Introduction
Corruption is a complex social, political, and economic phenomenon that affects all countries, significantly undermines democratic institutions, slows economic development, and contributes to governmental instability.
It is a severe impediment to the rule of law and sustainable development. It attacks the foundation of democratic institutions by distorting electoral processes, perverting the rule of law, and creating bureaucratic quagmires whose only reason for existing is the solicitation of bribes.
That is why the field of anti-corruption legislation requires all countries to reform national legislation to meet the international standards set by the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions; the Council of Europe’s Criminal Law Convention on Corruption; and the United Nations Convention against Corruption (hereinafter referred to as the OECD, Council of Europe and UN Conventions).
Corruption Definition by the United Nations
As defined by the United Nations itself, the definition of corruption is:
“A complex social, political, and economic phenomenon that affects all countries. Corruption undermines democratic institutions, slows economic development, and contributes to governmental instability. Corruption attacks the foundation of democratic institutions by distorting electoral processes, perverting the rule of law, and creating bureaucratic quagmires whose only reason for existing is the soliciting of bribes.”
The International community recognized the need for a global, legally-binding instrument dealing with corruption. As a result, the United Nations General Assembly in October 2003 adopted the UN Convention against Corruption (UNCAC), working on this area. However, once adopted, it needed two years to enter into force in December 2005, and 81 countries of the UN ratified the convention by January 2007 (187 Parties as of 6th of February 2020).
With this critical step, the UN clarified that the fight against corruption had started. Furthermore, having all the national legislations meet international standards made it easier for the countries to cooperate, conduct international investigations, and help each other regarding this matter.
At first, the Legislative Guide for the Implementation of the United Nations Conventions against Corruption was developed along with a Technical Guide to provide practical support to State Parties in implementing the main provisions of the UN Convention. That is the most comprehensive anti-corruption tool providing the broadest range of corruption offences, including active and passive bribery.
With these actions, international criminal standards were introduced, and other offences were determined with the possibility of being enforced by the authorities. Some of them were obstruction of justice, illicit enrichment, and embezzlement. In addition to these actions, UNCAC prescribes preventive measures, international cooperation, and technical assistance. But, only some provisions of the Conventions are mandatory for the countries.
This fact makes it more complex to implement. It is simply because states must first identify where and how their legislation falls below the standards of the convention and change it. For example, if domestic law does not incriminate the bribery of foreign public officials, it cannot be enforced accordingly. Or, when the definition of incrimination does not include part of the international definition of the offence, it cannot be processed in front of the court and sanctioned accordingly. So all the countries, when they find differences in their domestic laws, must rectify those deficiencies so the cooperation can go smoothly and fluently.
Acts and Actors of Corruption
Surprisingly, UNCAC doesn’t define corruption as such. Rather, the convention lists a series of offences that must be criminalized and hence, covered by the legal provisions of every jurisdiction covered by the UNCAC. Some examples of these offences are bribery of national and foreign public officials, embezzlement, money laundering, concealment, and obstruction of justice.
Article 2 of UNCAC uses the functional definition of the term “public official” and covers anyone holding a legislative administration, executive or judicial office or anyone who performs a public function or provides a public service.
What are the legal measures available to State Parties under UNCAC Provisions?
UNCAC has 8 chapters and 71 articles. There are mainly five legal measures available to State Parties under UNCAC Provisions:
Prevention
While corruption is capable of being prosecuted, however, first and foremost, it requires prevention. Chapter II of the convention only deals with preventing corruption directed towards the public and private sectors. Some of the inclusions in the chapter include the model preventive policies, such as establishing anti-corruption bodies. The states must ensure that all public services are complemented with transparency, efficiency, and recruitment based on merit. Once the public servants have been recruited, they must be subjected to codes of conduct and appropriate disciplinary measures and be subject to financial and other disclosures.
Efforts for prevention are also required from society at large. This is why the convention further calls on countries to promote the involvement of non-governmental and community-based organizations, along with trying to raise awareness in public against corruption and corrupt practices. It becomes the duty of each State Party to promote practices in line with the prevention of corruption, as per Article 5 of the Convention.
Criminalization
This measure has been included in Chapter III of the Convention. Under this chapter, states are required to establish criminal and other offences against acts of corruption, provided that they have not already been criminalized under the respective domestic laws of the countries. The convention criminalizes the basic forms of corruption (such as embezzlement and bribery) and acts such as concealment and laundering of proceeds or trading in influence.
In addition, offences such as money laundering and obstruction of justice have also been included in this chapter.
International Cooperation
This measure has been included in Chapter IV of the Convention. Here, State Parties are obligated to assist in handling cross-border criminal matters. This includes transferring and gathering evidence of corruption for use in a court of law. Therefore, cooperation in criminal matters becomes mandatory.
Asset Recovery
This is the ‘fundamental principle’ of the convention and has been included within Chapter V of the Convention. Many observers believe that this is the main ‘selling point’ of the convention and one of the primary reasons why so many countries have agreed to ratify this convention. In addition, the UNCAC provides:
- A framework for adapting criminal and civil laws to deal with the concepts of freezing.
- Tracing.
- Returning funds and forfeiting.
Technical Assistance and Information Exchange
This measure has been included under Chapter VI of the Convention. This involves the process of helping each other to help countries comply with the rules and regulations that have been established under the UNCAC. This includes training, human resources, information sharing, etc. In addition, under this chapter, state Parties have been encouraged to help each other evaluate the causes and costs of corruption, keeping specific contexts in mind.
What can and what cannot be done by UNCAC?
What can UNCAC do?
- It provides an international basis for cooperation and acts as a political tool to encourage dialogue between countries, governments, and citizens.
- It provides a list of universal or model corruption rules and establishes ways to address such issues.
- It can foster an international exchange of expertise and good practices. Therefore, its existence becomes essential to coordinate international assistance.
What can UNCAC not do?
- It is not a blueprint for anti-corruption reforms. It is only a compilation of essential measures without any specific sequencing. They must be moulded to suit country-specific issues, manifestations, and dynamics involved in corruption.
- It is not a one-size-fits-all approach and should not be confused with the same meaning.
- Ratifying UNCAC doesn’t mean that the country has provided its political will since the same might be done to deflect criticism or to become overambitious implementation plans.
The Implementation Review Mechanism
The decision to create an implementation review mechanism was taken in the third session of the Conference of the State Parties (COSP), held in Doha, Qatar, in 2009. The multi-stage peer review mechanism involves a review procedure for each State Party by the two peers, wherein one is from the same UN region and the second is from another UN region.
The mechanism officially started in July 2010, when the Implementation Review Group met for the first time. The review process has mainly been divided into 2 five-year cycles wherein countries are randomly selected and reviewed in each year of the cycle. While the first cycle covers Chapters III and IV of the Convention, the second covers Chapters II and V.
Crucially, there is no follow-up procedure for the findings and recommendations in either implementation review cycle. However, some countries have voluntarily reported on the efforts taken by them after the completion of the review.
The review procedure mainly consists of a self-assessment report system for the reviewed country. Country visits are included only if the reviewed country has requested the same.
At the end of the review process, the key document that must be submitted is an executive summary, later released on the UNODC (UN Office on Drugs and Crime) website.
Transparency and Participation in the UNCAC Review
The other key documents of the review procedure may be brought within the public domain if and only if the reviewed country acts to allow the release. These may include the self-assessment checklist, in which details are provided related to how the reviewed country has worked upon the UNCAC recommendations. The second document might be the full report detailing the implementation of the convention’s provisions, relevant statistics, enforcement data, and all other recommendations.
Contrary to what had been aimed through Article 5 and 13 of the Convention, rules of procedure for the review mechanism does not require any participation and consultation of the relevant non-governmental stakeholders, including the civil society groups, within the review process. However, the involvement of the reviewed country has been encouraged, even within the preparation of the comprehensive self-assessment checklist, as well as during a country visit of the reviewers.
Obtaining information about the review process is difficult, considering the lack of disclosures of the relevant information.
Conclusion
Good systems are impartial, transparent, and cost-effective. The best way to achieve them is to involve civil society. Our independent input brings credibility to a monitoring process. To help countries meet anti-corruption requirements, we can help check how well a government is doing. We, the active citizens, should highlight improvements and gaps. This gives governments feedback on their performance. Corruption is an execrable matter that we need to eliminate from our countries to straighten justice and the rule of law.
To know more about UNCAC and its effect on your jurisdiction, refer to LegaMart’s excellent team of experienced lawyers today.
