Stepping Up Prosecution of Transnational Bribery Cases

While progress is occurring in prosecuting transnational bribery cases, unfortunately the rate of progress is slower than we would like. There are a variety of reasons for this.

First, in some countries there is a lack of political will to pursue transnational bribery cases. There maybe a lack of consensus within a country or parts of the power structure which oppose vigorous application of the anti bribery laws. Second, there may be a lack of legal tools, such as proper legislation and a legal procedural framework. Without laws to apply and a justice system with proper procedures, effective enforcement is almost impossible.

Third, there may be a lack of material resources, such as trained personnel and operating funds.

Fourth, since transnational bribery cases often cross jurisdictional lines by definition, countries pursuing such cases will need to avail themselves of mutual legal assistance from other jurisdictions, particularly with regard to compiling financial evidence and tracing stolen assets. Prosecutors face hurdles when seeking mutual legal assistance, such as delay and a lack of proper legal mechanisms.

Fifth, we must recognize that gathering evidence of bribery is challenging because witnesses may be fearful of retaliatory actions or even threats to their safety. If a jurisdiction is not equipped with safeguards and incentives for cooperating witnesses, such as whistleblower protection systems, the ability to mount successful prosecutions will suffer.

Finally, we see from the statistics that only a handful of countries have had success, many more have investigations in progress. Another reason we have not yet seen progress is that the length of time it takes to bring a prosecution to fruition is considerable, especially in light of immunity laws that may protect wrongdoers still in office. Despite these various obstacles, it is encouraging that we are seeing this much progress. The legal landscape is light years ahead of where it was ten years ago.

The development community provides money, expertise and advice to advance specific development goals. Donors, clients and beneficiaries can expect that funds and expertise are only used for the intended purposes. Any national enforcement action should be focused on this goal. While the first steps to ensure the appropriate use of funds are state-of-the-art preventative measures, enforcement action may be necessary to recover stolen funds and to serve as a deterrent against similar activity in the future. For us an additional benefit of national enforcement action is to understand how schemes that divert our funds work so that we can take steps to prevent similar schemes from being successful in the future.

Accordingly we would expect individuals who have stolen funds or have taken or paid bribes to be prosecuted and punished within their national enforcement framework. Stolen funds should be returned to the projects for which they were intended or to the donors that provided them. In a wider context enforcement action can also be of a civil, administrative or disciplinary nature. Project officials who have been identified as corrupt should be dismissed to prevent further corrupt activities. Companies that colluded and thereby profited from excessive prices can be sued for damages in some jurisdictions as well.

Determining how to use scarce ivestigative and prosecutorial resources is a challenge. With corruption cases, it may be useful to consider investing in the most promising cases, meaning those with the best evidence in terms of documentation of acceptance of bribes and witness statements recounting exactly how the bribery scheme worked. Of course, it is not easy. What may be the most difficult is obtaining a credible initial report. In many communities, knowledge of the wrongdoing and the wrongdoers is widespread, but fear of getting involved and lack of belief that anything will be done as a result of the report keep people from telling the authorities. Establishing a system to protect whistleblowers and raising public awareness of that system may be useful. In general, media reports are also a fruitful source of initial tips. The greatest challenge is getting from the stage of rumors that a person is corrupt to actual facts and evidence that permit prosecutors to prove it.

More enforcement capacity would, of course, improve matters. The situation is particularly dire in developing countries, where priorities are providing for basic human needs and infrastrature. In developed countries, prosecutorial resources are considerable. With increasing extraterritorial enforcement by developed countries, we may see benefits flowing to the less developed nations as well.

As for the reluctance of certain countries to punish corrupt officials, the power structure within a country may protect corrupt actors. The line of corruption may extend high into the power structure, thus giving higher-ups an incentive to protect lower-down corrupt go-betweens. Once again, strong political will and a consensus to fight corruption will be essential to progress.

Bert, thank you for your interesting question. Surprisingly, any kind of publicity in this area is helpful. Without getting to specific cases, my experience is that public outrage over a negative decision strengthens those who are pushing for accountability on the next case because it reinforces the public view on what is wrong and what is right. It also discourages those who try to prevent accountability from occurring because they don’t want to be at the receiving end of a similar public blow-back. Similarly a positive decision reinforces accountability and encourages those who are attempting to do the right thing in other cases.

In a climate of economic crisis where people desperately need the help from public resources, it makes sense that concern about resources lost to corruption is rising. There is no doubt that addressing corruption increases the flow of resources to the intended beneficiaries. It is true at all levels, from higher quantities of resources through better quality of goods and services.

Cross-debarment means that a company or an individual that is debarred by one Multi-lateral Development Bank (MDB) is automatically debarred by other MDBs as well. This helps protect the MDBs from entities that move their schemes to the next MDB after their activities have been detected and stopped by another MDB. The agreement has been enforced now several times already and you can see the results on the MDBs’ public lists of debarred entities.

While the notion of a global enforcement system is a topic of lively debate, we can all hope for a consensus that bribery is wrong and should be punished. The more countries that commit to doing something about bribery, the better the opportunities for enforcement across the globe. In general, transparency and accountability will provide a strong framework on which to build enforcement.