A "Paradigm Shift" in Mexican Anticorruption Law?

Problems of corruption and graft are not new in Mexico.Recently,the Mexican elite political class has been implicated in a series of real estate scandals that reached all the way to President Peña Nieto.最值得注意的是,President Nieto and his wife have been accused of impropriety in theirpurchaseof a 7 million dollar mansion—dubbed by the press "la Casa Blanca" ("the White House")—from a wealthy government contractor.While not directly related,Nieto's presidency has also been rocked by protests surrounding the disappearance and presumed death of 43 students inGuerrero.Local officials appear to have been involved in the disappearances,and the official investigation is widely viewed to have been botched.

But in the midst of all this (and arguably because it),Mexico managed to pass one of the most sweeping anticorruption reforms in recent memory.In April and May of last year,the Mexican legislature passed and the state legislatures approved reforms to 14 articles of the Mexican Constitution.Conceived of and spurred on by Mexican civil society groups,these reforms bolstered existing anticorruption institutions and created whole new ones.

The reaction to these reforms has ranged fromexcitement and enthusiasm,tocautious optimism,tocynical dismissal.(President Nieto,for his part,has hailed them as a "paradigm shift" in the Mexican fight against corruption.) These changes to Mexico's constitution are only the first step in the country's much needed systemic reform.Their success will depend substantially on secondary enabling laws to be enacted sometime before June 2016.But it's worth stopping now to analyze what these reforms get right,and what they fail to address.

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Guest Post: A New Additional Indicator for Measuring Progress Toward SDG 16

GAB is delighted to welcome backDieter Zinnbauer,Programme Manager at Transparency International,who contributes the following guest post:

A very interesting discussion has evolved on this blog (seehere,here,here,andhere),and in the wider world (for example,seehere),on 188bet appabout the indicators that should be used to measure progress toward theSustainable Development Goals(SDGs) goals for improving governance and reducing corruption (Goal 16).There are already some very good suggestions on the table,including the use of Transparency International'sGlobal Corruption Barometer(GCB) to measure progress toward Target 16.5,on reducing corruption and bribery in all their forms.(TI has used the GCB since 2005 to compile one of the largest data troves on the detailed experience with corruption of households and individualsaround the world.Using a GCB-type indicator for the bribery dimension of SDG 16.5 is supported by a wide variety of stakeholders,including the World Bank,UNDP,and Save the Children.)

Yet most of the indicators proposed so far,including the GCB,speak to very specific aspects of corruption (such as bribery) and don't quite do justice to Goal 16's broad ambitions and its emphasis on public accountability.So to spice up this stew a bit,let me suggest another possible indicator,one that complement to some of the ideas that are already on the table.My proposed indicator of progress toward SDG 16 is as follows:

What percentage of national-level parliamentarians (and perhaps top level members of the executive) have made assets,income,and interest disclosures (AIIDs) in a format that is publicly accessible online at sufficient level of detail,in timely manner,and in a machine-readable data format.

Using AIID as an additional SDG 16 indicator might at first seem to be a step backwards,since such an indicator measures "outputs" rather than "outcomes." But let me try to convince you that in fact AIID would be an extremely useful complementary indicator for progress toward SDG 16:Continue reading

Will Honduras' MACCIH Become Another CICIG?

After a several month negotiation with the Organization of American States,the ruling party,the opposition,and civil society,the Government of Hondurasagreedto form a new anticorruption body that offers the Central American nation the hope that the endemic corruption blamed for making it one of the poorest,most unequal,and most violent societies in the Western Hemisphere can be brought to heel.  On January 19,Honduran President Juan Orlando Hernández signed aninternational accordwith the OAS establishing the Mission to Support the Fight against Corruption and Impunity in Honduras (known as MACCIH,its initials in Spanish).  MACCIH was inspired by the success of a similar body in neighboring Guatemala,the International Commission Against Impunity (known too by its Spanish initials,CICIG),which,as readers of this blog (here,here,andhere) or of a June 2015 Washington Office on Latin Americareportknow,has madesignificant inroadsin taming corruption in that country.

Like CICIG,MACCIH is a hybrid international-domestic 188bet appagency.  Its staff will be international civil servants paid for,and accountable to,the OAS and immune from Honduran law,yet MACCIH's staff is tasked with the same mission as Honduran law enforcement agencies,to ferret out corruption in the Honduran body politic.  As with CICIG,in creating MACCIH the hope is to establish an independent,incorruptible body of investigators,prosecutors,and judges able to pursue cases where,thanks to corruption,incompetence,or intimidation,their Honduran counterparts have not.  But important differences between the powers granted MACCIH and those CICIG enjoys make observers wonder whether,as Washington College Professor Christine Wade recentlywrote,  MACCIH isn't a "ruse designed to appease domestic and international critics" of the government.

For MACCIH to be something more than a way to buy time until the furor over the recent corruption scandals that spawned it fades from view,it must overcome three challenges.Continue reading

More Phony Numbers–This Time on the Anticorruption Impact of Open Data

OK,I know I'm beating a dead horse.Within the last month I've already posted several times (seehere,here,andhere) 188bet appabout bogus anticorruption statistics,as hasRick.And I promise that after this post,I'll move on to other topics.But I can't help commenting on thislatest releasefrom Transparency International,criticizing the recent World Economic Forum (WEF) meeting for not explicitly addressing corruption.As its lead example,TI faults the WEF for not addressing issues like open data (and openness more generally).I'm sympathetic to TI's policy position,but in making the case,TI asserts,"One study suggests that open data could reduce the costs of corruption by 188bet appabout 10 percent."

I was curious (and,admittedly,skeptical) 188bet appabout yet another seemingly precise estimate of something that's inherently hard to measure.So I clicked on the link to the "one study" that "suggests" that open data technologies would reduce the costs of corruption by 10%.This "study" is actually a report (really,an advocacy document) from an Australian consulting firm (Lateral Economics),commissioned by a philanthropic fund (theOmidyar Network) that invests inopen data initiatives.How does this "study" reach its conclusion that open data could reduce the costs of corruption by 10%?I will now quote in full the entirety of the evidence and analysis supporting that conclusion:Continue reading

What Does China's Anticorruption Campaign Mean for Africa?

In advance of Chinese President Xi Jinping's attendance at a China-Africasummitin Johannesburg last December,aflurryofnews articlesin African outlets—especially in Zimbabwe—optimistically highlighted the role China could play in helping African countries curb corruption.Aspreviously discussedon the blog,in the first three years of his tenure,President Xi has made a crusade against corruption an importantrhetorical partof his presidency,and backed up those words with actions (thoughsomehavequestionedhis techniques).It's equally well-established that China has becomevery involvedwith Africa.  China increasingly depends on Africa's mineral resources to feed China's growing industries,and Chinese businesses see Africa as a potentially lucrative export market.Many African countries seeks partners,like China,that are willing to invest in infrastructure and business development.Though there has beenrecent pushback中国的行动,and even adeclinein Chinese investment in Africa,President Xi's$60 billion pledgeat the summit indicates China will continue to be an important player in the region for the foreseeable future.

Many commentators hope that the combination of these two factors—China's anticorruption campaign and its substantial economic engagement with Africa—will give a boost to anticorruption efforts in Africa.Alas,those hopes are overstated.

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Is Corruption an Emerging Cause of Action in Investor-State Arbitration?

TheTrans-Pacific Partnership Agreement(TPP) has attracted unprecedented public interest in investor-state arbitration—also known as investment treaty arbitration,investor-state dispute settlement,or ISDS.Sovereign nations and foreign investors may choose this process as an alternative to ordinary litigation in domestic courts,by submitting their claims before a panel of expert judges applying international law.Though some criticsseem to suggestthat ISDS imposes a static list of economic rules,arbitration actually applies a complex system of legal principles which balance investor security against the sovereign autonomy of host states.Over time,investor-state arbitration has proven to be an emerging space for enforcing international norms—including transparency and anticorruption.Indeed,the TPP demonstrates this growing influence of anticorruption norms in ISDS.Not only is the TPP the first multilateral trade agreement to explicitlyrequire anticorruption commitments from its members,its ISDS chapter will also commit members to the anticorruption rules emerging in investor-state arbitration.

Since long before the earliest discussions of the TPP,arbitral panels have sometimes used anticorruption norms to interpret treaties and contracts that made no mention of anticorruption or transparency.Indeed,although no previous trade or investment treaty has obligated host states or investors to observe anticorruption standards,ISDS panels have increasingly considered corruption relevant,and even dispositive,in determining liability.This process has enabled the development of what is effectively a common law of anticorruption principles.(Although there is no doctrine ofstare decisisin investor-state arbitration,arbitral decisions provide persuasive authority in future disputes,and particular decisions may gain influence and recognition comparable to precedent.An arbitral panel has discretion to consider other public international law authorities,including previous investor-state disputes,international commercial arbitration between two private companies,public international courts,and ad hoc bodies such as the Iran-US Claims Tribunal.All of these systems have helped contribute to the emerging anticorruption norms in ISDS.)

Arbitral panels considering corruption have most often treated it as a "shield"—that is,as a defense against liability.But while recent panels and commentators have questioned the merits of a "corruption defense," recent cases hint at the emergence of a freestanding cause of action for corruption—as a sword rather than a shield.This potential shift suggests that,in addition to the the TPP'sexpress transparency and anticorruption terms,theISDS chaptermay offer hidden tools for anticorruption enforcement.

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Guest Post: Time to Go Beyond Anti-Corruption Agencies in Sub-Saharan Africa

Njoya Tikum,United Nations Development Programme Regional Anti-Corruption Advisor for Africa and Yale University World Fellow,contributes the following guest post:

To achieve the aspiration for an inclusive and sustainable human development in Africa,as articulated in theAfrica Union's (AU) Agenda 2063and reiterated in theCommon Africa position on post 2015,African countries must reconsider their approach to the fight against corruption.In the last 15 years,the international community of anticorruption practitioners and advocates have induced African countries to establish anticorruption laws and bodies.With few exceptions,almost every African country—sometimes of their own volition and at times under immense pressure from international financial institutions—has embarked on wide-ranging reforms aimed at strengthening state accountability and eradicating corruption.However,these interventions have not resulted in any noticeable decline in corruption in most parts of Africa.Indeed,multiple indexes such as Transparency International'sCorruption Perception Index(CPI),theMo Ibrahim Foundation's Governance in Africa Report,and theAfrobarometer,indicate that corruption has been on the steady rise in Africa.The critical question,then,is why the legion of interventions aimed at combating corruption have not yielded positive outcomes.

With monumental trust deficit between the state and citizens in Africa,relying on Anti-Corruption Agencies (ACAs) to fight corruption can only yield limited results.For many countries,the establishment of an ACA was just another box to tick in order to get the next round of development assistance;the agencies themselves are mere window dressing,often suffering from institutional weaknesses and a lack of sufficient human and material resources.In several African countries,for example,ACA funding is tied to presidential benevolence instead of allocation through a transparent national budgetary processes.They are staffed by people with no technical expertise,sometimes including retired public servants who have no real zeal to rock the boat.In these countries,the modus operandi is to fight corruption in areas earmarked by the ruling political regime.In some countries,leaders have used the ACAs to further witch-hunts against political opponents.

How does Africa navigate itself out of this quagmire?To win the battle against corruption,Africa must move beyond offices and notepads to pragmatism and action,exploring new and innovative solutions:

  • To begin with,anticorruption strategies must be comprehensive,and must include governance innovations such as open data,transparency and accountability in business,procurement,construction,etc.As part of this comprehensive approach,resources from the national budget must directly be allocated for anticorruption capacity building as part of national development plans (NDPs).As with other parts of NDPs,annual and biannual benchmarks and targets must be established to track the progress of anticorruption initiatives.
  • In addition,African governments can and should make use of new information and communication technologies (ICTs) and citizen social accountability tools.For instance,a number of web based applications have been developed to report instances of corruption in real time,providing an opportunity for cheap,affordable solutions to citizens and quick responses/actions by anti-corruption agencies and integrity institutions.See,for example,theHuduma,Ushahidiin Kenya andFrontline SMS campaignsondrug stock outsin the region.
  • Civil society organisations (CSOs) must play an increased role as the true watchdogs of the people.Given these responsibilities,and the need for CSOs to be autonomous and sensitive to local needs,it is unfortunate that almost 90% of anticorruption CSOs in Sub-Saharan Africaare funded by international donor agencies.The funding strategy must be adjusted,with national governments and other non-state actors taking up more responsibility for supporting anticorruption CSO activities.
  • Speaking of the international community,development partners must switch from playing a hypocritical role where they condemn corruption in the public sector in Africa but do little to stop corruption by private sector groups from their countries.They must embrace a new form of partnership where the private sector,including banks and transnational companies,are held to the same standards as public institutions.