Star
Law analysis
UN
Convention against corruption: A gallant move for corruption
free world
Md.
Saiful Karim
Corruption
is a dangerous epidemic that has wide-ranging and horrific
adverse effects on societies and states.ÊIt undermines
democracy, good governance and the rule of law and leads
to violations of human rights, hinders the process of
sustainable development, erodes the quality of life and
allows widespread exploitation and insecurity in the life
of people specially people of the marginalised segment
of the society.ÊThis evil phenomenon is very much
common in all countries developed and least developed,
big and small. There was a long standing demand from global
community for a balanced and pragmatic international instrument
which will introduce a comprehensive set of standards,
measures and rules that all countries could apply in order
to strengthen their legal and regulatory regimes to fight
corruption.Ê For satisfying this long-standing demand
of world community, United Nations General Assembly unanimously
adopted The United Nations Convention against Corruption
on 31 October 2003. It was open to all States for signature
from 9 to 11 December 2003 in a high-level political Signing
Conference in Merida, Mexico, and thereafter it will remain
open for signature at United Nations Headquarters in New
York until 9 December 2005. The Convention shall also
be open for signature by regional economic integration
organisations providing that at least one Member State
of such organisation has signed this Convention. The Convention
requires ratification by 30 countries for its entry into
force. As of January 17, 2005 thirteen states have ratified
the Convention. These include: Algeria, Benin, El Salvador,
Kenya, Madagascar, Mexico, Namibia, Peru, Romania, Sierra
Leone, South Africa, Sri Lanka and Uganda. Unfortunately
Bangladesh is yet to sign this Convention.
Purpose
of the Convention
According to Article 1 of the Convention the basic purposes
of this Convention are:
*To promote and strengthen measures to prevent and combat
corruption more efficiently and effectively;
*To promote, facilitate and support international co-operation
and technical assistance in the prevention of and fight
against corruption, including in asset recovery;
*To promote integrity, accountability and proper management
of public affairs and public property.
Salient
features of the Convention
The Convention consists of eight chapters and seventy-one
articles. It covers topics that include public procurement,
bribery, illicit enrichment, embezzlement, misappropriation,
money-laundering, protecting reporting persons (including
witnesses, experts, victims), freezing of assets and co-operation
between States.
Preventive
measures
Corruption can be prosecuted after the fact, but first
and foremost, it requires prevention. Under Article 5
of the Convention, each State Party shall, in accordance
with the fundamental principles of its legal system, develop
and implement or maintain effective, co-ordinated anti-corruption
policies that promote the participation of society and
reflect the principles of the rule of law, proper management
of public affairs and public property, integrity, transparency
and accountability. Chapter II of the Convention comprehensively
deals with the preventive measures of corruption. This
chapter includes provisions for preventive anti-corruption
policies, practices, and establishment of preventive anti-corruption
body or bodies. It also includes provisions for efficiency,
transparency, codes of conduct and merit based recruitment
of public servant. This chapter also formulates the guidelines
for transparency and accountability in matters of public
services and public finance. It also elaborates specific
requirements for the prevention of corruption, especially
critical areas of the public sector, such as the judiciary
and public procurement. The Convention calls on countries
to promote actively the involvement of non-governmental
and community-based organisations, as well as other elements
of civil society, and to raise public awareness against
corruption. Apart from these this chapter provides specific
measures to prevent money laundering.
Criminalisation
and law enforcement
Under chapter III of the Convention each State Party is
required to adopt such legislative and other measures
as may be necessary to define criminal offences to cover
a wide range of dimensions of corruption including inter
alia not only basic forms of corruption, such as bribery,
the embezzlement of public funds, but also trading in
influence and the concealment and "laundering"
of the proceeds of corruption.
International
co-operation
Chapter IV of the Convention is dedicated for international
co-operation. States Parties shall where appropriate and
consistent with their domestic legal system, consider
assisting each other in investigations of and proceedings
in civil and administrative matters relating to corruption.
Parties are bound to render specific forms of mutual legal
assistance in gathering and transferring evidence for
use in court, to extradite offenders and transfer of sentenced
persons. State parties are also required to undertake
measures that will support the tracing, freezing, seizure
and confiscation of the proceeds of corruption. Article
43 says "In matters of international co-operation,
whenever dual criminality is considered a requirement,
it shall be deemed fulfilled irrespective of whether the
laws of the requested State Party place the offence within
the same category of offence or denominate the offence
by the same terminology as the requesting State Party,
if the conduct underlying the offence for which assistance
is sought is a criminal offence under the laws of both
States Parties".
Asset
recovery
Chapter V of the Convention declares explicitly asset-recovery
as "a fundamental principle of the Convention".
This is an important issue for many developing countries
where high-level corruption has plundered the national
wealth, and where resources are badly needed for reconstruction
and the development of states. This chapter incorporates
provisions for prevention and detection of transfers of
illicitly acquired assets, the recovery of property, and
the return and disposition of assets. According to Transparency
International "The UN Convention also raises hopes
that funds transferred abroad by corrupt leaders (most
famously, charges have been made against Abacha, Taylor,
Mobutu, Fujimori, Bhutto and Suharto) can be brought back
to the countries from where they were looted and used
for the well-being of the people. The Convention is groundbreaking
in including for the first time in an international legal
instrument the concept, description and processes for
international co-operation in the recovery of such stolen
assets. The Convention also establishes the right of people
who have suffered damage from corruption to initiate legal
proceedings against responsible parties."
Technical
assistance and information exchange
Chapter VI of the Convention outlines specific norms for
initiation, development or improvement of specific training
programmes for the personnel responsible for preventing
and combating corruption. As per this chapter States Parties
shall take measures conducive to the optimal implementation
of this Convention to the extent possible, through international
co-operation, taking into account the negative effects
of corruption on society in general, in particular on
sustainable development. This international co-operation
will be ensured through collection, exchange and analysis
of information on corruption. Besides this states will
be bound to take initiative for implementation of the
Convention through economic development and technical
assistance.
Concluding
remarks
Adoption of new international convention is not and in
no way can be a panacea; the main challenge will be the
proper implementation of this Convention. At present the
most important task for all concerned people of the world,
is to urge states to ratify the Convention as soon as
possible so that it becomes an active, legally binding
instrument.
Corruption,
poverty and human rights abuses are indivisibly interlinked
with each other. For fuller realisation of economic, social,
environmental and political rights, state should be open,
accountable and transparent. In this context I may venture
to conclude with some words of United Nations Secretary-General,
Kofi Annan, "Corruption hurts the poor disproportionatelyby
diverting funds intended for development, undermining
a government's ability to provide basic services, feeding
inequality and injustice, and discouraging foreign investment
and aid".
The
author is a lawyer with the Bangladesh Environmental Lawyers
Association (BELA).
Photo
: ADB
