Innovative measures

The reflection on the existing criminal measures indicates that Kuwait has so far adopted adequate criminal measures to counter corruption. However, the effectiveness of such measures to deal with the problem of grand corruption in Kuwait is questionable and they lack innovation. Therefore, this section articulates innovative reforms to effectively consolidate the counter-corruption efforts and discusses how relevant to the existing criminal measures these ‘innovative’ reforms could be. It is argued here that the Kuwaiti criminal measures should be complemented by other instruments, powers, and approaches. This section focuses on approaches to consolidate the whistleblowing system (section 4.4.2.1) and prosecutorial agreements (section 4.4.2.2).

Bounty hunting and public mobilisation strategies

Reflecting on what the interviews with the experts revealed, evidence-related difficulties in proving wrongdoing can be identified as a common pattern. This section is concerned with attenuating these difficulties by suggesting innovative reforms to be introduced to the existing whistleblowing system in Kuwait. The first strategy is ‘bounty hunting’. This strategy is concerned with the role of perpetrators as the most informed parties and spurring them to self-report. The second strategy is ‘public mobilisation’. This strategy is directed at encouraging more individuals (non-offenders) to blow the whistle.

In regard to the bounty hunting strategy, the analysis is directed more at the perpetrators. Detecting corruption is a difficult task because usually the perpetrators are the only people in the unique position of knowing about the corrupt deal. Increasing the possibility of detection is a function of whether there are incentives to induce any of the perpetrators to report to the authorities.[1] In fact, nothing is novel for the Kuwaiti law in regard to this conclusion. In pre-defined conditions, the perpetrators are already immune from punishment if they secure the punishment of the other offenders. However, this immunity is permissive if the self-reporting is done after the commission of the offence. Among the shortcomings, the eligibility of perpetrators for the WPP and the rewards scheme is questionable because their statutory provisions were drafted in a general sense. The ACAA does not clearly articulate the intention of the legislature to apply the WPP and reward scheme to whistleblowers who are perpetrators. There is a risk that they are excluded from the rewards, especially based on the principle that no offender should benefit from his/her illegal act.

The uncertainty around their entitlement to the rewards could discourage them from reporting.

The leniency programmes based on the waiver of criminal prosecution may be insufficient to encourage the perpetrators of illegal activities to self-re-port,[2] especially if the potential gains of the corrupt deal are too much to be waived, and the trust between the perpetrators is entrenched. Therefore, not only must the law offer immunity to spur perpetrators to self-report their misconduct, but it should also be designed to increase the risks of engaging in corruption, particularly in cooperative crime. There may be a more effective bounty hunting strategy that threatens to undermine the trust built around corrupt deals. This strategy may take advantage of the fact that corruption is vulnerable to ‘opportunism’. The law can position the corrupt against each other from the first moment of the criminal enterprise. For example, a mechanism called the ‘conspirator dilemma’ suggests that the first offender to file a lawsuit is entitled to collect the fine from the other accomplices (besides being criminally immune). Each offender risks the other offender defecting and initiating a lawsuit to collect the fine from him/her as a reward. This strategy is inspired by the idea of Becker and Stigler regarding the privatisation of enforcement and the compensation of enforcers.

However, the idea of private enforcement of corruption laws is not attractive to the Kuwaiti policymakers at the moment. Therefore, to introduce the ‘conspiracy dilemma’ to the existing whistleblowing system, some adaptations are necessary. The first offender to report to Nazaha about the other would be entitled to two advantages: criminal immunity and rewards equal to the fine that would be imposed on the other offender(s). To further encourage self-reporting earlier, the law may differentiate between whether the self-reporting is done before or after the crime is committed. If it were done beforehand, the conspirator would be rewarded the whole fine; if it were done after the crime had been committed, the offender would get a portion of the fine. In the latter case, the immunity and reward scheme must be obligatory. Interestingly, the fines in the Kuwaiti counter-corruption laws are remunerative enough to encourage an offender to report before committing the crime, waiving the illegal gains he/she would gain. With increases in the law enforcement activities, it becomes rational for the conspirator to report and get as much of the gains as possible before being detected.

The reform proposed seems to be revolutionary for the Kuwaiti legal system, because it not only involves the immunity of the offender, but also allows for one offender to take advantage of the ‘carrots’ - the benefits that would be gained from the criminal activity. The gist of this radical reform may be justified on

Criminal counter-corruption measures 191 utilitarian grounds. Since it revolves around the reciprocity inherent in cooperative corruption, there should be methods to inhibit this reciprocity: Lambsdorff argued that, ‘To root out corruption, it may be necessary to risk destroying some of the confidence that goes along with it - the trust that expects corrupt favors to be reciprocated’.[3] Distrust should be created among offenders, who could be placed in a race in terms of who reports first. The point is that this suggested reform is different from the existing leniency provided for the offender. The former is generous and ensures a much larger reward, especially in the early stage of the crime, which makes defection a lucrative decision. The suggested reform is also consistent with what Dworkin and Near observed, that is, that the whistleblowing laws have undergone a shift from valuing motivation over information, to valuing information over motivation.

Unlike the first strategy, the ‘public mobilisation’ strategy is directed at whistleblowers who are non-participants in the crime. The problematic assumption addressed here relates to ‘inactive observers’ who observe the wrongdoing but do not report it. One cause giving rise to this problem is the ethical duality of whistleblowing: while it can be seen as an ‘act of justice, serving to right a wrong’, it can also be seen as ‘a grave betrayal’. Psychological research shows that the trade-off between fairness and loyalty values constitutes an important predictor that affects one’s decision regarding whether to blow the whistle. These values arc arguably linked to the culture of a society. Hofstede stresses that, unlike ‘individualistic’ societies where the people only look after themselves and their immediate family, ‘the loyalty to the group’ is an essential feature of ‘collectivist’ societies. The problem here is of a cultural nature: where the collectivist culture dominates, the loyalty value prevails and there is a tendency to overlook unethical conduct, leading, eventually, to a decrease in the possibility of whistleblowing.

Studies have found that collectivist societies tend to support unethical acts as long as they lead to benefits for the in-groups. Although the studies mentioned here deal with the employees within one organisation, they can be extended to broader contexts: the relationships between the whistleblowers and their in-group members. In Kuwait, where the social construction strongly comprises interpersonal relationships within cohesive in-groups (clans, tribes, and sects), the loyalty value may affect one’s ethical decision to report others’ wrongdoing. Driven by the loyalty value, the would-be whistleblower is not

expected to expose the wrongdoing of a member of his/her family or tribe. In this social situation, where the loyalty value dominating the interrelations in Kuwaiti society may affect the willingness to report wrongdoing, it is important to build what may be called ‘constructive dissent’, where people are encouraged to express their dissent while maintaining the loyalty among in-groups.[4] Changing people’s interpretation of what is beneficial for them is more plausible than changing the cultural values of a whole society. Whistleblowing would be seen as an essential part of being a loyal group member by achieving the common good. The role of codes of conduct within governmental bodies is of utmost importance.

Whistleblowing is not just a matter of formal rules, such as laws. Other informal actors may also be involved in whistleblowing. NGOs can perform educative roles embodied in raising the awareness of people. They can promote the social acceptance of whistleblowing and provide moral support for people to break any cultural barriers to whistleblowing and enable them to see it as a beneficial matter for all of society. In Kuwait, the interviewees stressed that NGOs also play a role in incentivising people to resist corruption and report misconduct. Before the advent of the ACAA, in line with the TI’s Advocacy and Legal Advice Centres, the Kuwait Transparency Society (KTS) established the Faz’aa Centre for legal guidance and advocacy in February 2011. NGO-2 explained that this centre has received more than 43 reports about suspiciously corrupt practices. The success that the Faz’aa centre has achieved could be explained by the deliberative nature of the mechanism that the KTS has adopted in responding to the reports received. NGO-2 explained this success:

We went to the senior officials responsible for the body where the suspicious act had been committed. We succeeded in many cases. For example, we stopped a suspicious tender in the Ministry of Health in relation to nursery activities. We also succeeded on other occasions when we communicated with the Minister of Interior regarding suspicious practices during the general election.

NGO-3 also referred to the ‘Report Campaign’, which expressly aimed to encourage people to report bribery cases that they had confronted. Broadly speaking, the campaign aimed to consolidate the principle of accountability: ‘when an officeholder is aware that people are being supported to report bribery,

Criminal counter-corruption measures 193 that official will be certain that he/she can be held accountable at any time, and hence, will stop being involved in bribery’.[5] Although these examples of informal, civil society-backed initiatives are limited in terms of the financial rewards and other incentives, they are practical and help people get involved in whistleblowing informally but effectively. The official channels for whistleblowing, as Martin argues, sometimes do not work, and it is wise to first take precautionary steps. The NGOs may act as experienced organisations that help whistleblowers deliver their claims in the right way. They can also help build and mobilise sympathetic supporters so that the whistleblower does not fall into the trap of ‘relying solely on the truth’. TI contends that especially in grand corruption cases, which are politically sensitive, reporting to the NGOs will prevent the authorities from overlooking or covering up the wrongdoing.

  • [1] Rose-Ackerman (1999). 2 See section 4.3.7. 3 ACAA, s.44. However, section 160 of the CJA renders the immunity obligatory in other offences punishable for 7 years and more. 4 Nazaha (2017b, p. 7). See also .
  • [2] See sections 4.3.7 and 4.4.1. 2 Lambsdorff (2007, p. 51). 3 See Yadlin (2006, pp. 26-29). 4 See Becker and Stigler (1974).
  • [3] See Lambsdorff (2007, p. 55). 2 Dworkin and Near (1997). 3 Ibid., p. 6. 4 See Dungan, Waytz and Young (2015, p. 129). 5 See Waytz, Dungan and Young (2013). 6 Hofstede (2001, pp. 225-229). 7 Dungan, Waytz and Young (2015). 8 Sims (2009). 9 See chapter 2.3.4.1.
  • [4] Dungan, Waytz and Young (2015, p. 131). 2 Sims (2009). 3 Dungan, Waytz and Young (2015). 4 See chapter 5.3.2.1. 5 Myers (2014). 6 NGO-2; NGO-3. 7 See . 8 NGO-2.
  • [5] NGO-3. 2 Martin (2009). 3 Martin (2013, pp. 15-16). 4 Transparency International (2018). 5 ACAA, s.27. 6 CJA, s.9. 7 Ibid., ss.101-104 bis. 8 Ibid., ss.240-243. 9 Ibid., ss.109 and 240.
 
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