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

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

EuropeAid Historical 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

EuropeAid OECD Convention on Combating Bribery 1997 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 38 Signatories: o OECD Members o Argentina o Brazil o Bulgaria o Estonia o Slovenia o South Africa All signatories recently adopted the 2009 Anti Bribery Recommendation

EuropeAid OECD 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

EuropeAid OECD 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 o Easier to sanction cross-border bribery

EuropeAid OECD 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 countrys 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) International Cooperation (Art.43-50) Asset Recovery (Art.51-59) Criminalization (Art )

EuropeAid United 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

EuropeAid United 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

EuropeAid United 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

EuropeAid United 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

EuropeAid UNCAC 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 institutions BUT Can contribute to public debate Can improve quality of rules – i.e. institutional legislative framework – and provide mutual legal assistance

EuropeAid The 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.

EuropeAid The 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.

EuropeAid The 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.

EuropeAid The 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

EuropeAid The African Union Convention on Preventing and Combating Corruption States Parties must: o Submit reports regularly to the AUs Executive Council detailing progress in compliance. o Have their national anti-corruption authorities annually report to the Advisory Board on implementation progress o 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.

EuropeAid NameYearReachMeasuresAdvantagesWeaknessesOffences OECD1997 Global/in ter- 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 UNCAC2003Global Prevention, criminalization, international cooperation Innovation – asset recovery, broadest range Monitoring Not all art. binding Public/private recognized AU Convention on Prevention and Combating Corruption 2003Regionalprevention, 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 funding mandatory requirements of declaration of assets by designated public officials and restrictions on immunity for public officials Not in forcebribery (domestic or foreign), diversion of property by public officials, trading in influence, illicit enrichment, money laundering and concealment of property Public 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