UN Conference in Morocco on UN Convention Against Corruption

The Fourth Session of the Conference of State Parties to the UN Convention Against Corruption is being held on 24 to 28 October 2011 at Marrakech, Morocco, inter-alia, to review progress by State Parties of the implementation of the UN Convention, and to examine the mechanism implemented for the review of compliance by State Parties of the Convention.

The international endeavour to combat corruption had been initiated in 1970, with the Kyoto Declaration of the Fourth UN Congress. With progressive steps having been taken thereafter, by the General Assembly Resolution of 4 December 2000, an Ad-Hoc Committee was established by the United Nations for the negotiation and formulation of an UN Convention Against Corruption.

The Ad-Hoc Committee finalised its negotiations and in October 2003, the UN General Assembly adopted the Convention Against Corruption, and designated 9 December to be the ‘International Anti-Corruption Day’. Ratification by 30 State Parties was required for the Convention to enter into force. The UN Convention Against Corruption, entered into force on 14th December 2005, upon ratification by 30 State Parties.

Former UN Secretary General, Kofi Annan, upon the adoption of the UN Convention stated: “Corruption hurts the poor disproportionately by diverting funds intended for development, undermining a government’s ability to provide basic services, feeding inequality and injustice, and discouraging foreign investment and aid.”

Sri Lanka having signed the UN Convention Against Corruption on 15 March 2004, very promptly ratified the same on 31 March 2004, becoming the second country to have ratified the same. Having spontaneously done so, Sri Lanka is yet to have in place a comprehensive statutory framework, with effective administrative mechanisms, to fulfil the obligations and commitments under, and to ensure acting in conformity with the stipulations in the Articles of the UN Convention Against Corruption, which is a matter to be reviewed.

Ironically on the other hand, as per Transparency International’s perception Index, Sri Lanka is deemed to be a country where corruption is pervasive at a very high level. Politics being intertwined with business, particularly after the 1978 Constitution demanding colossal amounts of finances to fund election campaigns, such funding of politicians has invariably led to dubious deals perpetrated, causing colossal losses to the resources of the people, in brazen breach of the commitments and obligations under and stipulations in the UN Convention Against Corruption, which Sri Lanka had eagerly ratified.

2,500 years prior to the UN Convention Against Corruption, in ‘The Great Chronicle’ – ‘The Mahawansa’ – recording the history and heritage of Sri Lanka, the rubrics of management of the resources of the people, as being held in trust on their behalf by those governing them, had been defined thus:

“…The ruler’s trusteeship of the resources of the State which belong to the people is a part of the legal heritage of Sri Lanka dating back at least to the third century BC as pointed out by Justice Weeramantry in his separate opinion in the International Court of Justice in the Danube Case, by quoting the sermon of Arahath Mahinda to King Devanampiya Tissa as recorded in The Great Chronicle – Mahawamsa*”

Such historical dicta had been cited and upheld by the highest judiciary of the country viz – in SC (FR) No. 158/2007. The spontaneous ratification of the UN Convention Against Corruption therefore was a necessity in the context of such historical and sacrosanct dicta. Tragically, such much venerated dicta is blatantly violated, whilst those in power avowedly publicly espouse otherwise.

Not only are the prevalent laws not being effectively enforced to deal with fraud and corruption, except in selective instances apparently motivated by political expediency, but also the apathy and the nonchalant attitude on the part of law enforcement authorities, themselves, make a mockery of the claim of upholding democratic norms of civilised societies.

Let alone those against whom serious allegations have been raised in the public domain, but grave and serious findings against persons involved in the perpetration of major scandalous frauds of national economic proportions, allegedly replete with corruption, are being shielded and protected through political patronage, by both sides of the political divide.

What is even more shocking is that such persons, who ought be arraigned before the law, in upholding and enforcing the rule of law, are shamelessly sanctified by religious leaders seeking the limelight, thereby blatantly baptising fraud and corruption, regardless of the country’s commitments under the UN Convention Against Corruption, and the proud heritage of Sri Lanka, put in jeopardy.

The World Bank Staff Working Paper No. 580, on ‘The Effects of Corruption on Administrative Performance’, David J Gould and Jose A Amaro-Reyes had reported thus:

“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 socioeconomic inequalities, ambivalence towards the legitimacy of government and its organisations and systematic maladministration, provides 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.” It is of poignant significance that abject poverty is a major issue in South Asia, with poverty alleviation programs ardently advocated and funded through State funds, which are the very resources of the people, themselves, and/or by borrowing from interventional agencies, to be re-paid by the future generations.

It is indeed ironical, that the SAARC Agenda has not deemed it a dire necessity to have dealt with the cancerous menace of rampant and unbridled corruption in the region. This alone speaks volumes of the softness and tolerance of condoning of fraud and corruption, particularly by politicians and those defined, as ‘politically exposed persons’ in the UN Convention Against Corruption. Would not the impoverishment of the abject poor through corruption tantamount to crimes against humanity?

The socio-political realities are not only borne out by the duplicitous conduct on the part of Sri Lanka, but also by the startling fact that the giant in the SAARC region, namely, India, having signed the UN Convention Against Corruption on 9 December 2005, ratified the same only on 1 May 2011, that too, due to the public agitation, with fast unto death being undertaken by public interest activists, thereby demonstrating the attitude of an unwilling bride, being coerced into marriage!

By 30 September 2011, 154 countries have signed and ratified the UN Convention Against Corruption. These countries are thereby obligated and bound to comply with and conform to the provisions contained in the Articles of the UN Convention Against Corruption. The Headings of Chapters and Articles of the UN Convention (see box) ex-facie disclose its scope and ambit, and a brief summary of which is set out below:

Chapter I of the Convention – ‘General Provisions,’ comprising Articles 1 to 4, sets out the purposes of the Convention, the use of terms therein, the scope of application of the Convention, whilst protecting the sovereignty of the countries, essentially to promote integrity, accountability and proper management of public affairs and public property, and to prevent and combat corruption, by facilitating international co-operation and mutual technical assistance for such purpose, including co-operation to recover assets siphoned out to other countries by corrupt persons of a country. Chapter II of the Convention – ‘Preventive Measures,’ comprising Articles 5 to 14, sets out preventive anti-corruption policies and practices, the setting up of preventive anti-corruption bodies, dealing with corruption in the public sector, with codes of conduct for public officials, procedures for public procurement and management of public finances, public reporting thereof, measures relating to the judiciary and prosecution services, dealing with corruption in the private sector, involving the participation of society and measures to prevent money-laundering.

Chapter III of the Convention – ‘Criminalisation and Law Enforcement,’ comprising Articles 15 to 59, mandates the making as criminal offences - bribery of national public officials, bribery of foreign public officials and officials of public international organisations, embezzlement, misappropriation or diversion of public property, trading influence, abuse of functions, illicit enrichment, bribery in the private sector, embezzlement of property in the private sector, laundering of proceeds of crime, concealment, obstruction of justice, including the participation in and attempting, with knowledge, intent and purpose, of any such offence set out in the Convention - defining the liability of persons for such offences and the criminal or non-criminal sanctions, including monetary sanctions, extending statute of limitations, where an offender has evaded the administration of justice.

Chapter IV of the Convention – ‘International Co-operation,’ comprising Articles 43 to 50, stipulates international co-operation procedures for extradition from a country, and for the transfer of sentenced persons, procedure for ‘mutual legal assistance’ for investigations and prosecutions, transfer of criminal proceedings, law enforcement co-operation, joint investigations, and for developing special investigating techniques, including electronic forms of ‘surveillance’ and ‘under-cover’ operations.

Chapter V of the Convention – ‘Assets Recovery,’ comprising Articles 51 to 59, provides for international co-operation of the widest measure, for the prevention and detection of transfer of proceeds of crime, including monitoring customers and the identity of beneficial owners of funds, conducting enhanced scrutiny of accounts sought or maintained by or on behalf of individuals, who are or have been entrusted with prominent public functions, and their family members and close associates, referred to as ‘politically exposed persons’ (PEPs).

Chapter VI of the Convention – ‘Technical Assistance and Information Exchange’, comprising Articles 60 to 62, provides for training and technical assistance, the collection, exchange and analysis of information on corruption, implementation of the Convention through economic development and technical assistance.

Chapter VII of the Convention – ‘Mechanism for Implementation’ comprising Articles 63 and 64, provides for an Annual Conference of the State Parties i.e. countries, who are parties to the UN Convention Against Corruption to further promote and review the actions taken to prevent and combat corruption, receiving inputs even from non-governmental organisations, with the Secretary General of the United Nations providing a Secretariat to facilitate the implementation of the Convention.

Chapter VIII of the Convention – ‘Final Provisions’ comprising Articles 65 to 71, provides for the implementation of the Convention, settlement of disputes, ratification and acceptation of the Convention and for making of any amendments thereto.

(The writer, F.C.A., F.C.M.A., C.M.A., C.F.E. and Member, International Association of Anti-Corruption Authorities, has authored a series of books on corruption, fraud, economic crime, governance, rule of law, based on real case studies, and recently released a book titled ‘To combat fraud & corruption – a cancerous menace, with mere rhetoric subverts UN Convention Against Corruption,’ postulating that corruption impoverishing the abject poor are crimes against humanity.)

Articles of the UN Convention Against Corruption

1. PREAMBLE

2. CHAPTER I – GENERAL PROVISIONS (Articles 1-4)

Article 1 Statement of Purpose

Article 2 Use of terms

Article 3 Scope of application

Article 4 Protection of sovereignty

3. CHAPTER II – PREVENTIVE MEASURES (Articles 5-14)

Article 5 Preventive anti-corruption policies and practices

Article 6 Preventive anti-corruption body or bodies

Article 7 Public sector

Article 8 Codes of conduct for public officials

Article 9 Public procurement and management of public finances

Article 10 Public reporting

Article 11 Measures relating to the judiciary and prosecution services

Article 12 Private sector

Article 13 Participation of society

Article 14 Measures to prevent money-laundering

4. CHAPTER III – CRIMINALISATION AND LAW ENFORCEMENT (Articles 15-42)

Article 15 Bribery of national public officials

Article 16 Bribery of foreign public officials and officials of public International organisations

Article 17 Embezzlement, misappropriation or other diversion of property by a public official

Article 18 Trading in influence

Article 19 Abuse of functions

Article 20 Illicit enrichment

Article 21 Bribery in the private sector

Article 22 Embezzlement of property in the private sector

Article 23 Laundering of proceeds of crime

Article 24 Concealment

Article 25 Obstruction of justice

Article 26 Liability of legal persons

Article 27 Participation and attempt

Article 28 Knowledge, intent and purpose as elements of an offence

Article 29 Statute of limitations

Article 30 Prosecution, adjudication and sanctions

Article 31 Freezing, seizure and confiscation

Article 32 Protection of witnesses, experts and victims

Article 33 Protection of reporting persons

Article 34 Consequences of acts of corruption

Article 35 Compensation for damage

Article 36 Specialised authorities

Article 37 Cooperation with law enforcement authorities

Article 38 Cooperation between national authorities

Article 39 Cooperation between national authorities and the private sector

Article 40 Bank secrecy

Article 41 Criminal record

Article 42 Jurisdiction

5. CHAPTER IV – INTERNATIONAL COOPERATION (Articles 43-50)

Article 43 International cooperation

Article 44 Extradition

Article 45 Transfer of sentenced persons

Article 46 Mutual legal assistance

Article 47 Transfer of criminal proceedings

Article 48 Law enforcement cooperation

Article 49 Joint investigations

Article 50 Special investigative techniques

6. CHAPTER V – ASSET RECOVERY (Articles 51-59)

Article 51 General provision

Article 52 Prevention and detection of transfers of proceeds of crime

Article 53 Measures for direct recovery of property

Article 54 Mechanisms for recovery of property through international cooperation in confiscation

Article 55 International cooperation for purposes of confiscation

Article 56 Special cooperation

Article 57 Return and disposal of assets

Article 58 Financial intelligence unit

Article 59 Bilateral and multilateral agreements and arrangements

CHAPTER VI – TECHNICAL ASSISTANCE AND INFORMATION EXCHANGE (Articles 60-62)

Article 60 Training and technical assistance

Article 61 Collection, exchange and analysis of information on corruption

Article 62 Other measures: implementation of the Convention through economic development and technical assistance

CHAPTER VII – MECHANISMS FOR IMPLEMENTATION (Articles 63-64)

Article 63 Conference of the States Parties to the Convention

Article 64 Secretariat

CHAPTER VIII – FINAL PROVISIONS (Articles 65-71)

Article 65 Implementation of the Convention

Article 66 Settlement of disputes

Article 67 Signature, ratification, acceptance, approval and accession

Article 68 Entry into force

Article 69 Amendment

Article 70 Denunciation

Article 71 Depositary and languages