COMMONWEALTH SECRETARIAT & CHATHAM HOUSE ANTI-CORRUPTION CONFERENCE THE UN CONVENTION AGAINST CORRUPTION IMPLEMENTATION & ENFORCEMENT: MEETING THE CHALLENGES CHATHAM HOUSE · LONDON · 24 TO 25 APRIL 2006 Commonwealth Secretariat COMMONWEALTH SECRETARIAT & CHATHAM HOUSE ANTI-CORRUPTION CONFERENCE THE UN CONVENTION AGAINST CORRUPTION IMPLEMENTATION & ENFORCEMENT: MEETING THE CHALLENGES CHATHAM HOUSE · LONDON · 24 TO 25 APRIL 2006 Commonwealth Secretariat EXECUTIVE SUMMARY1 The United Nations Convention Against Corruption (UNCAC) came into force on 14 December 2005 and as prescribed by this convention, the Conference of State Parties will be held later this year in order to promote and review implementation. The convening of this conference was organised with a view to taking forward the imple- mentation of UNCAC among those States that have signed to it. The presentations focused on key topics with time allocated for discussion on the issues arising out of those presentations. The objectives of the conference included: G addressing the problems faced in monitoring implementation by smaller, developing States by identifying those problems and highlighting the lessons from developed States; G encouraging effective international cooperation; G assisting participants to identify training and technical assistance needs; and G for Commonwealth States to take forward the Recommendations of the Commonwealth Expert Working Group on Asset Repatriation as mandated by the Heads of Government at the 2005 Commonwealth Heads of Government Meeting (CHOGM). Those Recommendations include: putting in place comprehensive legis- lation and procedures for both conviction and non conviction-based confiscation, MLA on the basis of the Harare Scheme and direct enforcement of restraint and con- fiscation in response to a foreign request. OVERVIEW OF THE SESSIONS SESSION ONE UN CONVENTION & COMMONWEALTH INITIATIVES Speakers: Martin Polaine & Stuart Gilman G Disappointment was expressed at the number of discretionary provisions within the preventive chapter of UNCAC. The importance of implementing preventive measures as part of any anti-corruption strategy was emphasised. G Judicial integrity is a key component to any effective anti-corruption strategy. Article 11 (which deals with measures to strengthen judicial integrity) lacks detail and it would therefore be prudent to consider a range of other initiatives such as the Commonwealth Framework Principles, the Limassol Recommendations on Combating Corruption within the Judiciary and the Nairobi Communique. 5 G Asset recovery is a fundamental principle of UNCAC. This is an area that requires both international cooperation and a consistent approach. It also requires sufficient resources and demonstrable political will. The importance of international coopera- tion in effecting asset repatriation and confiscation is addressed in Articles 54 to 57. G The Commonwealth Expert Working Group on Asset Repatriation recognised that there can be impediments to the successful use of conviction-based confiscation and that therefore in some instances, a complimentary, non-conviction based regime will be useful in pursuing the proceeds of crime. G The preferred option, particularly for small and developing States with limited resources, is a system of direct enforcement where foreign orders for restraint/seizure and confiscation may be registered and enforced as if issued in the requested State. G The issue of immunity is a problematic area and current Heads of State/Government still enjoy immunities which are absolute while they remain in office. Immunity from prosecution is addressed in Article 30(2) (a discretionary provision). The Commonwealth Expert Working Group on Asset Repatriation recommended that Heads of Government should commit themselves to removing immunities. However, they also recognised that some States may be at certain stages of transition and there- fore may have to have recourse to limited immunity for limited periods of time. G Any effective anti-corruption strategy must be transparent and those agencies involved in combating corruption must have legal and political independence. G UNCAC does not require States to establish anti-corruption commissions. However, Article 6 calls on States to ensure that a body or bodies are established to prevent cor- ruption via certain means. While it is acknowledged that there is a need to have independent specialist anti-corruption bodies; a freestanding body may not be appro- priate for all States. Attaching an anti-corruption unit to an existing ministry or department may be more appropriate for some States. G It is important to have realistic budgetary resources and allocations when establishing anti-corruption agencies and when developing policy. SESSION TWO MONITORING & MEASUREMENT Speakers: Graham Rodmell, Nicola Bonnuci & Dr. Maria Gavouneli G The absence of monitoring provisions within UNCAC was noted in this session and possible monitoring mechanisms were explored. There was an expression of hope that when the Conference of State Parties meet later this year, those participating will con- sider putting into effect supplemental review mechanisms to assess the measures taken by State Parties to implement the Convention. To that end, it was suggested 6 that the practical experiences of existing monitoring mechanisms such as those adopted by the OECD and GRECO be considered by the State Parties. G Any agreement to provide an adequate monitoring process will require a commit- ment from developed States to lend both technical and financial support to developing States. G It was suggested by Nicola Bonnuci that the success of monitoring under the OECD Convention can be largely attributed to a strong political will from the key players coupled with adequate financial and human resources. When considering different monitoring options, it will be important that any chosen mechanism responds to the political and economic diversity of those States that have signed to UNCAC. G Current monitoring mechanisms include both instrument based and non-instrument based mechanisms. The latter can offer a more informal and less costly type of mon- itoring and can include, for example, the use of surveys and/or questionnaires. However, if such questionnaires/surveys are designed to meet regional standards, it will be important that an underlying consistent standard is in place in order to avoid undermining the objectives of UNCAC. G The engagement of civil society in the monitoring process is important and permits dialogue and public accountability thereby promoting the transparency and credibil- ity of the process. G UNCAC lists a series of specific criminal offences and addresses corrupt activity by public officials. However, some of the provisions merely require States to consider establishing offences. Disappointment has been expressed that the offences of ‘trading in influence’ and ‘illicit enrichment’ have been couched in discretionary terms. SESSION THREE TAKING IMPLEMENTATION FORWARD: ANTI-CORRUPTION STRATEGIES Speakers: Datuk Seri Zulkipli Bin Mat Noor, Dr. Enery Quinones & Ken Mwige G Datuk Seri Zulkipli Bin Mat Noor and Ken Mwige discussed the strategies adopted by the Malaysian and Kenyan anti-corruption agencies. The importance of implement- ing preventive measures was stressed by both speakers. The inclusion of education in any effective strategy was noted as being of particular importance, with Mr. Mwige suggesting that anti-corruption awareness should be inculcated into the national psyche at an early age by making it an examinable subject at school. G Further, promoting anti-corruption awareness should continue through into working life; not only at the point where an individual joins an organisation, but especially when promotions or changes of position occur. G Malaysia’s anti-corruption strategy forms an integral part of the country’s general 7 policy objectives, which are embodied in it’s concept of ‘Vision 2020.’ There are two pillars to Anti-Corruption Agency’s (ACA) strategy; education and prevention. There is a specific anti-corruption law that empowers the ACA to investigate, carry out selec- tions and engage in community education. Further the ACA have powers to carry out selections and engage in community education, in addition to inspecting public offices and agencies to determine and identify areas that are likely to breed opportu- nities for corruption. G In Malaysia, every agency must have in place job rotation policies that rotate employ- ees every five years. Further, protection for whistleblowers and witnesses is guaranteed in the provisions of the Anti-Corruption Act. G Dr. Enery Quinones’s presentation focused on how the EBRD promotes integrity and business ethics in the projects they finance. G Dr. Quinones suggested that working towards harmonising investigative guidelines across all the multi-lateral development banks will facilitate more effective cross debarment and/or lend support for each other’s enforcement decisions. She conclud- ed by stating that a co-ordination of efforts by the banks would enhance the work done by individual banks, with the desired longer-term objective being to focus on broad-based prevention and the imposing of sanctions. SESSION FOUR A PUBLIC SERVANTS: ANTI-CORRUPTION PREVENTION & DETECTION Speakers: Marie-Noelle Ferrieux-Patterson, Jean Au Yeung and Muhammad Akram Sheikh G This session focused on the experiences of three different States in combating corrup- tion within the public sector. G Marie-Noelle