LONDA ESADZE

UNCAC Civil Society CoalitionTransnational Crime and Corruption Center (TraCCC),

Anti-Corruption Mentor, UNODC

Danger of CorruptionIn 1993, when Luciano Violante, then President of the Italian Chamber of Deputies,

was the Chairman of the Parliamentary Anti-Mafia Committee, he asked a State witness for information on the investments and money-laundering techniques used by his organization.

� “He replied, ‘If you have some money to invest, what do you do?’� “I answered, ‘I would ask an expert for advice.’� “To which he replied, ‘And so do we. If investment proves sound what do you do?’� “‘I go back to that same expert,’ was my reply.� “‘Exactly like us. And if it turns out to be a bad investment, what do you do?’� “‘I look for another expert, and go to someone else.’� “‘So do we. Except that we first kill the previous expert and make sure the second

one knows what we’ve done. That’s the difference between you and us.’”But the really clever ones do not murder. Murder may remove an obstaclebut it makes a lot of noise. Corruption is silent and wins an accomplice.That’s why it is more danger!

Damage of Corruption

Cost of corruption exceeds by far the damage caused by any

other single crime

• World Bank – More than 1 trillion US$ is paid in bribes a year

• Asian Development Bank – Cost of corruption = up to 17% of GDP

• The harm exceeds the proceeds –US$ 1 bribes = US$ 1.7 damage

Corruption have cost Arab countries

nearly $1trillionThe losses accounted for nearly a third of the total

income earned by the Arab countries between 1950 and 2000, these funds could have increased the citizen’s income by nearly $200 a year - said the Arab Anti-Corruption Organization (AACO)

Corruption is like octopus, affects:

Human Rights

Democracy

Rule of Law

Markets

Quality of Life

Human Security

Sustainable

Development

CORRUPTION

Corruption scenarios: where do we stand?� There is no totally corruption free country.� In very corrupt countries corruption encompass all forms of illegal

exchanges by high or/and low officials, and nepotism at all levels of the state structure. “Patron-client” relations and informal networks create vertical, interrelated corruption pyramids. Corruption is very well structured from the top down and between various state agencies. Society is essentially divided into a few wealthy entrepreneurs with close contacts to state agencies and the higher echelon of public officials, on one hand, and common citizens, on the other. For the first group the rule of law does not apply, for the second group – the rule of law doesn’t apply either. Thus corruption is as a part of culture and in some cases only way for survival..

� In “partially corrupted” countries we are facing transformation from “petty corruption” to “grand (elite) corruption”. Petty corruption/bribery in many citizen-Government interactions are eliminated or reduced, but corruption has become more sophisticated and latent and has moved to the spheres where big money and power rest: budgeting, special funds, procurement, privatization…

� Relatively corruption free countries are concerned on corruption and suspicious transactions in the private sector.

Current trends of fighting corruption in

transition countries

There are some specific aspects and trends of corruption characterized for countries in transition in general:

� Systemic Network of Corruption Pyramids� Patron-client relationships, nepotism and cronyism� Horizontal and vertical structures of corruption in Public

sector� Reducing petty corruption/bribery in many citizen-

Government interactions, but increasing grand corruption� Judiciary� Lack of transparency and communication with the public

in explaining reforms

Dilemma: “Anti-Corruption” or Democracy?

� Violations of Human Rights and principles of Democracy are often performed under “anti-corruption slogans”.

� “Anti-corruption” serves as main justification for many institutional failures

� Highly-publicized fight against corruption is politically motivated and is used to strengthen control over all sectors, and monopolize power.

� Selective justice and double standards� Despite of relatively well-developed framework of laws aimed at

preventing conflicts of interest among public officials promotion in civil service remains plagued with nepotism and cronyism.

� Anti-corruption speculations should not become as the populist, legitimising messages of new leaderships regimes worldwide

� it is very important to study the relationship between foreign assistance and domestic corruption and ensure that “Donor Sponsored Anti-Corruption” not become commercialized industry.

The Development of International AC Standards before the UNCAC:

Conventions

� 1996: The first regional convention, the Inter-American Convention againstCorruption, is adopted.

� 1997: The European Union Convention on the fight against corruption involving officials of the European Communities or officials of Member States

� 1997: The OECD Convention against Bribery of Foreign Public Officials isadopted.

� 1998-1999: The Council of Europe produces two anti-corruption treaties, theCriminal Law and the Civil Law Conventions on Corruption.

� 2000: The UN Convention against Transnational Organized Crime is adopted.� 2000: recognizing the need for a global convention focused only on corruption,

the UN General Assembly authorizes an ad-hoc group to negotiate a “broad andeffective” treaty that takes a “comprehensive and multidisciplinary” approach tothe problem.

� 2003: The African Union Convention on Preventing and Combating Corruption is adopted in Maputo,Mozambique.

� Two further instruments in the fight against corruption in Africa are the Southern Africa Development Community Protocol against Corruption (SADC Protocol) and the Economic Community of West African States Protocol on the Fight against Corruption (ECOWAS Protocol).

UNCAC is both a legal and political

manifestation of international consensus

UNCAC ratification status�2003: The UN Convention against

Corruption is adopted.�2005: The UN Convention against

Corruption comes into force after its 30th ratification in December.

�Signatories : 140 �Ratifications/Accessions : 150

UNCAC highlights� covers all regions;� tackles the responsibilities of developed, as well as developing countries;� focuses on the prevention of corruption, not just its criminalisation;� covers private as well as public sector corruption: bribe-payers and

bribe-takers; � outlaws the payment of bribes to foreign public officials, going beyond

a similar prohibition in the OECD Convention and covering new trading powers such as India and China;

� identifies as a priority the return of stolen assets to their country of origin and requires the prevention and punishment of corruption-related money laundering;

� strengthens transparency, accountability and participation in public decision-making;

� calls for financial and technical assistance to developing countries for UNCAC implementation.

Structure of UNCAC: consists of 8 chapters

and 71 provisions

Major Achievements� The diversity of preventive measures, criminalization of

corruption in both public and private sectors, broadening of the concept of liability of legal persons, extension of the statute of limitations on corruption crimes, enhancement of the role of civil society and access to information, reinforcement of anti-money laundering measures, and encouragement of mutual legal assistance among states.

� The biggest UNCAC innovation has to do with asset recovery, which consists of measures for direct recovery of property, international cooperation for purposes of confiscation, and return and disposal of assets.

Some Weaknesses and Fears � Now the review mechanisms are in place, but it does not consider full

publication of country reports and has only made non-mandatory provisions for governments to receive input from civil society, instead of ensuring that these inputs are given to independent reviewers.

� A mixture of mandatory and discretionary provisions.� As with many international agreements, the devil is in the details: the

language is often notably vague in many areas and the parties are often given great discretion in how (and whether) to apply particular provisions. Treat of arbitrary interpretation by the state parties.

� Therefore the Convention should not be used as a political tool: it is important that State Parties avoid using it principally to attack political opponents especially in less democratic countries (e.g. selective prosecution or Article 7(3), dealing with campaign finance and transparency of the funding of political parties. The possibility of reasonably limited, but still anonymous ontributions to political parties financing from private persons often is only way for survival for the opposition parties in authoritarian or semi-authoritarian regimes, as private legal or/and physical persons are afraid to provide them open financial assistance under authoritarian rules).

CoSP 3: adoption of UNCAC Review (Doha)

Mechanism

� On November 13, 2009 the III Conference of State Parties to the UNCAC in Doha, Qatar has finally agreed a review mechanism. Under the new mechanism, all States will be monitored every five years to see how they are living up to their obligations. Findings, based on self-assessments and peer reviews by experts, will be compiled in country review reports. The executive summary of these reports will be made public. The country reports will identify gaps in national anti-corruption laws and practices.

UNCAC Review: Good and

Bad News for SCOs� The resolution adopting the review mechanism

encouraged governments to include civil society and private sector inputs to their self-assessments and left it optional for governments to decide whether to allow a country visit and whether to involve civil society and the private sector to make inputs during the country visits. In July 2010 the Implementation Review Group (IRG) that oversees the review mechanism met for the first time in Vienna and adopted guidelines for governmental experts and the secretariat, which to our disappointment do not reference these various options.

CSO participation & transparency in the UNCAC review process

� Transparency, accountability and civil society participation will be key to the success of the UNCAC review process.

� If your country has not ratified the UNCAC, you can start by promoting UNCAC ratification and implementation. Wherever possible, work together with other national CSOs and the private sector.

� If your country has ratified the UNCAC, you can participate in and strengthen the review process by monitoring the process and advocating for the full implementation of the Convention in your country.

Monitor your country's compliance with its

obligations under Chapters III and IV of the

UNCAC

Civil society input is valuable at many stages of the review, including during:

� the country self-assessment phase

� the country visit by the review teams

� the publication of official reports or executive summaries

� implementation review group meeting

� conference of states parties

CSO participation & transparency in the UNCAC review process

Why get involved in UNCAC review?

� Build public awareness of UNCAC obligations

� Communicate expectations about performance

� Enhance accuracy of assessment

� Demonstrate role of civil society in anti-corruption

� Use official platform for outreach to Government,

National public, International community

How get involved in UNCAC review?

Process issues: Advocate and monitor

� Transparency

� CSO participation

� Content issues: Monitor and advocate

� Access to information

� Implementation of laws and regulations

� Enforcement of laws and regulations

Process issues Phase 1Phase 1:

� Government appointment of focal point

� Government self-assessment

Key advocacy goals

� Access to focal point

� Consultation on self-assessment

� Prompt publication of self-assessment

Recommended actions� Inform government that you will publish a report on

process� Advocate access, consultation, prompt publication� Prepare inputs for self-assessment phase

Process issues Phase 2Phase 2:

� Peer review and dialogue phaseKey advocacy goals� Country visit

� CSO inputs to review team

Recommended actions

� Provide information on other governments that allow

country visits and CSO inputs, including in other review

systems

� Prepare report on implementation and submit to

government & review team

Process issues Phase 3Phase 3:

� Publication of results of review: executive summary or full report

Key advocacy goals� Publication of full report

Recommended actions

� Prepare a CSO report on the review process and

on country compliance with UNCAC and publish it

online

� Prepare CSO analysis of published review results

The UNCAC gaps analysis - What to do

� All national legislation directly or marginally dealing with anti-corruption issues has to be studied, analyzed and benchmarked against the provisions of the UNCAC; gaps analyzed and legislative packages for further amendments and changes have to be developed.

� The product of these reviews is a matrix and a narrative report containing the analysis and more importantly a set of recommendations on how to fully ensure compliance with the Convention.

UNCAC Key Articles for CSOs

Article 10 requires States parties to take measures to

enhance transparency in their public administration relative to its organization, functioning, decision-making processes and/or other aspects, in accordance with the fundamental principles of their law.

UNCAC Key Articles for CSOs

Mandatory requirement: Participation of society

� Until the UNCAC other anti-corruption standards only partially saw a role for NGOs in the prevention of and the fight against corruption and in raising public awareness, however they did not provide further details on how these tasks can be carried out to achieve maximum impact. UNCAC made a serious impact on this situation.

� Art 13(1) states that: Each State Party shall take appropriate measures to promote the active participation of individuals and groups outside the public sector, such as civil society, non-governmental organizations and community-based organizations, in the prevention of and the fight against corruption and to raise public awareness regarding the existence, causes and gravity of and the threat posed by corruption.

Preventive anti-corruption policies and practices

� Article 5, paragraph 4, mandates international collaboration aimed at the prevention of corruption. For this purpose, States parties may wish to consider participating in international programmes and projects.

Transparency measures and systems in the

public sector: Articles 7 to 9

� Article 7 - Public sector

� Article 8 - Codes of conduct for public officials (Mandatory)

� Article 9 - Public procurement and management of public finances (Mandatory, also included in the self-assessment check-list)

Transparency measures and systems in the public

sector: Mandatory requirements

Article 8: to promote integrity in public administration and to synchronize systems, measures and mechanisms introduced in the course of implementing the article with the relevant initiatives of regional, interregional and multilateral organizations.

� Introduction of codes of conduct for the performance of public functions

Article 8:Codes of Conduct, Conflict of interestsThe most important instruments to prevent and avoid conflict of interest are:� Restrictions on ancillary employment;� Declaration of personal income;� Declaration of family income; Declaration of personal assets;� Declaration of family assets;� Declaration of gifts;� Security and control of access to internal information;� Declaration of private interests relevant to the management of contracts;� Declaration of private interests relevant to decision-making;� Declaration of private interests relevant to participation in preparing or giving policy advice;� Public disclosure of declarations of income and assets;� Restrictions and control of post-employment business or NGO activities;� Restrictions and control of gifts and other forms of benefits;� Restrictions and control of external concurrent appointments (e.g. with an NGO, politicalorganisation, or government-owned corporation);� Recusal and routine withdrawal of public officials from public duty when participation in ameeting or making a particular decision would place them in a position of conflict);� Personal and family restrictions on property titles of private companies;

Transparency measures and systems in the public

sector: Optional requirements

� Article 7 (Public Sector), paragraph 1: to adopt, maintain and strengthen systems for the recruitment, hiring, retention, promotion and retirement of civil servants and other non-elected public officials. These systems must: (a) Be based on principles of efficiency, transparency and objective criteria such as merit, equity and aptitude; (b) Include adequate procedures for the selection and training of individuals for public positions considered especially vulnerable to corruption and the rotation, where appropriate, of such individuals to other positions; (c) Promote adequate remuneration and equitable pay scales, taking into account the level of economic development of the State party; (d) Promote education and training programmes

Transparency measures and systems in the

public sector: Optional requirements

Article 7

� States parties endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest

� to establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, as a minimum:

(a) Their outside activities;

(b) Employment;

(c) Investments;

� (d) Assets; and

(e) Substantial gifts or benefits; from which a conflict of interest may result with respect to their functions as public officials (para. 5).

Transparency measures and systems in the

public sector: Optional requirements

Article 7

� Recruitment and Hiring procedures of public servants

� Promotion in Public Service: Staff rotation can be used a corruption prevention measure, especially, for those positions that are vulnerable to corruption, as it prevents the institutionalization of corrupt activities.

� Socio-Economic Protections of Public Servants

� Transparency in Campaign Financing: to enhance transparency in the funding of candidature for elected public office and the funding of political parties.

The UNCAC Coalition: Who we are� The UNCAC Coalition is a global network of over240

civil society organisations (CSOs) in over 100 countries, committed to promoting the ratification, implementation and monitoring of the UN Convention against Corruption (UNCAC). Established in August 2006, it mobilises civil society action for UNCAC at international, regional and national levels.

The UNCAC Coalition: Who we are� The UNCAC's framework is so comprehensive that it is relevant

for a wide range of CSOs. Consequently, the Coalition includes international, regional and national groups working in the areas of human rights, labour rights, governance, economic development, environment and private sector accountability. The member groups include AccessInfoEurope, AfriCOG, Basel Institute on Governance, BRAC University Institute of Governance, Christian Aid, Commonwealth Human Rights Initiative, GAATW, Global Witness, Institute for Security Studies in Africa, PSI Link, Tax Justice Network, Tearfund, Transparency International, UNICORN and many many more. The secretariat for the Coalition is provided by Transparency International, one of its founding members.

The UNCAC Coalition: What we doThe Coalition engages in joint action around common positions on

the UNCAC, facilitates the exchange of information among members, and supports national civil society efforts to promote the UNCAC. Coalition members share views via the Coalition website and internet mailing list and ad hoc working groups.

The Coalition's primary campaign objective during 2006 – 2009 was to secure an effective, transparent and participatory monitoring mechanism for the UNCAC. To this end, members engaged in joint advocacy ahead of and during key intergovernmental meetings. This phase ended with the adoption, in November 2009, of an UNCAC review mechanism that started operation in July 2010. The Coalition now seeks to ensure that civil society groups can contribute to the review process and to support them in making quality submissions. It also aims to gain government agreement to publish review reports for public scrutiny.

The UNCAC Coalition: What we do

� The Coalition also sets advocacy targets in relation to specific UNCAC-related topics, such as access to information, asset recovery and protection of whistleblowers and anti-corruption activists.

� A particular focus for the Coalition will remain the sessions of the UNCAC Conferences of States Parties (CoSP)—the next session will be in Morocco in October 2011. Coalition members attend these intergovernmental meetings as observers. They meet with government delegates, submit statements, publish a newsletter, produce blogs, press releases and hold press briefings and much more.

Why joint action is important� Effective anti-corruption work demands efforts not

only from governments, but also from civil society organisations, the private sector and the greater public. The need for participation of civil society and the importance of access to information are explicitly recognised in Article 13 of the UNCAC.

� Without pressure from civil society groups, government anti-corruption commitments may remain mere window dressing. Without coordinated global action by a wide range of civil society groups, the UNCAC may not achieve its promise.

Join us� An international member organisation, defined as a civil

society organisation working in three or more countries or with affiliates in three or more countries.

� A member organisation, defined as a civil society organisation other than international, with any national affiliates of an international member considered separate from that member.

� An individual affiliate member, defined as a natural person with no affiliation to a member organisation. Individual members require an endorsement letter from an existing Coalition member to support their application.

Apply: http://www.uncaccoalition.org/en/about-us/join-us.html

Corruption is dead, Long Live Corruption!(?)