EuropeAid

International Conventions Combating Corruption

Mr Sumedh Rao, Governance & Social Development Resource Centre (GSDRC)

European Commission Training Seminar: EC Support to Governance

in Partner Countries (Africa focus)

4-8 July 2011

EuropeAidInternational Conventions Combating Corruption

•OECD Convention on Combating Bribery•United Nations Convention against Corruption (UNCAC)•African Union Convention on Preventing and Combating Corruption

EuropeAidHistorical Context

• 1810 Napoleonic Code• 1977 Foreign Corrupt Practices Act (FCPA) • 1996 Inter-American Convention against Corruption• 1997 OECD Convention on Combating Bribery of Foreign

Public Officials in International Business Transactions• 1998 Council of Europe Criminal Law Convention on

Corruption• 1999 Council of Europe Civil Law Convention on Corruption• 2003 African Union Convention on Preventing and Combating

Corruption, AUCAC• 2003 United Nations Convention against Corruption, UNCAC

EuropeAidOECD Convention on Combating Bribery

• 1997 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions • 38 Signatories:

o OECD Memberso Argentinao Brazilo Bulgariao Estoniao Sloveniao South Africa

• All signatories recently adopted the 2009 Anti Bribery Recommendation

EuropeAidOECD Convention on Combating Bribery

• Primarily focused on the ‘supply side’ of bribery

o (i.e. those that give the bribe – voluntarily or not)

• Defines and criminalises the act of bribing foreign officials• BUT Does not cover private-to-private

bribery• No prevention, witness protection,

whistleblowers, facilitation payments

EuropeAidOECD Convention on Combating Bribery

• Signatories must:o Establish, as a crime, the bribery of

public servants within national legal frameworks

o Provide means and measures to: ‘prevent, detect, investigate, prosecute and sanction foreign bribery’

• Broad interpretation of territorial basis for jurisdiction

Easier to sanction cross-border bribery

EuropeAidOECD Convention on Combating Bribery

• Implementation and monitoring through OECD Working Group on Bribery in International Business Transactions• Two phase reviews:

o Phase One: Evaluates adequacy of signatory country’s legislation to implement the Convention

o Phase Two: Assesses whether a country is applying this legislation effectively

• Participating delegates are subject to evaluation AND expected to act as evaluators• BUT Lack of active enforcement by majority

of parties so far

EuropeAid

4 key pillars of the United Nations Convention against Corruption (UNCAC)

Prevention(Art. 5-14)

InternationalCooperation

(Art.43-50)

AssetRecovery

(Art.51-59)

Criminalization(Art. 15-42)

EuropeAidUnited Nations Convention against Corruption (UNCAC)

Prevention:• Effective and coordinated anti-

corruption policies  • Anti-corruption bodies• Competitive and fair public

procurement  • Independent judiciary • Fair and transparent private sector

EuropeAidUnited Nations Convention against Corruption (UNCAC)

Criminalization and law enforcement

• Mandatory offences – bribery,

embezzlement, money laundering,

obstruction of justice

• Other criminal offences – passive

bribery, influence trading, abuse of

function

 

International cooperation

• Extradition

• Mutual legal assistance in

investigations, prosecution and legal

proceedings

EuropeAidUnited Nations Convention against Corruption (UNCAC)

Asset recovery

• “The return of assets is a fundamental

principle of this Convention…”

• States Parties must require their

financial institutions to be vigilant  

• Return of assets:o Embezzled public funds Return to

requesting Party

o Proceeds of other offences of corruption

Return to requesting Party

o Confiscated property Returned to the

requesting Party or for compensating victims

EuropeAidUnited Nations Convention against Corruption (UNCAC)

• Self-assessment system (UNODC)• Peer review process:

o Each State reviewed by two other States. State under review should be involved

o Governmental experts will be appointed by States to carry out reviews

o Active dialogue between the country under review and reviewers is a key component of the process

EuropeAidUNCAC Implementation Challenges

• Weak on enforcement tools – e.g. accountability mechanisms• Does not address political

dynamics which hinder anti-corruption reform• Self-assessment does not

consider context• May not be prescriptive

enough relating to oversight institutionsBUT • Can contribute to public debate• Can improve quality of rules – i.e. institutional legislative

framework – and provide mutual legal assistance

EuropeAidThe African Union Convention on Preventing and Combating Corruption

• No definition of corruption but explicitly recognises particular acts of corruption and related offences

• Mandatory offences:o Active and passive bribery of national

public officials;o Active bribery of foreign and

international public officials;o Embezzlement, misappropriation or

other diversion of property by a public official; and,o Laundering of the proceeds of corruption.

EuropeAidThe African Union Convention on Preventing and Combating Corruption

• Includes the following acts as mandatory that the UNCAC does not:

o Passive bribery of foreign and

international public officials;o Active and passive bribery in the

private sector;o Trading in influence;o Embezzlement, misappropriation or

other diversion of property in the

private sector; and,o Illicit enrichment.

EuropeAidThe African Union Convention on Preventing and Combating Corruption

• Set of provisos to integrate into all public officials’ Codes of Conduct

• Proposes special control body to:o develop and monitor

implementation of codes of conduct,

o raise awareness, and o provide training for public officials

on ethical good-practice.

• Establish, maintain and strengthen independent national anti-corruption agencies.

 

EuropeAidThe African Union Convention on Preventing and Combating Corruption

• Emphasis on dealing with proceeds of corruption:o State Parties enact laws to empower authorities to seize financial

documents

o Measures to establish conversion, transfer

and disposal of proceeds of corruption

• Advisory Board on Corruption:o promote anti-corruption work;

o develop methodologies;

o collect information on corruption and behaviour

of multinational corporations working on the African continent;

o advise the governments on implementation of convention;

o develop codes of conduct for public officials; and

o build partnerships 

EuropeAidThe African Union Convention on Preventing and Combating Corruption

• States Parties must:o Submit reports regularly to the AU’s Executive Council

detailing progress in compliance.o Have their national anti-corruption

authorities annually report to the

Advisory Board on implementation

progresso Build partnerships with the African

Commission on Human and Peoples’ Rights,

African civil society, and governmental, intergovernmental

and non-governmental organisations to facilitate dialogue in

the fight against corruption and related offences.

EuropeAidName Year Reach Measures Advantages Weaknesses Offences

OECD 1997 Global/inter-regional

Criminalisation and mutual legal assistance measures, as well as requirements regarding company accounting

Addresses supply side of international corruption with regard to the main exporting nations. Provides for extensive and rigorous monitoring of countries´ compliance with the Convention

Unresolved: Bribery acts in relation to foreign political parties. Advantages promised or given to any person in anticipation of that person becoming a foreign public official. The role of off-shore centers in bribery transactions.

Bribery – foreign public officials

UNCAC 2003 Global Prevention, criminalization, international cooperation

Innovation – asset recovery, broadest range

MonitoringNot all art. binding

Public/private recognized

AU Convention on Prevention and Combating Corruption

2003 Regional prevention, criminalization, regional cooperation, mutual legal assistance and recovery of assets

Comprehensive approach, mandatory provisions with respect to private-to-private corruption and on transparency in political party fundingmandatory requirements of declaration of assets by designated public officials and restrictions on immunity for public officials

Not in force bribery (domestic or foreign), diversion of property by public officials, trading in influence, illicit enrichment, money laundering and concealment of propertyPublic and private

Overview of OECD, UNCAC and AUCPCC

EuropeAid

International Conventions Combating Corruption

Mr Sumedh Rao, Governance & Social Development Resource Centre (GSDRC)

European Commission Training Seminar: EC Support to Governance

in Partner Countries (Africa focus)

4-8 July 2011