ‘merit’ plays and whether (and how much) it is sacrificed to ‘corruption’. First, we have to agree whether there are African concepts of merit and corruption that are shared by the 54 sovereign African countries and applicable to higher education. The 2003 AU Convention on Preventing and Combating Corruption represents a significant step in the efforts to develop continental standards to counteract the systemic corruption across Africa. The acts listed at Article 4, at large, can be also applicable to higher education while Article 1 defines a public official. Similar definitions are also provided by the 2003 UN Convention against Corruption (UNCAC) that has been widely ratified in Africa, with the exception of Eritrea and Somalia. However, neither of these two instruments explicitly targets higher education in any of its articles.
Difficulties in defining ‘merit’
Merit is not easy to define. UNCAC mentions it just once (Article 7 on Public Sector) without any further explanation while the AU Convention remains silent on it. Hence, the applicability of the principle of merit has historically been an argumentative topic. Central to the debate – between liberals (proponents) and egalitarians (critics) of meritocracy – is the notion of ‘deservingness’ explaining that individuals should obtain only what they deserve. Against this backdrop, deservingness, or reward, is dependent on one or more among contribution, effort, and compensation; this last requiring proportionality of reward and cost. Additionally, African higher education institutions and disciplines are not neutral, emerging as structures and cultures over the years. It is easy to agree with Transparency International when it says that corruption is endemic in most universities in Africa. However, the acts representing corruption are not always accepted as such in Africa and can be justified in various capacities.
Role of Ubuntu
Ubuntu is an ancient African moral theory that has received the attentions of myriads of scholars; both African and non-African and may play an important role. Accordingly, Broodryk, defines Ubuntu as “a comprehensive, ancient worldview which pursues primary values of intense humanness, caring, sharing and compassion, and associated values, ensuring a happy and quality community life in a family spirit or atmosphere” (Broodryk, 2005: 4 ).
This definition shows that Ubuntu advocates for the common good of the public. However, the common good in question here is different from the western notion of common good, which emphasizes freedom and personal autonomy. It is a notion of common good that sees human life as communalistic and inter-connected. In this sense, no individual within the ethic of Ubuntu discriminates, disrespects or acts dishonestly while discharging public service. Instead, civil servants show respect and honesty.
Overall, Ubuntu considers human action by the level at which it affects the life of the public. Ubuntu advocates for human behaviour which bring harmonious living, and to that extent, produces happiness to the public (Shutte, 2009: 97). This by extension means that individuals are treated equally. Nepotism on the other hand, is the act of favouring a member of one’s family in the distribution of resources at the expense of others. Going by this, there is a need to examine whether it is best to practice nepotism or whether, within the Ubuntu ethical system, the best result would be produced if civil servants favour their family members in the distribution of government resources at the expense of others.
Practically, the word ‘nepotism’ has already implicated itself and therefore falls short of Ubuntu. Ubuntu demands the promotion of the happiness of everyone in the community. Where family members are preferred against others, the happiness produced will be limited compared to the pain it will produce in the community since the community is always bigger than a particular family. Application of Ubuntu in this regard will throw things open to the best qualified, so that it will be clear from all indications that there were no traces of bias. It is with this attitude that the community can begin to experience harmonious living. What this shows is that Ubuntu and nepotism cannot be proper partners. They contradict one another.
Contribution of the extended family system to nepotism
The socio-cultural structure in Africa has its origin in tribal and kinship relations. These tribal and extended family ties constitute the basic institutions, which shape the individual’s social values and norms. These values and norms encourage nepotism in African societies, encouraging individuals to fulfil their responsibilities towards their family.
Tribal systems require strong commitment from individuals towards their tribes, which allows nepotism if it concerns relatives. This observation confirms the fact that there is an existential link between the extended family system and nepotism. The fact that this practice is common in Africa goes a long way to show that the kinship bond is strong in comparison to other parts of the world. Does this mean that traditional African society promoting such practice is immoral? This may be how it appears but to draw such a conclusion would amount to imposing modern systems of moral evaluation on a society where there is no basis for such imposition.
Traditional African societies in which the language of nepotism is alien see nothing wrong with a civil servant helping his relatives, friends and in-laws when he is in a position to do so. The reason for this is clear: the peoples’ culture requires them to care for relatives in need and to be their brothers’ keepers. No traditional African would be ashamed to be caught helping a relative, a friend or an in-law. Should the person be asked to explain his preference for his relatives over others in matters of public employment the reply would be: “it is our culture, is there anything wrong in giving job to my relatives or to my in-laws?”
It is this traditional African interpretation of the extended family system that is imported wholesale into modern society without taking cognisance of the differences between both societies. Thus, those who are involved in the misconduct of nepotism, their victim (which is the common good) and those who benefit from this misconduct, may see nothing wrong with it or try to downplay its gravity because they think that it is a part of he society. Consequently, instead of coming out to oppose nepotism, what most Africans do is to wait for their turn; when their ally occupies the same position and favours them in the same proportion.
The idea that some African cultural practices and values have elements favourable for the development and spread of corruption is real. This occurs in the African customary exchanges of gifts. In African culture “there are conventions which demand or expect that a person shows appreciation for favours done to him” (Okeke, 2002:131). Gift-giving in the contemporary period is no longer for appreciation alone, but also for expectation due to the ulterior motives that some individuals now give this practice.
Sometimes gift-giving seems to be the same thing as bribery, but there is a thin line separating the two. Gift-giving and bribery are similar in some ways, as both contribute to corruption. In both cases, something is given from one person to the other to make the person take a requested action. This is to say, there is a giver and a receiver in both gift-giving and bribery, which may come in the form of cash or kind. However, one thing that is common in both bribery and gift-giving is, if disappointment comes along the line, neither party involved will have the courage to sue the other in a law court for a refund.
In African traditional society, the rulers were sometimes obliged to give gifts to the people. This was done as a sign of acknowledgement to the community for their support to the ruler. Gift-giving, originally an innocent practice in traditional African society, has become in modern times the ember stoking corruption. In order words, in this modern period, gift-giving encourages corruption, as givers do so with ulterior motives, unlike in the traditional society when people gave for gratitude.
It is unfair to use corruption as a parameter for getting what one is qualified to have. People give because they do not have an alternative, otherwise they may not get what they want. They also demand because they give, and corruption becomes a vicious circle at the expense of the society. In sum, gift-giving in the modern African society, especially in the public sector, encourages corruption because of the ulterior motives for giving in a situation of scarce resources.
“Tell the truth” Project
“Tell the Truth”, a pilot project in the universities of several African countries (South Africa included), is trying to overcome the culture of silence on issues related to bribery, abuse of resources, and sex-for-grades. All stakeholders on campus – students, professors, and administrative staff – can text a free short code through mobile phones and then be called back by an operator who gathers details of the problem.
Subsequently, university administration and student representatives discuss the information periodically, and both sides agree on the way forward. On certain issues, whistleblowers have their identities protected to avoid retaliation. Universities’ political and corporate liaisons may create conflicts of interest and undermine their autonomy, academic freedom, and impartiality. In this framework, several African countries have acted more effectively than other countries, because they have a clearer vision of the phenomenon and make more efforts to curb it.
Domestic and regional efforts to thwart corruption
Rwanda adopted an anti-corruption policy in June 2012 and, previously, the Law no 23/2003 Related to the Punishment of Corruption and Related Offences. The Prevention and Combatting of Corrupt Activities Act is the key statute on corruption in South Africa. It provides for the general offence of corruption as well as specific offences. It also provides for investigative measures, as well as preventative measures in the fight against corruption. In Southern Africa, there is also the 2001 SADC Protocol against Corruption providing for the prevention, detection, and punishment of corruption as well as for cooperation between states. It covers corruption in both the public and private sectors. The Protocol recognises that demonstrable political will and leadership are essential in the fight against corruption. It affirms the need to garner public support for initiatives to combat corruption. Therefore, we should reflect on the efficacy of the corresponding legal instruments in fighting academic corruption in higher education in Africa, whether and in what measure they are implemented by the African stakeholders, not only individual countries but also sub-regional and regional organisations. For example, the AU regularly organises “anti-corruption dialogues” that, among their goals, discuss how enhance transparency and fight corruption through efficient judicial systems.
Amid efforts to reduce corruption in higher education in Africa, anti-corruption experts are urging improvements in the governance and leadership of public universities. According to a former coordinator of the World Bank’s tertiary education programme, African governments should establish a regulatory framework for tertiary education systems, with adequate provisions to punish corrupt behaviour at all levels. He suggests that university senates, independent financial review boards and national university accreditation boards should provide leadership in fighting corruption.
In order to operate in a more transparent manner, African universities are encouraged to ensure that funds generated through corruption are not donated or invested in higher education. There have been cases in several countries (Libya and Equatorial Guinea) where money embezzled from public institutions had been channelled to universities.
Taking into account that corruption is endemic in most universities in Africa, experts urge a crackdown on academic fraud that ranges from soft marking, copying from other students and cheating during examinations to impersonation. Universities should also monitor and punish cases of falsifying academic records, paying for grades with gifts, money and sexual favours, terrorising examiners and assaulting invigilators. Taken together, those outcomes undermine educational opportunities for students and produce graduates who are less equipped to thrive in future careers.
Rights over land are one of the most fundamental property rights, but remain severely contested in many parts of Africa. In this post, Robert Home, Emeritus Professor in Land Management, Anglia Ruskin University, UK, details the impact of colonial legacies and how they affect patterns of corruption today.
The roots of corruption in land matters lie in Africa’s geography and history. It is a continent with a large land mass and low population density. In the last fifty years, its population has grown five times to reach over a billion people with about a thousand distinct languages (some countries have over twenty ethnic groups). It has the most nations in relation to land area of any continent, with colonial boundaries, legal systems, and governance following the Uti possedetis principle (i.e., what you have, you keep).
The former British colonies have a colonial legacy of three land tenure types created by the so-called ‘dual mandate’. State land (or crown land claimed as terra nullius)could be ‘set aside’ for such public purposes as townships, forestry, national parks, and mineral extraction. Private property (under freehold or long leasehold) had a government guarantee of title under the so-called Torrens system, controlled by lands and survey departments. Finally, under customary/tribal land tenure land belonged not to individuals but to the community, family or lineage; this still covers the majority of the African land area, and in colonial days were formerly held ‘in trust’, with no private ownership. Continuing colonial practices in land matters is why the postcolonial state has sometimes been called an ‘enemy of the people’ for encouraging inequalities.
Current land issues in Africa include ‘land grabbing’ and mineral extraction by foreign investors, conflicts, evictions and displacement, fraudulent title transfer, and the potential of blockchain for property transactions (which may increase evictions of occupiers). Land has been the subject of several books. In Ati Onama’s The Politics of Property Rights Institutions in Africa (2010), he argues that the level of property rights security that leaders prefer depends on how they use land, revealing why some leaders prefer an environment of insecure rights even as land prices increase. Laura Routley’s Negotiating Corruption: Hybridity NGOs and the Nigerian State (2015) argues that NGOs act as intermediaries between the local and the international, and between the state and the population.
The African Union Commission, UNECA, and the African Development Bank sponsor the African Land Policy Centre, following the African Declaration on Land (2009), which recognises member-state sovereignty and equality, and its third African Land Policy Conference in Abidjan (2019) was on the theme of “Winning the fight against corruption in the land sector”. Its land policy guidelines are, however, not a normative framework nor do they seek to impose land policy in specific country situations.
The jurisprudence of the African Court/Commission of Human and Political Rights is limited in land matters (Article 14) and suffers from poor enforcement. The Mbiankeu case (Cameroon) supports the right to private property and government title guarantee. Cases defending the rights of indigenous people in Kenya (particularly the Endorois, Ogiek, Nubian community) have succeeded, but governments are reluctant to act on the judgments, accusing the indigenous groups of being ‘selfish’ minorities.
Three country case studies (of Africa’s most important economies) show many corrupt practices. Nigeria (one of the most corrupt nations in the world, according to Transparency International) has inherited colonial governance structures, conferring federal control of mineral rights, and state control of land use rights, with anti-corruption laws in place but no consequences for violations. Kenya has two separate land registers carried over from colonial days: central (for private property) and county (for former trust lands). Abuses include land titles being transferred centrally without knowledge of occupiers, boundary adjustments that enlarge plots without knowledge of neighbours, local authority land transferred without knowledge of local authority, leases re-allocated upon expiry without notifying the existing lessee. The Ndungu Report (2003) identified multiple wrongful land allocations, and it has been estimated that 15% of land is controlled by the families of the four past Presidents. Finally, South Africa has unresolved racial inequalities in land ownership, limited success of land restitution and land reform, and ineffective constitutional guarantees and governance reforms. Abuses there include fraudulent land-grabbing and sales, and evictions.
The UN Sustainable Development Goal 16 is to “promote peaceful and inclusive societies for sustained development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”. It has 12 targets and 23 indicators, which include promotion of the rule of law and access to justice, a substantial reduction in corruption and bribery, inclusive and representative decision-making, and public access to information. Such aspirational goals are far from being realised in Africa.
Other key texts which deal with the issue of corruption in Africa’s land sector include:
Corruption and organised crime often go hand-in-hand. Professor Michèle Olivier, Associate Professor and Chair of Law at Dar Al-Hekma University, describes the nexus between these two phenomena in developing countries through the lens of human trafficking and the illicit wildlife trade, highlighting serious challenges for proponents of anti-corruption.
Transnational crimes are normally committed by transnational organized crime groups. The United Nations Convention against Transnational Organized Crime defines an ‘organised criminal group’ (OCG) as “a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences… in order to obtain, directly or indirectly, a financial or other material benefit”. These groups are in essence businesses like any other, motivated by financial gain and seeking out opportunities with high profits and low risks/costs.
Effective financial management and navigating regulatory/legal frameworks are critical to any business. OCGs and legal business operations share a dependence on financial institutions, quality of governance and the rule of law, or lack thereof. The cost is ultimately paid by the most vulnerable members of the global community, predominantly those in the developing world.
As transnational organised crime networks operate across national borders, understanding of the broader impact of international networks that support these crimes is needed. OCGs make use of legitimate structures and financial institutions to wash the proceeds of their crimes. In developing states, these crimes and corruption are co-dependant, thereby contaminating the entire economy. Transnational crimes typically cannot exist without corruption.
Corruption and good governance
Transnational crimes are enabled by weak governance which allows corruption to flourish. Corruption broadly refers to dishonest behaviour by those in positions of power. It includes the giving or accepting of bribes or inappropriate gifts, double-dealing, under-the-table transactions, manipulating elections, diverting funds, laundering money and defrauding investors.
Weak systems of government are not uncommon in developing states.Weak institutions create an environment for corruption to flourish, leading to poor enforcement, lack of transparency and accountability, and compromised adherence to the rule of law, thus reducing OCGs’ risks and increasing their profits. On the other hand, development – particularly improvements to governance, rule of law, delivery of social services and employment – undermines the strength of OCGs.
Capacity and efficiency in public sector management, accountability, access to information, and transparency are essential to good governance, and help to control corruption.
People trafficking and illegal wildlife trade as examples of transnational crimes
Trafficking in persons is a growing transnational crime with millions of victims, who end up in various modern forms of slavery, forced labour and forced marriages.
Illegal migrants are susceptible to exploitation and violations of their human rights. Often trapped in a cycle of debt that is almost impossible to escape from, their labour goes towards paying off the initial debt associated with the trafficking. Victims are generally unable to afford basic expenses like food, water, shelter, and health care provided by their “employers” or the traffickers, resulting in a continually growing debt. Human trafficking has serious security and economic impacts on individuals, communities and countries. It drains resources and undermines domestic stability and the rule of law.
The surging illegal trade in wildlife trade is fuelled by corruption, weak legislation and enforcement. It includes elephant tusks and rhino horns, exotic pets, food and traditional medicines. Per kilo, the retail revenues for ivory or rhino horn can be equal to or greater than the equivalent amount of cocaine or heroin, yet the legal penalties are considerably more lenient. This trade not only has a disastrous impact on species conservation but also deprives communities of natural resources and much-needed revenue streams.
Illegal wildlife trade often flows through the same corridors used for other types of trafficking, like drugs, arms, and human beings. For a fee, wildlife traffickers can use an established route, which lowers their risk of detection and seizure.
Laundering the proceeds of these crimes is the global shadow financial system. A vast network of banks, intermediaries and secrecy jurisdictions around the world move illicit money, including the proceeds of tax evasion, revenue from organized crime and resources of terrorist organisations. The revenues from transnational crime seldom have any long-term benefit to citizens, communities or economies of developing countries.