HSE University Anti-Corruption Portal
Enhance Transparency, Reinstate Death Penalty: Cures for Corruption in the Time of Coronavirus

In the context of the coronavirus pandemic, here are the responses of some countries to potential corruption risks it might incur.

The outbreak of the coronavirus pandemic potentially entails multiple risks of corruption. The concentration of resources in the hands of a small number of persons increases the risks of solicitation and bribery, as well as violations in public procurement (first of all, in the area of purchases of medications and medical equipment, research activities, construction of hospitals and facilities for medical treatment); access to confidential information in the context of mass panic and economic decline facilitates the abuse of functions; the imposition of quarantine causes the postponement of trials; the limited interactions among countries slow down the pace of international cooperation also on the cases of transnational corruption and hinder joint international investigations.

Giving due consideration to the potential negative consequences, some countries are already working on the measures to counter corruption in pandemic conditions.

For instance, the National Prosecuting Authority of South Africa decided to form special anti-corruption units. The details are yet to be firmed up, however at this stage the government announced that the units would work with the judiciary to expedite the prosecution and sentencing of people found to be involved in corruption for profiteering from the coronavirus crisis.

Among such offences there are in the first place the embezzlement and misuse of bailout funds, which will be punished with the penalty to repay the loot plus 10 percent. The government is also planning to penalize the companies that would be caught to misuse the funding for workers’ wages aimed at assisting them to survive the crisis. In addition, they will prosecute the businesses that unjustifiably increase prices: there are already 11 firms in South Africa selling face masks, hand sanitizers and other similar products that are being probed for the offence. The companies are running the risk of being imposed a penalty ranging from
R1 million to 10 percent of their turnover, meanwhile natural persons may be sentences to up to one year of imprisonment.

In the meantime the Indonesian authorities are proposing to reinstate death penalty for corruption crimes. This was announced by Firli Bahuri, head of Indonesia's Corruption Eradication Commission which is the main national anti-corruption body. The possibility to issue the maximum penalty is provided for by Law No. 31 of 1999 entitled “Eradication of the Criminal Act of Corruption” under “certain circumstances” (article 2, part 2). Although Indonesian authorities have so far never executed anyone, Firli Bahuri and Yasinna Laoly, Law and Human Rights Minister, warned that “corruption during disasters is punishable by death”.

In Nigeria, representatives of civil society demand that the government prioritize transparency in the spending of funds to combat the coronavirus: they sent an open letter to the President of the country, asking him to instruct the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and Other Related Offences Commission (ICPC) to monitor the spending of funds meant for addressing the coronavirus pandemic and ensure that those found to have mismanaged or stolen the money are effectively prosecuted and punished.

Public procurement constitutes a priority area for ensuring transparency, particularly in the current situation. For instance, Latin American chapters of Transparency International issued recommendations on how to mitigate corruption risks in public procurement. The first one states: maximum openness of information at all stages, from planning to delivery.

However, some of the measures adopted by governments may considerably hamper transparency of public procurement in the coronavirus outbreak.

Transparency International has already expressed its concern about Brazil's Temporary Measure No. 928 (Medida Provisória nº928 de 2020) intended to suspend feedback to requests for access to information from:

1) the public bodies the employees of which are in quarantine or work remotely, while the processing of requests require their presence for providing necessary information;

2) the public bodies that are directly involved in addressing the crisis caused by the coronavirus.

According to TI, the second item of the restrictions raises questions. On one hand, the introduction of such a measure is understandable from the perspective of the necessity to focus the available human resources on the fight against the virus. On the other hand, the restriction on the access to information about the activities of the entities that dispose of public funds in pandemic conditions may set the ground for abuses and embezzlement. This is particularly important as the document does not clarify which organizations are considered to be “engaged in the crisis management” while all public bodies in the country may presumably fall into this category.

Equally, certain measures adopted by Russia pose a threat to transparency of public procurement. In particular, on March 19 it was announced that “the spread of the coronavirus infection is of an extraordinary and irreversible nature, therefore it is force majeure» (see the respective letter of the Ministry of Finance of the Russian Federation). That means that the introduction of the high alert regime in the country because of the coronavirus allows customers to purchase goods, works and services from the sole supplier without any tender on the basis of article 93, part 1, paragraph 9 of Federal Law of April 5, 2013 No. 44-FZ “On the Contract System in State and Municipal Procurement of Goods, Works and Services”. At the same time the Federal Antimonopoly Service sent a letter to its territorial units with the information about the admissibility of procurement from the sole supplier. These circumstances entail high risks of abuse of this clause as the ground for refusal to resort to competitive procurement procedures, as well as of distribution of contracts in favour of companies affiliated to public officials and misuse of public funds.

Tags
Civil society
Corruption in public procurement
Sanctions
Transparency

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