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Wednesday News Wall 27 April 2016

CORRUPTION

THE Kenya government transferred a breathtaking 7,000 procurement and purchasing officials in an attempt to disrupt corruption in state procurement contracts. This is 3 months after the new Public Procurement Act came into effect. The new act puts more power into the hands of procurement professionals rather than the now-defunct procurement boards.

ON Monday I discussed former Virginia Governor Bob McDonnell who threw his wife under a bus during his corruption trial. I might be forced to eat my words since it’s looking increasingly likely that the US Supreme Court will overturn his conviction. Nothing is certain, but the signs, based on the judges’ expressed views, are not good.

The basic issue is similar to that which troubled an Appeals Court when it overturned some of former Illinois Governor Rod Blagojevic’s convictions about a year ago. Both courts seem worried that behaviour that is deemed acceptable in politics is increasingly being prosecuted as bribery. In Blagojevic’s case it was ‘log-rolling’: the horse-trading of offering a Senate seat in return for a seat in Obama’s cabinet. In McDonnell’s case, it is questions of payments for social functions, gifts etc. made by a constituent to his elected official. That official then vigorously advocated for policies that benefited the donor.

In technical terms the problem is whether US bribery law prohibits benefits or advantages to public officials as a wrong in themselves (provided there is an intent to influence the office holder) or must the gift/favour be an inducement or reward in exchange for improper conduct before it is criminalised. This is especially problematic in a political system where large political donations to candidates are a big part of the culture. How far can a politician go in advocating for someone who has given him/her a lot of financial and other support before it becomes a corrupt relationship?

Kenyan law is no less vague on what constitutes bribery, though it recognises that the purpose of the benefit given/received must be to induce or reward someone for engaging in conduct or showing some favour/disfavour ‘in relation to the business or affairs of [the receipent’s] principal’. The problem with Kenyan law is that the Anti-Corruption and Economic Crimes Act uses terms such as ‘corruptly giving’ or ‘corruptly receiving’ but makes little effort to define ‘corruptly’ (the US federal statute on bribery has a similar problem). This is not a problem in clear-cut cases such as a cop palming Ksh.1,000 from a motorist arrested for speeding in order to overlook the offence. Or a judge receiving millions from a respondent as an inducement to decide an election petition in his favour. In both cases the ‘corrupt’ element is pretty clear: inducing a public official to engage in improper conduct that is contrary to the rules and procedures of that public office. The cop is not allowed to decide who to arrest based on how lucrative it is to him, nor is the judge allowed to decide the case based on which party will make her richer.

But the definition is not so helpful in the grey areas where political campaign funds and campaign services are exchanged for political favours or political protection. After all, X, a businesswoman, may give politician Y political funding and backing. But is it realistic to imagine that X expects that Y will, upon taking office, be totally impartial and treat X in exactly the same way as all other businesspeople? Imagining that X should only give Y money or backing because she likes his manifesto and political principles and for no other reason would misrepresent human nature which views the exchange of favours as part and parcel of living in a society.

We would, however rightly condemn both X and Y if, as a result of the X’s funding, Y (now in office) broke or bent the rules or pressured another public official to do so in X’s favour. So there must be a dividing line between a corrupt benefit/advantage and one that while perhaps distasteful is part of political sausage-making.

A US expert argues that rather than looking at the intent to influence in federal bribery, one should focus on the ‘illegal contract’ i.e. that the benefit/advantage given to the office holder was in exchange for that office holder doing or not doing an official act.

CRIMINAL LAW

THE police and religious leaders in Mombasa will now meet on a monthly basis to discuss security matters.

THE Cape Verde authorities suspect a rogue soldier was responsible for gunning down 11 people- including fellow soldiers.

UPDATE 28/04/2016: the Cape Verde authorities have captured the main suspect in the killing.

ARE MPs attempting to shield themselves from law suits with a constitutional amendment bill?

ON matters of cybercrime, apparently traffic to Wikipedia pages about terrorism plunged after Edward Snowden revealed the words that the NSA and other US agencies monitor online.

AFTER the Bangladesh Bank hack, some wonder whether to turn to the bitcoin blockchain distributed ledger in view of the SWIFT system’s vulnerability.

THE UK government could also be looking to the blockchain to help track taxpayers’ money.

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A US burglar is suing a homeowner for recklessly shooting him. I wonder what people expect to happen when they break into other people’s houses and surprise the owner inside? A careful, balanced and well-judged response? Chances are that the owner may get a bit ‘reckless’ in seeking to eject you from his/her property pronto.

MONEY LAUNDERING

A former golfer from Wales who got rich selling counterfeit cigarettes out of a fleet of ice cream vans has his house seized by the state.

The International Bank of Costa Rica is under scrutiny for weak anti-money laundering controls.

An official from China’s official anti-money laundering body warns that the country is at higher risk of money laundering and terrorist financing. But I seem to recall that China classifies as ‘terrorist’ everyone from Uighur separatists to the Dalai Lama, so I’m taking the ‘terrorism’ bit with a pinch of salt.


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