Stepping Up Prosecution of Transnational Bribery Cases
The OECD Antibribery Convention requires parties to make promising, offering, or giving a bribe to an official of another government a crime. Although 38 countries have ratified the convention, Transparency International reports that as of the end of 2009 only seven are actively enforcing this provision. Another nine are making some effort to enforce it and have taken few if any steps to enforce the convention.
When it comes to the prosecution of officials who accepted bribes from transnational companies, there has been less activity. More effort should be invested in stepping up prosecution of bribe-payers and bribe recipients, so what is the nature of the challenge (s) that is holding back this effort? What are your views on 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.
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.
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.