Comments /1365 Views / Wednesday, 9 December 2015 00:00
Nihal Sri Ameresekere
Commencing from as far back as 1970 with the Kyoto Declaration, the process for the formulation of the UN Convention Against Corruption (UNCAC) commenced in December 2000, with the UN General Assembly resolving to establish a Committee for negotiating and formulating the UNCAC. With several subsequent Meetings, UNCAC was formulated and adopted by the UN General Assembly in October 2003, and 9th December was designated as the ‘International Anti-Corruption day’. The UNCAC came into force in December 2005, upon 30 States having ratified the same. Sri Lanka was second State to have ratified in March 2004, under Prime Minister, Ranil Wickremesinghe. As at now 177States have become parties to the UNCAC, the Secretariat and custodian of which is the UNODC.
On the heels of the UNCAC coming into force in December 2005, mooted by UNODC the International Association of Anti-Corruption Authorities (IAACA) was inaugurated in October 2006, with the objectives of promoting and facilitating the implementation of the UNCAC. IAACA held its 8th Annual Conference in November 2015 at St. Petersburg, Russia, preceding the 6th Session of the Conference of State Parties (COSP6) to UNCAC held also at St. Petersburg. Russia recognising the need to combat corruption, itself, is a global achievement, and reflects the pace in which this international movement against corruption is growing.
The UN ‘Universal Declaration of Human Rights’, came into force, as far back as 1948, and has thus developed in its enforcement. On the other hand, UNCAC came into force 57 years thereafter, only 10 years ago, and its development and growth is becoming, not only widespread, but also in depth, even reverberating at the highest levels of States. Sri Lanka after a lapse of several years, participated with a Delegation led by Deputy Minister of Foreign Affairs, Dr. Harsha de Silva.
UNODC Executive Director Yury Fedotov at the G-20 States Meeting in Paris in April 2011 emphatically stated thus: “Corruption has the power to shake the very foundations of society. Even in regions where peace and prosperity prevail, corruption takes a heavy toll ….. Now it’s time for business to move beyond declarations to concrete actions ….. Anti-Corruption Action Plan provides a common approach and an opportunity for the G-20 to lead by example in the global fight against corruption ….. In October this year, the Conference of States Parties to the Convention against Corruption will meet in Marrakech, Morocco to take stock of global progress in preventing corruption …… The UN Convention against Corruption is the first legally binding global anti-corruption instrument. It obliges States to prevent and criminalise corruption, promote international cooperation, recover stolen assets and improve technical assistance and information exchange.”
Conference of State Parties in November 2015 and ‘Sustainable Development Agenda 2030’
United Nations at its Conference in Paris in September 2015 formulated a ‘Sustainable Development Agenda’to be achieved during the 15 years by 2030. Goal No. 16 therein is to ‘promote just, peaceful and inclusive societies’. Some of the specific targets thereunder is to ‘promote the rule of law at the national and international levels and to ensure equal access to justice for all’; further significantly to ‘substantially reduce corruption and bribery in all their forms’; and also to ‘ensure public access to information and to protect fundamental freedoms’. It is in this background that the COSP6 re -the UNCAC was held in St. Petersburg, Russia in November 2015, on the conclusion of which, a Statement was released by UNODC Executive Director, Yury Fedotov.
Extracts from UNODC Chief’s Statement – November 2015
“I am pleased to address you at the closing of the Sixth Session of the Conference of the States Parties to the UN Convention against Corruption-COSP6.
Over the last five days, your discussions have done much to continue the global fight against corruption and bribery.
As I stated in my opening speech, and I wish to stress it once again, countering corruption today is necessary to achieve the sustainable development goals of tomorrow.
And our achievements in St. Petersburg this week are closely linked to the UN’s overall work.
There have been many references to the Sustainable Development Goals and 2030 Agenda during this session. It is clear that Goal 16, which recognises the need to address corruption, is essential to the new development agenda.
States parties are openly acknowledging that preventing corruption and bribery, and the achievement of the 2030 Agenda, are mutually reinforcing. These views underline UNCAC’s importance to the UN’s global efforts.
This week in St. Petersburg, States Parties have agreed to launch the second cycle of reviewing the implementation of the Convention. It will start next year with looking at how countries prevent corruption and facilitate asset recovery.
Over this last week, we have held more than 30 high-level events, as well as dozens of sessions, meetings, informals and other types of discussions.
Valuable discussions have taken place and important decisions adopted ranging from public private partnerships to addressing the needs of small island developing states, and from academic initiatives to confronting the corruption connected to wildlife and forest crime.
Thanks to the ambitious adoption of the SDG’s the noble purpose of this Conference, and the work of the implementation review mechanism, have been given renewed purpose and energy.
UNCAC was already a highly innovative Convention, but with the new development agenda, we have been given a fresh sense of mission; one that we must not fail.
We know that people across the world yearn for access to justice and transparent institutions, and the elimination of the corruption and bribery that makes their lives far harder and far more expensive.
In closing, ladies and Gentlemen, let me also say that COSP6 was witness to a very important event. This was the first time that a message was addressed to the conference by the UN Secretary-General at the opening session.
Allow me to quote from his statement: ‘All of us have a reason to eliminate corruption and to create societies founded on justice, fairness and the rule of law. The world counts on you to take bold decisions and act decisively to strengthen the global fight against corruption and bribery.’
As we make our return journeys, I ask you to give thought to the Secretary-General’s words and to do what is necessary to strengthen the fight against global corruption.
UNODC stands ready to support you in the work that lies ahead. Together, we can turn his stirring words into a reality that can advance the new development agenda and help millions of people.”
Articles of the UNCAC
The UNCAC applies with the equal force to the public and private sectors, where public resources are managed, either by the public sector or by the private sector. The very Index of Articles of the UNCAC set out below brings out its scope:
Articles of the Convention
2. CHAPTER I – GENERAL PROVISIONS
Statement of Purpose
Use of terms
Scope of application
Protection of sovereignty
3. CHAPTER II – PREVENTIVE MEASURES
Preventive anti-corruption policies and practices
Preventive anti-corruption body or bodies
Codes of conduct for public officials
Public procurement and management of public finances
Measures relating to the judiciary and prosecution services
Participation of society
Measures to prevent money-laundering
4. CHAPTER III - CRIMINALISATION AND LAW ENFORCEMENT
Bribery of national public officials
Bribery of foreign public officials and officials of public International organisations
Embezzlement, misappropriation or other diversion of property by a public official
Trading in influence
Abuse of functions
Bribery in the private sector
Embezzlement of property in the private sector
Laundering of proceeds of crime
Obstruction of justice
Liability of legal persons
Participation and attempt
Knowledge, intent and purpose as elements of an offence
Statute of limitations
Prosecution, adjudication and sanctions
Freezing, seizure and confiscation
Protection of witnesses, experts and victims
Protection of reporting persons
Consequences of acts of corruption
Compensation for damage
Cooperation with law enforcement authorities
Cooperation between national authorities
Cooperation between national authorities and the private sector
5. CHAPTER IV - INTERNATIONAL COOPERATION
Transfer of sentenced persons
Mutual legal assistance
Transfer of criminal proceedings
Law enforcement cooperation
Special investigative techniques
6. CHAPTER V - ASSET RECOVERY
Prevention and detection of transfers of proceeds of crime
Measures for direct recovery of property
Mechanisms for recovery of property through international cooperation in confiscation
International cooperation for purposes of confiscation
Return and disposal of assets
Financial intelligence unit
Bilateral and multilateral agreements and arrangements
7.CHAPTER VI - TECHNICAL ASSISTANCE AND INFORMATION EXCHANGE
Training and technical assistance
Collection, exchange and analysis of information on corruption
Other measures: implementation of the Convention through
economic development and technical assistance
8.CHAPTER VII - MECHANISMS FOR IMPLEMENTATION
Conference of the States Parties to the Convention
9.CHAPTER VIII - FINAL PROVISIONS
Implementation of the Convention
Settlement of disputes
Signature, ratification, acceptance, approval and accession
Entry into force
Depositary and languages
At previous Annual Conferences having dealt in depth with the contents of the Articles of the UNCAC, the IAACA Annual Conference in November 2015 was on the theme ‘Prevention and Education’, vis-à-vis, combatting corruption; and IAACA issued a Declaration, inter-alia, calling upon State Parties to further embrace a comprehensive multi-stakeholder approach to combatting corruption, and to strengthen the dialogue between Governments, civil society, academia and the private sector, in order to garnish support for the implementation of the UNCAC, as reflected by the UNODC Chief’s Statement at the conclusion of COSP6.
At high-level discussions and sessions, the private sector’s duty and obligation to conform with the UNCAC was emphasised, with suggestions of public-private partnerships to combat the cancerous menace of corruption. Politicians from the public sector and professionals from the private sector carry a greater burden, duty and responsibility towards ensuring the conformity with the Articles of the UNCAC.
As a consequence of the development of enforcing the implementation of the UNCAC, State Parties completed the first cycle of an Implementation Review of Mechanism, where randomly selected States were reviewed by other States. Though this brings about an educative process and exchange of information between States focused on implementation of the UNCAC, it is a tragi-comedy, where a less corrupt State is reviewed by a more corrupt State! The second cycle of the Implementation Review Mechanism is to commence. However, the results of such Implementation Review of Mechanism are not yet made public, though civil society is the appropriate sector to ensure compliance by their respective States, as demonstrated by public outcries against mega corruption by citizens in several States.
Many a government comes to power avowing to combat fraud and corruption, but once installed in power, they get bogged down in the very quagmire of fraud and corruption, with allegations and scandals. It was encouraging to observe at the high-level discussions, delegates urging towards the creation of an International Court for civil society to hold accountable and responsible political leaders of States, who have embezzled the resources of the people, blatantly stifling Anti-Corruption Agencies, since endeavours thereafter to hold them accountable and responsible and to prosecute are seen to be thwarted by socio-political influences, partiality and political compulsions.
It is the civil society that should be called upon to play a pivotal role in the combat against fraud and corruption and to ensure the effective enforcement of the rule of law. Insatiable greed by a socio-politically powerful few to pillage and plunder the resources of the people, results in the denial to the vast multitude of the impoverished poor their dire needs of livelihood, including food, healthcare, education, housing, et al, which in effect is a violation of human rights, and needs to be so addressed. Pope Francis quoting the Bible once having pronounced that - “the necks of the corrupt persons should be tied to a rock and they be thrown into the sea”, and describing that “persons engaged in corruption appear beautiful from outside, but are full of dead bones and putrefactions inside”, His Holiness during the recent visit to Africa severely castigated corruption as further impoverishing the poor.
In a World Bank Staff Working Paper No. 580, David J. Gould and Jose A. Amaro-Reyes reported that: “Corruption is pervasive in the countries of Asia, Africa and Latin America. The government monopoly of economic activities in developing countries, when combined with conditions of political ‘softness’, widespread poverty and socio-economic inequalities, ambivalence towards the legitimacy of government and its organisations and systematic maladministration, provide fertile grounds for corruption, which ... has a deleterious, often devastating effect on administrative performance and economic and political development, for example corroding public confidence, perverting institutions’ processes and even goals, favouring the privileged and powerful few, and stimulating illegal capital export or use of non-rational criteria in public decisions.”
Nevertheless, SAARC countries enmeshed in mega corruption, at their Heads of State Summits have never dealt with the issue of corruption, whilst ironically lamenting on the poverty of the impoverished poor in the region.
The above perception that fraud and corruption was pervasive in less develop States was proven wrong by Enron and WorldCom frauds and the fall of the reputed Auditors, Arthur Anderson, resulting in the enactment of Sarbanes-Oxley Act in the US. Thereafter financial scams in 2008 in the US and Europe by supposedly respected Banks and financial institutions caused such economic impact, for Governments to step in to bail them out, with ‘stimulus’ packages, whilst leading financial institutions, such as Lehman Brothers went into bankruptcy. In December 2014 it was reported that UBS, Citigroup, JPMorgan Chase, Royal Bank of Scotland and HSBC had agreed to pay a total of US $ 3.3 billion in fines on probes among Regulators in the US and Europe.
It is the civil society agitations on a platform of major corruption allegations, which led to the installation in office of the present Government, committed to combat corruption and ensure good governance. This led to Article 46 of the Nineteenth Amendment to the Constitution, introducing Article 156A(1)(c) which stipulated that “Parliament shall by law provide for measures to implement the United Nations Convention Against Corruption and any other International Convention relating to the prevention of corruption, to which Sri Lanka is a party.”
Sri Lanka has a multiplicity of non-correlated Statutes, with responsibility of enforcement by several agencies, whereby notwithstanding all the good intentions, the menace of corruption became worse. What Sri Lanka needs today, given the political commitment, is the enactment of an all-encompassing Statute to fulfil all the obligations stipulated in the Articles of the UNCAC, and a multi-disciplinary Agency for investigation and prosecution, with private expertise and foreign technical assistance drawn where necessary. This needs to be on a planned strategy, with private expertise with the education of the investigators, prosecutors, judiciary, et al, and also with the education of the public of the consequences of corruption, and the offences under such Statute, with prevention measures also put in place. All being equal before the law and ruled by the law, such investigations and prosecutions should be non-selective, regardless of the status and standing of personalities, sans any socio-political considerations. In certain States investigations and prosecutions are closely monitored through interaction of teams or by supervisory oversight and/or with review by civil society representatives.
(The writer, F.C.A. F.C.M.A., C.M.A., C.G.M.A., C.F.E., is Sri Lanka Co-coordinator, International Association of Anti-Corruption Authorities; Associate Member, American Bar Association; and Director, International Consortium on Governmental Financial Management.)
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