Course corporation 1/ what is corruption ? 2/ why we need to fight corruption ? 3/ how we can fight corruption ?

4/ what are the international instruments to fight corruption ? 5/ what are the national instruments to fight corruption ?

Whats corruption ? The word Corruption has its origin in a Latin verb corruptus meaning to break. Literally, it means a broken object. In simple words, corruption means the misuse of entrusted power for private benefit. Conceptually, corruption is a form of behaviour which departs from ethics, morality, tradition, law and civic virtue. The term corruption has various definitions. The United Nations Manual on Anti-Corruption, the Transparency International, and the multilateral financial institutions like the World Bank and Asian Development Bank define corruption as, abuse of public office for private gains The National Anti Corruption Strategy (NACS) has defined corruption as a behaviour on the part of office holders in the public or private sector whereby they improperly and unlawfully enrich themselves and/or those close to them, or induce others to do so, by misusing the position in which they are placed. There are a lot discussions devoted to the understanding of corruption. Different authors express different approaches in defining corruption. The narrowest approach contains definition of corruption as use of public office for private gain The broad approach contains abuse of not only public office but private or commercial one too. Based on these approaches authors distinguish three big groups of corruption: political, personal and commercial. Types of corruption Bribery : an offer of money or favors to influence a public official Tradin influence/infeluence peddling : its the situation where a person is selling his/her influence over the decision process involving a third party Graft: requires that the official gains something it refers to favouring supporters for example with government emplyment Nepotism and cronyism : favouring relatives nepotism or personal friends cronyism of an official is a form of illegitimate private gain Embezzlemlment its outright thef of entrusted funds Kickbacks: it s an officials share of misappropriated funds allocated from his or her organization to an organization involved in corrupt bidding Unholy alliance : it is a coalition among seemingly antagonistic groups Causes of corruption a.Lack of effective Internal accountability mechanism b.Discretionary powers and their flagrant abuse by the public office holders c.Absence of and weakness of the watch-dog agencies d.Elected government's perpetual failure to develop proper ethical and business standards for the public and private sector e.Political leaders' incompetence and betrayal of public trust with penchant for selfenrichment

f.Lack of transparency in the government's decision-making process g.Lengthy and cumbersome procedures in the executive system h.Weaknesses in the judicial system i.Illiterate, apathetic or ignorant populace with inadequate discernment of.political choices j.Power of influential people k.Inadequate wage envelope

Consquences of corruption The menace of corruption has links to a multitude of

vices. Its roots are linked to injustice, mistrust, suspicion, extremism and terrorist activities. It creates a sense of insecurity, exacerbates poverty and adds to the misfortune of the vulnerable segments of the society. It also instills a sense of hopelessness and despondency and threatens the strength of good values which have been established over centuries of civilized struggle. (1) corruption lowers investment and retards economic growth to significant extent ; (2) it reduces the effectiveness of aid flows through the diversion of funds; (3) it leads to loss of tax revenue and to adverse budgetary consequences; (4) it leads to lower quality of infrastructure and public services

why we need to fight corruption ?

Introduction Corruption is a world-wide phenomenon that is multi-faceted. While it also exists in the private sector, corruption primarily involves government offcials. Hence, it is not surprising that corruption is labeled as endemic in all governments , where no region, and hardly any country, has been immune. Corruption is probably as old as government itself.Corruption affects almost all parts of society. Like a cancer, as argued by Amundsen, corruption eats into the cultural, political and economic fabric of society, and destroys the functioning of vital organs. The World Bank (WB) has identified corruption as the single greatest obstacle to economic and social development. It undermines development by distorting the rule of law and weakening the institutional foundation.Corruption, as the abuse of entrusted power for private gain, has its roots mostly in the financial field, thus, this explains why anti-corruption' measures rank high on the policy agenda of the World Bank and the United Nations as exemplified.Corruption has also attracted the attention of researchers in the academic arena; not only in economy, but also in sociology, political science, law, etc. Research in this area includes detailed descriptions of corruption scandals, case studies, and cross-country studies. It also ranges from theoretical models to empirical investigations.In fact, Corruption has been around for a long time and will be around in the future unless governments can figure out effective ways to combat and to fight it. This is not going to be easy, since before taking such step it is worthy to specify the reasons behind the negative attitude towards every sign of any breach of trust. An equally significant aspect of this issue is that it allows us to determine the nature of this phenomenon and hence, to draw practical and realistic guidelines to be able to fight it. So why do we have to fight corruption? To clearly answer this question, we should focus, firstly, on the rationale for fighting corruption (I) then, on highlighting its hazards and risks, secondly (II).

1- The rationale for fighting corruption : In order to detremine the rationale for the phenomenon of corruption, it is important to evoke, at first, its definition. Defining corruption : different perspectives V. standard definition Understanding the concept of corruption presupposes that one should have a clear dichotomy of what it entails and what constitutes it in the simplest term. There is no single accepted definition for the term corruption because what may seem corrupt in one society may not necessarily be perceived as such in another. Though there have been different attempts to define it, there is no precise, clear definition that can be applied to all forms, types and degrees.According to Carl Friedrich, Corruption is a kind of behaviour which deviates from the norm actually prevalent or behaved to prevail in a given context, such as the political. It is deviant behaviour associated with a particular motivation, namely that of private gain at public expense. Another commonly used definition is the one given by Leslie Palmier, according to it, corruption is seen as the use of public office for private advantage. However, the definition of corruption given by TRANSPARENCY INTERNATIONAL seems to be the most popular and simplest one, it defineses it as the abuse of entrusted power for private gain. de facto, Corruption is often described as either grand or petty (petty corruption power in daily situations (eg. the traffic police who takes money every day from taxi drivers in return for not harassing them further). It usually involves modest sums of money in any given exchange. However, endemic petty corruption can result in great costs and can place serious stress on the functioning of state systems, in a way comparable to grand corruption. It is important to note the nuances in trying to categorize different manifestations of corruption. There is not a clear division between where petty corruption ends and grand corruption begins: lowly officials who demand illegal payments from citizens may be doing so because they have to pay a cut of their salaries to their managers, who pay a cut to their superiors, stretching all the way up to the most senior state officials. It includes acts of bribery, embezzlement, nepotism or state capture. It is often associated with and reinforced by other illegal practices, such as bid rigging, fraud or money laundering.is also described as administrative). Grand corruption typically takes place at the top levels of the public sphere and the senior management levels of business, where policies and rules are formulated and executive decisions are made. It also often involves large sums of money (political corruption is another common term that may be used to refer to grand corruption more generally or specifically to the negative influence of money in political campaigns and political parties).Small scale, administrative or petty corruption is the everyday corruption that takes place at the implementation end of politics, where public officials meet the public. Petty corruption is most commonly found as bribery in connection with the implementation of existing laws, rules and regulations, or in abuse of At the same time, if we asked the question of what does the corruption look like ? we can say that it could be the multinational company that pays a bribe to win the public contract to build the local highway, despite proposing a sub-standard offer. It could be the politician redirecting public investments to his hometown rather than to the region most in need. It could be the public official

embezzling funds for school renovations to build his private villa. It could be the manager recruiting an ill-suited friend for a high-level position. Or, it could be the local official demanding bribes from ordinary citizens to get access to a new water pipe. By taking those many forms that make it difficult to grasp, corruption invokes legislatures all over the world, as in Tunisia, to provide a legal framework and to fully invest in the fight against it.On a global scale, the United Nations has launched a global program against corruption to encourage States members to develop coordinating actions and means to exchange all information.On the European Union scale, two conventions were signed in Brussels to fight against corruption. A first is of 26 July 1995, it encourages States Members to punish the laundering of the money got by fraud or corruption.The second convention of 26 May 1997 obliges states of the European Union to criminalize corruption that affects the financial interests of the European Communities.It is noted as well that there is an internationally common will of harmonization and unification of laws to help to identify the phenomenon of corruption. In Tunisia, the Tunisian Criminal Code of 1913 provides for the corruption in the second section of the third chapter of the second book. This chapter deals with offenses committed by public officials or equivalent in the course of or in connection with the exercise of their functions : it states corruption, bribery (section 3), embezzlement committed by public trustees (stakeholders) (section 4) and abuse of authority (section 5). Bearing in mind the efforts taken by different legislatures, corruption due to its wide and deep cultural perspective make the mission of fighting it a herculean task. b- Cultural Perspective of Corrupt Behaviour : is it a necessary evil ?Today some people think that bribe is more powerful than knowledge, more powerful than wisdom, more powerful than degrees. As they said that they can buy all of these with money. Nowadays Corruption is a global phenomenon and it is omnipresent. Corruption in present times has spread over the entire society as a cancerous disease in all forms. Is it really bad? Bad to whom? And good to who? Corruption is good for those who want to conduct their business illegally. It is not good for those who think it is evil. In fact many studies have challenged the view that corruption has a detrimental effect on a nations economy and some have even claimed that it can be good for development. However it properly doesnt matter how much corruption a counrty has. What matter is what state officials do with the bribes that they had collected. It appears that Asians and Eastern Europeans tend to invest this money in sensible business projects in their countries whereas many Africans chose to stock and store it in foreign banks. Therfore corruption is not affecting much the Asian and the East European economies but has many negative and serious effects on African one some economists going back to at least Leff (1964) and Huntington (1968) believe that corruption can enhance growth by allowing individuals to pay bribes in order to circumvent inefficient rules and bureaucratic delays. Simply put, in much of the third world, corruption is needed to get things done. If corruption is reduced without corresponding changes to eliminate inefficient rules, business activity and economic growth may slow. If a first best solution of good rules is unavailable then corruption that avoids

some of the restrictions created by bad rules becomes a second best solution and an alternative path to growth. Thanks to corruption, most of the illegal activities that happen in Malaysia,for instance, are allowed to go on scot-free, without the criminals arrested. Thanks to corruption which are done by enforcement officers who are mostly Melayu that has allowed those illegal activities to carry on. And it is also an open secret how many of the illegal business operators had cleaned their ill gotten wealth by going into proper business by opening supermarkets or other establishments which act as fronts to cleanup more ill gotten wealth. Where did the money for the money lending operations come from, if not from other illegal business activities? But what about corruption that involves bigger names and establishments with Melayu politicians and other figures involved? They also happen. But they are done in collusion with some enterprising Chinese businessmen who wanted to expand their businesses or to get the necessary licenses, permits or projects which they could not get on their own, knowing how the system in Malaysia works that often requires patronage. And the Melayu can provide them this. So there is corruption on the small scale as mentioned above and in the larger scale involving in the millions and men who are titled and well positioned. But the Melayu who are corrupt and who are involved in large scale corruption do so with the collusion of the Chinese businessmen.The Melayu and the Chinese can stop it. But they do not want to do it because they lose either way. So they need each other. Still corruption is a necessary evil for both parties; one which has the means to offer it and the other party accepting it by virtue of the special position they have in the government or agencies. Corruption involving the Chinese and Melayu started long ago when the Chinese first landed in Tanah Melayu. With corruption they were able to get land and other properties to start their small businesses. And with corruption they were able to get permits to operate stores and sell things. according to some thinkers, without corruption the economy of the Chinese could not grow. It was an invention created and brought into the country by the Chinese immigrants. The Indians who were not so good in this business are left behind. They affirm that if the Indians were good in corruption as much as the Chinese, they can become wealthy now instead of being stuck in poverty. But, logically, does corruption prevent people from poverty ?! Or, on the contrary, corruption causes poverty and other dangerous effects ? If So, doesnt this call to seriously get involved in fighting corruption ? 2Hazards and risks of corruption : a- Multiple dimensions of corruption harmful effects Corruption in all its manifestations is a dehumanising evil force, an unnecessary evil that must be fought with all the energy that we can muster. It is one of the main obstacles to sustainable economic, political and social development, for developing, emerging and developed economies alike. Overall, corruption reduces efficiency and increases inequality.

Estimates show that the cost of corruption equals more than 5% of global GDP (US$ 2.6 trillion, WorldEconomic Forum) with over US$ 1 trillion paid in bribes each year (World Bank). It is not only a question of ethics; we simply cannot afford such waste. De facto,The effect of corruption can not be overemphasized, It has many dimensions related to economic, political, social and environmental effects. The economic effects of corruption can be categorized as minor and major. However, both in one way or the other have serious impact on the individual community and country. First and foremost, corruption leads to the depletion of national wealth. It is often responsible for increased costs of goods and services, the funneling of scarce public resources to uneconomic high profile projects at the expense of the much needed projects such as schools, hospitals and roads, or the supply of potable water, diversion and misallocation of resources, conversion of public wealth to private and personal property, inflation, imbalanced economic development, weakling work ethics and professionalism, hindrance of the development of fair in market structures and unhealthy competition there by deterring competition. Large scale corruption hurts the economy and impoverishes entire population.In political sphere, corruption impedes democracy and the rule of law. In a democratic system, public institutions and offices may lose their legitimacy when they misuse their power for private interest. Corruption may also result in negative consequences such as encoring cynicism and reducing interest of political participation, political instability, reducing political competition, reducing the transparency of political decision making, distorting political development and sustaining political activity based on patronage, clientelism and money, etc.In other societies, the impact of corruption is often manifested through political intolerance, problems of accountability and transparency to the public, low level of democratic culture, principles of consultation and participation dialogue among others.In Social sphere, corruption discourages people to work together for the common good. Frustration and general apathy among the public result in a weak civil society. Demanding and paying bribes becomes the tradition. It also results in social inequality and widened gap between the rich and poor, civil strive, increased poverty and lack of basic needs like food, water and drugs, jealousy and hatred and insecurity.Closer home, corruption is said to have been factors for the down fall of past regimes byway of undermining the legitimacy of the governments and weakening their structures, reducing productivity, hindering development, worsening poverty, marginalizing the poor, creating social unrest and then to their downfall. b- The Tunisian example : fight against corruption programs after the down fall of past corrupted regime. Corruption was and still be a problem that is at once both political and economic. The lack of transparency and accountability that characterized Tunisia's political system similarly plague the economy, damaging the investment climate and fueling a culture of corruption. Even for all the talk of a Tunisian economic miracle and all the positive statistics before the revolution, the fact that Tunisia's own investors are steering clear speaks volumes. Corruption was the elephant in the room ; it was the problem everyone knows about, but

no one could publicly acknowledge.The Tunisian government had not made efforts to apply the rules on public officials regarding the announcement of the property, conflicts of interest and rules of conduct. There was no legal provision for the protection of whistleblowers in the public sector (it exists in the private sector however, the implementation is still weak). As a result, many of the whistleblowers, anti-corruption activists, and investigators do not feel safe when reporting on cases of corruption and bribery. More than that, despite the existence of transparent rules of tendering procedures, it failed,so far, in creating barriers enough to combat corruption in public procurement.Since the revolution, there has been an increasing popular demand on empowering transparency and accountability, participation and fighting corruption that are essential components of democratic governance. In response to the increasing demand on anti-corruption assistance in Tunisia, the following legislations and institutions were established : -The establishment of a national commission to investigate the facts and corruption in 2011 to look into corruption perpetrated by the old government, and advise on concrete measures to combat corruption. -Proposal by the Constituent Assembly in December 2012 of a national project to combat corruption, which is based on the establishment of a national system of integrity and promote an independent national authority to combat corruption and strengthen the participation of civil society and the training of specialized journalists. -In late 2012, the government issued an electronic portal for anti-corruption portal titled National Anti-Corruption, a result of the existing partnership between the government, civil society and the United Nations Development Programme in Tunisia in order to promote integrity in the country. Etc But, do these efforts reach the aspirations and achieve the ambitions of Tunisian people ? If not, what others procedures and guarantees should be taken to ensure both integrity and transparency ? Conclusion / Recommendations Bearing in mind all the facts mentioned above we must ensure that the results of corruption are often disastrous and Fighting it effectively is a necessary Herculean task. It depends on both the political will and financial resources.Here are five strategic priorities that TRANSPARENCY INTERNATIONAL have identified to fight corruption :

People: Increased empowerment of people and partners around the world to take action against corruption. The challenge is to engage with people more widely than ever before for ultimately, only people can stop corruption. Institutions: Improved implementation of anti-corruption programmes in leading institutions, businesses and the international fin ancial system. The challenge is to ensure that commitments to stop corruption are translated into actions, enforcement and results. Laws: More effective enforcement of laws and standards around the world and reduced impunity for corrupt acts. The challenge is enforcing fair legal frameworks, ensuring there is no impunity for corruption.

Values: Higher levels of integrity demonstrated by organisations and people, especially youth and those in leadership positions around the world. The challenge is to secure greater commitment to integrity by both current and future generations in all aspects of public and business life. Network: Strengthened ability to work together. We seek to expand the knowledge base of our diverse Movement, so that we can promote ever more effective anticorruption solutions which have a real impact on peoples lives.

how we can fight corruption ?

IntroductionThe discussion on corruption is almost as old as government, though only in the last two decades has it been a high political priority. This new urgency in discussing the full range and variety of corrupt practices, their causes and impact, stems from the increased pressure to introduce transparency and accountability criteria in development aid packages and mechanisms aimed at assisting developing countries, in addition to the tasks of overcoming criminal behaviors and risks in the transition of the countries. Good governance and anti-corruption became key concepts in the way both the international financial institutions and Western governments approached Third-World and postCommunist transition reforms and policies.By the same token, increased importance was given to countering graft in developed countries, some of which have a long tradition of tolerating and downplaying the risks of corrupt behavior of public officials. Following the introduction of the US Government transparency and integrity standards and anticorruption strategies in the 1990s, good government/integrity reforms dominated the public policies discourse at a global level. Accordingly, corruption became the subject of extensive theorizing and substantial empirical research, which produced a vast array of approaches, explanations, typologies and prescriptions. This emphasis is likely to continue in the wake of the popular revolutions and protests in North Africa and the Middle East, which underlined the perverse linkages between authoritarian politics and corrupt practices.Furthermore, the looming threats from organized crime using corruption instruments in some candidate countries stressed the urgency to counter what was termed state capture, i.e. the organized crime/corrupt officials associations and interactions aimed at circumventing democratic checks and balances and fair competition rules. Similarly, anti-corruption institutions scanning and monitoring became an important part of the efforts to identify the weak link in the public domain, usually targeted by criminals.International organisations also agreed to give additional importance to anticorruption strategies, tools and activities. The OECD (Organisation for Economic Co-operation and Development) adopted a Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which came into force in 1999; two years later the Council of Europe introduced the Criminal Convention on Corruption and the Group of States against Corruption (GRECO) Review Mechanism, while in 2003 the United Nations (UN) General Assembly adopted its UN Convention against Corruption (UNCAC). The EU initiatives against corruption have been in comparison rather

limited due to the fact that corruption has been considered a domestic issue (third pillar). With the coming into force of the Lisbon Treaty in 2009, the anti-corruption role of the EU laid out in the Stockholm Programme has been re-energised, and in 2011 the EC presented an anti-corruption package that laid out its vision for future anticorruption initiatives. Corruption was also recognized in the EUs Internal Security Strategy (ISS) as an issue that undermines the foundations of democratic states.Corruption means different things to different people and aggregate definitions are moulded by cultural factors. Thus there can be no universal definition of this phenomenon. Rather, both international organisations and national jurisdictions develop their own definitions of corruption. In the current academic and political discussions, corruption is a broad term used to describe a wide spectrum of behaviors, ranging from criminal offences, the giving or receiving of a bribe, to concepts of good governance related to inefficiencies in public service delivery. Its most popular definition is the misuse of public office for private gain. Another definition, coined by Transparency International, a specialised anticorruption international NGO, which encompasses corruption in the private sector is the misuse of entrusted power for private gain. The 2005 UN Convention against Corruption describes corruption as: The promise, offering or giving to *or the solicitation or acceptance by+ a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties. Similarly, the Council of Europe defines corruption as : requesting, offering, giving or accepting, directly or indirectly, a bribe or any other undue advantage or prospect thereof, which distorts the proper performance of any duty or behavior required of the recipient of the bribe, the undue advantage or prospect thereof. Slightly broader definitions of corruption have been offered by Nye, who speaks of corruption as the abuse of public power not solely for private profit or wealth but also for status gains (Nye 1967, pp. 417 -427), and Khan (1996) who defines corruption as the misuse of public power for motives such as wealth, power, or status. Spencer at al. describe corruption as many kinds of irregular influence, the objective of which is to allow the participants to make profits they are not entitled to, the method being the breaking of internal or external rules (Spencer et al. 2006). The term corruption involves diverse processes which have differ-Transparency International (2010): Corruption Perception Index report UNODC, United Nations Convention against Corruption, New York, 2004. The Convention entered into force on 14 December 2005.Attempts at developing the typology of corrupt practices have led to the differentiation between three levels of this complex phenomenon (from Spencer et al. 2006, p. 7): systemic, when corruption is incorporated within the entire or particular sections (e.g. border control) of the rule of law system (multiple institutions: judiciary, police, customs, tax, etc.); institutional, where the institution affected is tolerant of corrupt practices; and

individual, where the person is prepared to undertake illegal actions because their employment provides them with an opportunity to exploit their position for gain.

International institutions and academics also distinguish between grand corruption (where significant bribes within the highest levels of government are involved) and petty corruption (where smaller amounts of money are used to corrupt individuals within the context of established governance and social frameworks). A frequently identified form of grand corruption is political corruption: the abuse of entrusted power by political leaders for private gain (TI, Global Corruption Report 2004, pp. 1, 21). Another form of grand corruption, described as state capture, permits entrenched economic actors (e.g. oligarchs/ tycoons in Eastern or Southern Europe) to manipulate policy formation and even shape legislation to their own advantage (Hellman and Kaufmann 2001).Another differentiation is between active and passive bribery. Active bribery refers to the offence committed by the person who promises or gives the bribe. Passive bribery is the offence committed by the official who requests or receives the bribe. The asking of a bribe by an official is often also defined as a form of extortion/racketeering.In the early days of corruption research, corruption was interpreted as a normative concept constituting an immoral act (Banfield 1958; Myrdal 1968; Wraith and Simpkins 1963). However, simultaneously an alternative approach emerged which stressed that corruption is a functional and inevitable feature of the process by which pre-modern societies were transformed into modern bureaucracies (Merton 1961: 73). They highlighted the beneficial roles of corruption as an exchange mechanism of political action for economic wealth and political stability (Huntington 1968); a means to integrate elite and non-elite members (Nye 1967), and as a means of creating trust in new institutions during transitions (Bayley 1966). Nowadays, most definitions and scholarly understanding of corruption focus on the negative rather than the functionalist aspects. It should be noted that systemic and institutional corruption may both have normative levels.It must be understood that because exact definitions of corruption differ quite markedly between different jurisdictions, and many institutions now operate on a global basis, there is a grey area for multi-national institutions. A transaction that is considered corrupt in one state could take place in another, where it is not illegal. The US Foreign Corrupt Practices act is one possible approach to deal with the problem: US companies are held liable and could be prosecuted in the United States if they engage in bribery outside the US.As a political economy category, corruption should not be overstretched to include all forms of either misuse of political power (undemocratic or authoritarian rule), or other types of crime like embezzlement, theft, fraud and extortion.Recent studies (CSD 2010) show that criminal structures target vulnerable public institutions/sectors and actors using appropriate corruption tools and mechanisms. Criminal collusion transforms corrupted public officials into associates of criminal networks in their illegal enterprises.

The causes of corruption is probably one of the most studied and disputed areas for academics. Over the years numerous studies have been carried out examining the causes and the factors that influence levels of corruption. Such studies are usually based on some sort of cross-country comparison, using major international indices that measure corruption, such as those developed by Transparency International or the World Bank.The identification of causes may suggest how to curb corruption. Yet identifying the causes may be challenging because of the tacit nature of corruption (i.e. the difficulty in measuring it) and, because of the ambivalent relationship between the causes and consequences of corruption, it is not always clear what is cause and what is effect.The relation between causes and consequences of corruption is often unclear. The most typical example concerns the relation between development (e.g. GDP) and corruption. Usually, low income drives some government officials into seeking additional income, and this is seen as a cause of corruption. Corrupt officials are less likely to carry out their duties effectively, thus lowering the quality of public administration, and acting in the private instead of the public interest. This locks some countries into poverty and often exacerbates it. After exposing the previous elements we have to know how we can fight corruption ? Fighting corruption can took place by imposing some measures capable to stop corruption. These measures can preventives (1) but also curitatives (2).Our study will focus on one of the landmark developments in the fight against corruption around the world is the United Nations Convention against Corruption. Negotiations among Member States were concluded in Vienna on 30 September 2003, after two years of deliberation. At the official opening ceremony in Merida, Mexico, in December 2003, nearly 100 States signed the new instrument, a number indicative of the height of concern about the problem, and getting the new Convention off to a very promising start. 1. PREVENTIVES MEASURES The United Nations Convention against Corruption is recognized as an opportunity to increase and improve the preventive measures that we have undertaken in procurement, information technologies and citizen participation. The United Nations Convention will undoubtedly generate positive effects in every country that decides to become a party to it. It will strengthen international cooperation in extradition, mutual legal assistance and anti-money-laundering. At the same time, the Convention will establish mechanisms to facilitate asset recovery, the return of stolen assets to their country of origin. Some of the most innovative and attractive aspects of this Convention are precisely the obligations to adopt preventive measures, to promote civil society participation and to formulate, implement or maintain policies against corruption. But let us hear now the proposals that the members of our panel will present on the following subjects: The promotion of active public participation.

 The implementation of coordinated and efficient policies against corruption; and the creation or support of institutions charged with preventing corruption. The promotion of ethical values, such as integrity, honesty and transparency, in both the public and private sectors by establishing and observing codes of conduct. The involvement of society in government decision-making and the promotion of accountability. Access to public information and the simplification of government procedures. The establishment of systems for public procurement and administration of public property to increase institutional transparency. The removal of public servants privileges and immunities that can serve as a mechanism for impunity. The implementation of transparent systems of recruitment, career development and tenure of public servants based on merit, equity and aptitude. The goal of this panel is to analyse the nature and scope of such preventive measures and the participation of both public and private sectors in their development and implementation.In recent years, corruption has taken on new forms; and with globalization it has become a serious problem for the international community. Its consequences are well known to all of us: it affects society as a whole; undermines the rule of law; causes people to lose confidence in their own governments and institutions; reduces investment and slows economic growth; and repels foreign investment and diverts public funds against citizens interests. All of us have suffered its effects. Corruption is a global phenomenon that has historically had strong roots in every culture in the world. It is the worst threat to the just development of our people because it alters the patterns of social coexistence. That is why it has been a central theme in several conferences, events and Conventions, which were promoted by supreme audit institutions, with the purpose of designing instruments to combat corruption and to save the resources and properties of the State. Therefore, we thank the representatives of the Government of Mexico and the United Nations, the organizers of this event, for the opportunity to share experiences, identify new problems and challenges, raise awareness, develop new cooperation strategies and discuss the consequences for our actions aimed at preventing and eradicating corruption. In that sense, if supreme audit institutions are to be effective, it is essential that the system of government authority is balanced and promotes sound financial management that helps in economic, social and ethical progress. Governments should also strengthen the role of supreme audit institutions in establishing rules and create a legal framework that guarantees independent action and identifies new control practices. Those practices should promote domestic and international collaboration and cooperation to effectively integrate the various actions

required in the global fight against corruption. In conclusion, administrative corruption has become a serious concern to those charged with the responsibility to fight and eradicate it. There have been many proposals to combat corruption, that is, practices which go against the interests of healthy and transparent public management. An action plan that attempts to set control milestones in the fight against corruption and to fortify democracy would need to rest on the following fundamental pillars. 1.1 Independence of auditing functions

To fight corruption, we need an auditing mechanism whose pillars should be impartiality and overall autonomy and independence: Such principles, that have also been named the Magna Charta of Supreme Auditing, were enshrined by the Supreme Audit Institutions (Intosai) in the Declaration of Lima on Basic Guidelines for Auditing, adopted by the IX International Congress of Supreme Audit Institutions in Lima in 1977. In that Declaration, it is established that supreme audit institutions can fulfil their functions effectively only if they are independent of the monitoring institutions and if they are protected against external influences. In the same way, the Declaration provides that supreme audit institutions should enjoy functional and organizational independence, a necessary condition to fulfil their mandate, and that the level of independence must be protected by the Constitution. It is no surprise that the topic of the independence of supreme audit institutions is a consistent theme in Intosai. However, the Declaration has not been adopted just because we need to attain and retain independence, but also because we need such independence to be provided by law. In that regard, I would like to recall that in December 1999, the people of Venezuela, for the first time in its history as a republic, passed by direct vote a new Constitution of the Bolivarian Republic of Venezuela. That Constitution was a conceptual and historic break with the countrys former complex administrative system, which was an obstacle to rapid and effective policy implementation. The new Constitution reorganized the powers and the fundamental institutions of the democratic framework. In other words, we have broken with the classic pattern of the modern State and, in addition to the legislature, the judiciary and the executive, we have added the State authority and the electoral power as self-standing branches of government. The State authority, which is constituted by the Parliamentary Commissioner for Administration, the Crown Prosecution Service and the Auditor-General of the Republic, is monitored by the Republican Moral Council formed by the Ombudsman, the Solicitor-General and the Auditor General. The new Constitution established the Auditor General of Venezuela as a body of the State authority, which is based on the historic idea of the Moral Power, formulated by the Liberator, Simn Bolvar. In that reorganization and re-institutionalization of the Republic, the controlling entity of Venezuela changes from being the auxiliary body of the former Congress of the Republic into an instrument for the citizens to exercise their right to control the use of public property. The controlling body has total independence: functional, administrative and organizational autonomy and the power to adopt regulations defining its structure

and functions. The universality of the control is established and the extensive participation of the citizens in the election of the Comptroller General of the Republic is asserted. 1.2 Citizen participation and the promotion of transparency

Citizen participation is a basis for the fight against corruption. Thanks to that mechanism, society is able to monitor the activities of public entities with regard to the mandates they have been given, including the use of public resources for the purpose of social development. Among the greatest challenges facing supreme audit institutions is the peoples need, indeed their lawful right, to greater scrutiny of the public entities that generate goods and services, which are meant to improve the quality of life, their interest in effective accountability, and efficient actions that reduce and prevent corruption and fraud. Citizen participation is a process by which citizens are involved in decision-making, supervision, control and execution of government actions affecting public and private businesses, with the purpose of attaining their full potential for the benefit of the environment in which they operate. Citizen participation is the exercise of the citizens right to participate in and interact with the State. It is understood as a right of people, whether individual or organized, to have an impact on the decision-making processes in every sphere of social life. Therefore, supreme audit institutions have promoted the disclosure of their management practices on their web sites and the establishment of citizen participation schemes, supported by norms and standards that govern the channels and forms by which society communicates and cooperates with supreme audit institutions, as well as with other relevant organizations active in anti-corruption. Similarly, they have promoted the development of a philosophy of anticorruption control, through civil education and by introducing mechanisms to guarantee transparency of public administration. In that way, supreme audit institutions have designed ways to keep citizens informed about their activities and the importance of their decisions. 1.3 Co-responsibility

For the fight against corruption, we need a plan of action that creates the legal platform providing for transparency in public administration, coordination among bodies of internal and external control, as well as for the participation of the various stakeholders in both the public and private spheres. The fight against corruption is of a strategic nature and its results will depend on the establishment of a more democratic and productive society, which is politically stable and socially balanced, where citizens have confidence in their institutions. The fight against corruption, however, is not a task exclusively to be dealt with by control bodies. The magnitude and depth of the problem is such that the objectives should include the following: Auditing bodies, internal as well as external, working together in the implementation of policies and strategies to fight and prevent corruption.

 A judiciary active in the prevention and punishment of corruption. Without just, appropriate and exemplary sanctions against those involved in corruption, it will be very difficult to eradicate it. An honest and transparent judiciary that penalizes corrupt persons and has the means to provide an appropriate and effective answer is essential. Our aim has to be to eliminate impunity, not only through appropriate sanctions for the corrupt, whether public or private representatives, but also through the recovery of the proceeds of corruption. That will assist in the development of an effective and modern control system that discourages corrupt behaviors. Educational, religious and cultural institutions, as well as the media, should be involved in the promotion of values such as transparency and integrity and the reporting of corruption. Corruption is a phenomenon that equally concerns the private sector, which is not only often involved in corruption, but also promotes it through bribery. In that context, the financial aspect is of special importance. Bankers must therefore know their clients and the origin of their assets. Every citizen has to have access to the necessary information in order to be able to evaluate the institutions. Citizen participation in topics that are of public interest constitutes an essential condition for the promotion of transparency. Therefore, citizens must have access to clear and truthful information about the use and administration of the public resources in those areas that are most relevant to them. All of us, to a greater or lesser extent, share responsibility in the fight against this challenge that affects our societies. An efficient and modern control system that discourages corrupt acts must be urgently developed. It must be supported by an effective legal and regulatory framework. In the globalized world in which we live, such a system has to interact through cooperation and mutual assistance among national institutions, such as the Court of Justice, the Department of Public Prosecution, supreme audit institutions and other governmental and nongovernmental bodies, as well as all international institutions and actors who collect information and experiences that may enrich our policies and strategies against the problem in question, which has been called the social AIDS. The corruption problems that our nations face today cannot be fought by Governments alone. Such problems call for the involvement of the private sector, civil organizations and nongovernmental organizations. Until now, such cooperation and coordination have been insufficient. Therefore, all sectors need to join efforts, at the national and international levels, in order to promote: A better understanding of the problem, as well as of the institutions that fight it, and enhanced exchange of information. Awareness of the gravity of the phenomenon and a better understanding of the existing legal instruments to fight it, this Convention being one of them.

 Mutual technical assistance, better institutional coordination and a solid and internationally focused approach to the problem. The establishment of practical measures for the implementation of Member States strategies in the fight against corruption. The development of judicial systems that are honest and transparent and that effectively punish corrupt people; Leaders from all spheres of life who are honest, professional and upright and who set an example through their behavior and provide new role models, new behavioral standards and new ways of social interaction. 1.4 Proposals

Measures and proposals that can be used, especially with regard to corruption prevention, include: Establishing an international register of enterprises that were involved in corruption. Creating an international alert register of enterprises operating out of countries qualified as tax havens, in order to facilitate inspections of the ways in which they control and regulate their financial transactions. Creating a fund for the promotion of ethical values in the fight against corruption. We have to promote ethical values such as honesty, integrity and truthfulness in the educational and cultural spheres. Endorsing multilateral agreements that provide for the repatriation of the proceeds of public and private sector corruption. Establishing multilateral extradition agreements applicable to public and private sector corruption. Finally, corruption is a problem that hurts all peoples of the world, as long as it continues to steal the resources that should be used to fulfil the needs of societies and increase the quality of life. That is why the legislation of Venezuela describes it as the crime of the offended country. I would add of the offended humanity. For us, it is an act of terrorism. Yes, a social terror leading to poverty, hunger and death. 2. CURATIVES MEASURES 2.1 Gathering and use of evidence

Measures which expedite the gathering and production of evidence While the basic burden of proof rests on the prosecution and applies in all criminal cases, changes may be made to expedite the gathering and production of the evidence needed for prosecutors

to meet that burden. Legislation may increase investigative powers or simplify the requirements for admission of evidence in proceedings. Increasingly, the law must deal with evidence stored or transmitted using electronic information and communications technologies, as well as more traditional issues, such as bank secrecy and similar laws or practices. Generally, powers whose exercise is based on suspicions of crime having taken place or are used in support of a criminal investigation are subject to additional safeguards, but more routine powers of audit or personal disclosure requirements which may apply to all public servants regardless of any suspicion may also be considered. These may be supplemented by criminal offences for conduct such as making false disclosures or obstructing inspections or audits such that corrupt officials, who fail to comply with transparency requirements that would expose corrupt conduct, may be prosecuted for the disclosure offences instead. The basic presumption of innocence and the high onus of proving guilt beyond a reasonable doubt applies only in criminal cases. The International Covenant on Civil and Political Rights and other international and regional human rights instruments as well as national human rights protections refer only to cases where someone is charged with a criminal offence however, there are variations with respect to how this should be interpreted. The narrow interpretation is that the presumption would not apply in proceedings prior to the laying of charges, and would not apply to cases where there were no charges or prosecution, even if criminal or quasi-criminal punishments, such as the confiscation of property, might be applied. The broader interpretation would extend the presumption to all procedures or proceedings, which might lead to criminal or quasicriminal sanctions, including both of these scenarios. Thus, in some countries, it may be possible to use non-criminal proceedings, and a lower burden of proof, than in others. Some types of these non-criminal proceedings include the following.

2.1.1

Civil or preventive forfeiture of corruption proceeds

A lower, balance-of-probabilities standard of proof may be used where allowed by domestic constitutional or other requirements in any case where remedies are being sought but where no one has been actually charged with the commission of a crime. This approach may also be used if the remedy of recovering assets is fashioned in such a way that it amounts to the civil recovery of wrongfully obtained assets and their return to their rightful owners, as opposed to a form of criminal punishment. Precisely how this distinction is made will generally depend on the formulation of domestic human rights and procedural principles, and how officials and the courts apply these in practice. The use of civil or preventive proceedings is also a significant issue in international cooperation, as some countries allow the broad use of such proceedings and remedies, while others limit their use in order to ensure that they are not used to circumvent or avoid the human rights safeguards which apply to criminal proceedings. Countries such as

Italy 20, Ireland 21 and the United States provide, under varying conditions, for the possibility of civil or preventive confiscation of assets suspected to be derived from certain criminal activity. Unlike confiscation in criminal proceedings, such forfeiture laws do not require proof of illicit origin "beyond reasonable doubt". Instead, they consider proof on a balance of probabilities or demand a high probability of illicit origin combined with the inability of the owner to prove the contrary. In one case, the European Human Rights Commission and the European Human Rights Courts were called upon to review the consistency of this provision with the principle of the presumption of innocence.23 Based on three criteria for determining the criminal nature of a provision, namely the classification of the proceedings under national law, their essential nature, and the type and severity of the penalty, the Commission concluded that the confiscation, which is classified as preventive measure, did not have the degree of severity of a criminal sanction. The Commission assigned particular relevance to the fact that (i) the confiscation did not imply a judgment of guilt, but rather that of the social danger of the respondent, based on the well-founded suspicion of his participation in a Mafia-type organization and (ii) it was applied only to such properties, that on a balance of probabilities had been found to derive from illicit sources. According to the Proceeds of Crime Act 1996 of Ireland the High Court upon application can seize assets that are suspected to be derived from criminal activity. Seizure can be ordered without prior conviction or proof of criminal activity on the part of the (civil) respondent, who, to defeat the claim, is required to establish the innocent origins of his suspicious and hitherto unexplained wealth. The US Forfeiture Laws introduced the concept of "civil action" against the property itself, which allows for proofing the illicit origin on a balance of probabilities. European Human Rights Commission, No. 12386/ 1986 With regard to the property right as provided by Art. 1 Protocol No. 1 to the European Human Rights Convention, the European Human Rights Court affirmed the proportionality of the preventive confiscation as an instrument in the fight against the Mafia. 2.1.2 The use of regulatory, administrative or disciplinary proceedings

While the presumption of innocence and a high standard of proof apply to cases involving a criminal offence, many countries have administrative or regulatory measures which are similar to criminal ones but which do not lead to criminal punishments, and which are often limited in their application to specific categories of natural or legal persons. Where private-sector bribery is not made a crime, for example, administrative offences and punishments established for the purpose of regulating companies or financial markets might still apply and on the basis of proof on the balance of probabilities. Regulations or standards of practice for public servants or regulated professions, such as law, might also include offences and sanctions for corrupt conduct which could lead to professional

discipline, discharge or removal of practicing privileges, again proved on the balance of probabilities. 2.1.3 The use of a reduced burden of proof in specific elements of criminal proceedings In some legal systems, after the basic legal burden of proof has been discharged, certain facts may be presumed to the advantage of the State. a. Criminal forfeiture of assets on a reduced burden of proof One example, which commonly arises allows the proceeds of crime to be traced, seized and forfeited based on a reduced standard of proof, once someone has been convicted of a crime. Where provided by law, such mechanisms may be useful for recovering the proceeds of corruption, but they usually cannot be used to establish criminal guilt or impose sanctions other than the recovery of proceeds. The most common scenario is where the crime is proved in proceedings which lead to the conviction of offenders. In cases where the offenders are deceased, out of the jurisdiction or cannot be prosecuted for other reasons, some countries laws allow for confiscation, without any prosecution, where there is proof that an offence has occurred and that the targeted assets are proceeds While the formulation of such provisions differ, most of them are based on the concept that the property and pecuniary resources of persons convicted of certain crimes should be presumed to be derived from criminal activities unless he or she is willing to produce a satisfactory explanation of their lawful origin. The "burden of providing a satisfactory explanation" only becomes effective once the prosecution has established that the offender is in direct or indirect control of monies, property or other pecuniary resources which appear to be out of all proportions when compared to his income. Only at this stage the offender is requested to provide an explanation, which, if satisfactory, places the burden of proof once again upon the prosecution. Some countries narrow the proposition further and require that the prosecution establish guilt of a criminal offence beyond reasonable doubt before the presumption of illicit wealth can be invoked. As far as courts have been called upon to review such provisions, they have found them in consistency with the presumption of innocence. For example, the European Court for Human Rights examined the consistency of a confiscation under UK Drug legislation with Art. 6 para 2 European Human Rights Convention.30 The key question for the court regarding the applicability of Art. 6 para 2 to the confiscation proceedings was whether the prosecutor's application for a confiscation order following the accused's conviction amounted to the bringing of a new "charge" within the meaning of the Article. While the Court recognized that implicitly the 1994 Act required the national court to assume that the defendant had been involved in other unlawful drug-related activity prior to the offence of which he was convicted, it affirmed that the application of confiscation under the UK Drug Trafficking Act 1994 did not involve any new charge, since the purpose of this procedure was not the conviction or acquittal of the applicant. Hence it could not be

concluded that the applicant was being charged with a criminal offence beyond the one of which he had already been found guilty. b. Criminal offences in which some elements are presumed against the accused A second common example is the establishment of criminal offences in which, once some elements are proven, others may be presumed against the accused in the absence of proof to the contrary. The most common use of such measures in anticorruption legislation is the creation of the offence of illicit enrichment. By this (significant) unexplained wealth is presumed to have been illicitly acquired once the basic acquisition of the wealth is proved and is shown to be disproportionate in relation to the known means of the accused. The accused must then produce an explanation for the lawful origin of the wealth (either an explanation that is simply credible or else established on the balance of probabilities). In systems where asset-disclosure is mandatory, for example, proof that a public servant had more wealth than he or she had declared would result in conviction for illicit enrichment unless the accused public servant could establish a legitimate source for the wealth. Such provisions are unquestionably effective, and are based on the policy that the person in possession of the wealth is in the best possible position to produce evidence of how it was acquired, but in some countries they are thought to infringe the right to remain silent. In other countries the provisions are regarded as being valid, and the difference depends to a large degree on how the right to the presumption of innocence is interpreted and applied in each country. One line of interpretation holds that the right to be presumed innocent overall includes the right to be presumed innocent on each essential element of an offence. In this model it is argued that safeguards are needed to ensure that the innocent are not convicted and to prevent legislatures from rendering trials unfair through overturning difficult areas of proof or from converting difficult investigative or evidentiary problems into offence elements which are presumed against the accused. The other line of approach holds that, once the basic core elements of an offence have been proved beyond a reasonable doubt, this effectively raises an evidentiary burden to rebut prosecution evidence and to prove additional facts against the prosecution. In this model, once it is proved that the accused public official has wealth, which exceeds all legitimate known sources, an evidentiary burden then may be imposed on him or her to show that it was obtained from legitimate, and not illicit, sources. In some cases, the constitutional or legal viability of reversed or diminished burdens of proof will depend on the relationship between what must be proved by the prosecution and what must then be proved by the accused. If there is some factual link such that, once the prosecutions case is proved, there is little or no rational explanation other than the guilt of the accused, the presumption is more than likely to be upheld. In the case of

illicit enrichment offences, this would apply where the legislation and proceedings were structured so as to eliminate all possible legitimate sources of wealth before proven enrichment was presumed to derive from illicit sources. There can be no doubt that the offence of illicit enrichment can be a valuable tool in fighting corruption. Low-level customs officers may be driving late model Mercedes that they could not conceivably have acquired through their earned income. Given that they are in positions where they can take bribes, the assumption would be that the officers have enriched themselves illicitly, unless they can show that they have won a lottery or perhaps inherited wealth from a rich relation. 2.2 International judicial cooperation

It is now widely accepted that measures to address corruption must go beyond domestic criminal justice systems. In a modern world, no country is an island in the sense that it can quarantine itself from the impact of events elsewhere. Corruption is no exception, and its links to international organised crime, drug trafficking and terrorism is plainly recognised. The growth in understanding of both the scope and seriousness of the problem of corruption is reflected in the evolution of international action against it. This has progressed from general consideration and declarative statements; to the formulation of practical advice; to the development of binding legal obligations; and now to the emergence of numerous cases in which one country has sought the assistance of another, not only in the investigation and prosecution of corruption cases but also in the pursuit of their illicit proceeds. This understanding has also progressed from relatively narrowly-focused measures directed at specific crimes (such as bribery) to more broadly-focused measures against it; from regional instruments developed by groups of relatively like-minded countries (such as the Organisation of American States, the African Union, the OECD, and the Council of Europe), to the globally-based United Nations Convention Against Corruption. Actions on specific issues within specific regions have become more general in order to deal with the problem more effectively. 2.2.1 The United Nations convention against corruption of 2003 Concern about corruption as an international problem has increased greatly in recent years. The most dramatic development has been the signing in December 2003 of the United Nations Convention Against Corruption in Mrida, Mexico. The Convention will enter into force when it has been ratified by 30 countries. The Convention represents a major step forward in the global fight against corruption, and in particular in the efforts of UN Member States to develop a common approach to

both domestic efforts and international cooperation. The Convention can be seen as the product of a series of both procedural and substantive developments. In formulating the terms of reference for the negotiation of the Convention, the relevant Intergovernmental Open-ended Expert Group concluded that the new convention should be comprehensive (in the sense that it should deal with as many different forms of corruption as possible), and multidisciplinary (in the sense that it should contain the broadest possible range of measures for countering corruption). The Group began the development of a broad inventory of specific forms of corruption, including areas such as trading in official influence, general abuses of power, and various acts of corruption within the private sector which had not been dealt with in many of the earlier international instruments. Building on the broad range of measures included in the Convention Against Transnational Organized Crime, the Expert Group called for the creation of specific criminal offences and for the provision of fresh investigative and prosecutorial powers. All of these basic elements appear in some form in the final Convention, with criminal offences specifically tailored to corruption. To go beyond the scope of the Convention against Transnational Organized Crime, a series of specific preventive anti-corruption measures were added, both to promote transparency and high standards of conduct (particularly in the public service) and to provide approaches for preventing corruption from taking place. A further significant development was the inclusion of a specific Chapter dealing with the recovery of assets, a major concern for countries pursuing the assets hidden abroad by former leaders and senior officials found to have engaged in corruption. 2.2.2 The United Nnations convention against transnational organized crime of 2000 The United Nations Convention Against Transnational Organized Crime, adopted by the UN Millennium General Assembly in November 2000, is focused on the activities of organized criminal groups. It does, however, recognize that, in many cases, corruption is both an instrument and an effect of organized criminal activity, and that a significant portion of the corruption associated with organized crime is sufficiently transnational in nature to warrant the development of several provisions in the Convention. The Convention is a binding international legal instrument, although the degree to which each individual provision is binding depends on the particular wording used. It is presently open for signature and ratification, and may achieve the necessary number of ratifications, to come into force during 2002 or 2003. The Convention establishes four specific crimes to combat activities commonly used in support of transnational organized crime activities: participation in organised criminal groups, money-laundering, corruption and obstruction of justice. States Parties are required to criminalize those activities, as well as to adopt legislation and administrative

systems to provide for extradition, mutual legal assistance, investigative cooperation, preventive and other measures, as necessary, to bring existing powers and provisions up to the standards set by the Convention. In addition to establishing a corruption offence (Article 8), the instrument also requires the adoption of measures to prevent and combat corruption (Article 9). The criminalization requirements include central provisions that are binding on States Parties, and supplementary provisions that are discretionary. The mandatory corruption offences capture both active and passive corruption: "the promise, offering or giving" as well as "the solicitation or acceptance" of any "undue advantage". In both offences, there must be: (i) a "public official" and100 (ii) the advantage conferred must be linked in some way to his or her acting corruptly, or refraining from acting, in the course of official duties, and (iii) the advantage corruptly conferred may be conferred directly or indirectly. States Parties are also required to criminalize participation as an accomplice in such offences. As well as the mandatory offences, States Parties are also required to consider criminalizing the same conduct where the person promising, offering or giving the benefit is in one country and the public official who requests or accepts it is in another. States Parties are also required to consider criminalizing other forms of corruption. In cases where the public official involved was working in a criminal justice system and the act of corruption was directed at distorting legal proceedings, the Convention offence relating to the obstruction of justice would also usually apply. In addition to criminalization requirements, the Convention also requires the adoption of additional measures against corruption. The text calls for "legislative, administrative or other effective measures to promote integrity and to prevent, detect and punish the corruption of public officials. It does not specify details of the measures to be adopted, but requires steps to ensure that officials take effective action, including granting appropriate authorities sufficient independence to protect them against inappropriate influences. Other Convention provisions may also prove useful in specific corruption cases, notably the Articles establishing the money laundering offence and providing for the tracing, seizure and forfeiture of the proceeds of crime. The Convention requires States Parties to adopt, to the greatest extent possible within their domestic legal systems, provisions to enable the confiscation of any proceeds derived from offences under the Convention and any other property used in, or destined for use in, an offence under the Convention.

Courts or other competent authorities must have powers to order disclosure or seizure of bank, financial or commercial records to assist in asset tracing. Bank secrecy cannot be raised as an obstacle to either the tracing of the proceeds of crime or the provision of mutual legal assistance in general. Once proceeds or other property have been confiscated, they can be disposed of in accordance with the domestic laws of the confiscating State, but that State is required to give "priority consideration" to returning them to a requesting State Party in order to facilitate the compensation of victims or the return of property to its legitimate owner. The application of the Convention of 2000 is generally limited to cases that involve an "organized criminal group" or events that are "transnational in nature". The requirements of transnationality and organized criminal group involvement have to be met if the various international cooperation requirements are to be invoked in corruption cases. Where these requirements are met, a wide range of assistance and cooperation provisions apply as between States Parties to the Convention to assist in investigations and, ultimately, to help secure the extradition or prosecution of offenders. 2.2.3 OECD Convention on combating bribery of foreign public officials in international business transactions of 1997 The OECD concluded the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions in November 1997. It came into force on 15 February 1999. As of early 2004, some thirty-five countries had ratified the Convention. Given the role of the private sector in international corruption and its impact on development in the developing world, the Convention is of considerable significance. As its name implies, the OECD Convention is relatively narrow in its scope. The sole focus is to use domestic law in exporting countries to criminalize the bribery of foreign public officials. It applies both to active and passive bribery but does not apply to forms of corruption other than bribery, i.e. to bribery that is purely domestic or to bribery in which the direct, indirect or intended recipient of the benefit is not a public official. Nor does it apply to illicit political donations (arguably the largest loophole in the Conventions framework). Excluded, too, are cases where a bribe was paid for purposes unrelated to the conduct of international business and the gaining or retaining of some undue advantage in such business. The obligation to criminalize includes any case where the offender offers, promises or gives "any undue pecuniary or other advantage to a foreign public official" in order to induce the recipient or another person to act or refrain from acting in relation to a public duty, if the purpose was to obtain or retain some business or improper advantage in the conduct of international business. States Parties are required to ensure that incitement, aiding and abetting or authorizing bribery is also criminalized, which means that lawyers and accountants who knowingly provide professional services in support of

such bribery are also liable to prosecution. The offences in the OECD Convention must also apply to corporations and other legal persons, in addition to individuals. Attempts at bribery and conspiracies to bribe, which pose a problem for some legal systems, must be criminalized if the equivalent conduct of bribing a domestic public official is criminalized. Prosecutorial discretion is recognized, but the Convention requires that it should be exercised on the basis of professional rather than political criteria. Punishments must be "effective, proportionate and dissuasive", and of sufficient seriousness to trigger the application of domestic laws governing mutual legal assistance and extradition. Any proceeds, or property of equivalent value, must be either the subject of powers of seizure and forfeiture or the imposition of equivalent monetary sanctions. Bribing foreign public officials must also trigger national money-laundering laws to the same extent as the equivalent bribery of a domestic official. In addition to criminal, civil and administrative penalties to ensure compliance, the instrument also requires measures to be taken so as to deter and detect bribery in the form of accounting practices in order to prevent domestic companies from concealing bribes paid to foreign officials. Since the OECD Convention came into force, the OECD Working Group on Bribery in International Business Transactions has adopted a rigorous process of assessing the status of implementation and compliance with its terms. Not only do countries assess their own progress, they also assess that of other States Parties. Since 1999, peer 102 review has taken place in over half of the 34 States Parties. For each country the Working Group conducted an evaluation that was then made available to the public. 2.3 Extradition

Extradition is the surrender by one state, at the request of another, of a person who is accused or has been convicted of a crime committed within the jurisdiction of the requesting state. Although new forms of judicial cooperation in criminal matters have been developed, such as transfer of proceedings, extradition for trial has maintained its importance because the place where the offence was committed is considered the most convenient place to try an offender. When a suspect or convicted person is located in a foreign state (the requested state), a prosecutor or investigating judge of the requesting state may decide to have that person extradited from the requested state to face trial or the enforcement of the sentence pronounced in the requesting state. 2.3.1 Legal basis for extradition From bilateral treaties to regional agreements and multilateral schemes for extradition There is neither a legal nor a moral duty upon a state to extradite in the absence of a specific agreement binding it to do so. Because of this principle, many states, in particular

those of the common law tradition, will not extradite in the absence of a treaty or an ad hoc agreement such as an Exchange of Letters. Those states, as well as many other states, have traditionally based their extradition relationships on bilateral treaties. Many countries do not permit extradition for the purpose of questioning a fugitive or for their being investigated. With the inherent difficulties of separately negotiating a large number of bilateral instruments, increasingly countries have resorted to regional agreements and multilateral schemes for extradition. (The 50-odd countries of the Commonwealth, formerly the British Commonwealth, have had their own collective arrangements for extradition since 1966.) In the face of crimes with effects of international proportion, more general multilateral conventions have been developed, directed at particular crimes such as terrorist acts, drugs and organized crime. These conventions commonly include articles relating to extradition, such as the following: The convention offences are deemed to be included as extraditable offences in any treaty existing between Contracting Parties, A convention is considered to be a treaty for extradition purposes, where extradition is conditional on a treaty and no treaty exists between two Contracting Parties, The convention offences are considered extraditable if extradition is not conditional on a treaty. State parties are obliged either to extradite alleged offenders or to bring them before their own courts with jurisdiction based on e.g. the nationality of the offender (the principle of aut dedere aut judicare)1. Extradition without a treaty; Some states allow extradition without a treaty, on the basis of national legislation, which imposes in principle a condition of reciprocity. This is the basis for the Commonwealth Scheme, referred to above, which is not treaty-based. In a reply to the questionnaire prepared by the UN Secretariat-General on the United Nations Declaration on Crime and Public Security over one half (sixteen out of twentysix) of the responding states indicated that extradition for offences not covered by a treaty or to states where no treaty existed might be permitted on a discretionary basis, subject to applicable domestic constitutional or legal constraints. 2.3.2 Extraditable offences From the list approach to the eliminative approach most extradition treaties developed in the late 1800s to the early-to-mid 1900s defined extradition crimes by reference to a list of offences. Such lists are generally stagnant, and governments fail to bring them up to date to cover new crimes and changing terminologies as these emerge. To make matters worse, on occasions certain serious offences were omitted from the list

from the outset. Where it is not possible to supplement the particular treaty by means of a Declaration of Reciprocity, a fugitive is likely to escape extradition. In more recent treaties this approach has generally given way to an elimination test: any offence punishable in both the requesting and the requested state, by a minimum penalty defined by the two states (such as two years imprisonment), is considered to be sufficiently serious as to warrant being an extraditable offence. For extradition to be available, the act/s in question must constitute a crime in both the requesting and requested state. This rule serves two different purposes: first, to ensure the lawfulness of any form of deprivation of liberty according to the law of the requested state on the grounds that no individual may be arrested or detained on account of facts which are not punishable under the laws of that state; and second, to respect the rule of reciprocity in international proceedings. Many extradition cases fail because of a technical approach to dual criminality that stresses even very slight differences between the ways in which particular states have defined, named or prove criminal offences. For example, what may be called theft in one state may be named larceny in another. Although the conduct of the alleged offence may include all of the elements of fraud, as defined in both states, the definitions of the offences created to counter them may differ. Therefore, states have been looking for a more modern test for dual criminality; one that focuses not on technical terms or definitions but on the substantive underlying conduct. This new test, which has greatly simplified and improved extradition practices where it has been introduced, examines whether the conduct alleged against the fugitive would constitute a criminal offence in the requested state, regardless of whether the offences in the two states carry different names or have different constituent elements. But not all problems have been solved. In relation to the corruption of public officials the problem may arise where states only punish corruption of their own public officials, not that of public officials of other states. (If A requests B to extradite X, charged with corruption of a public official in A, B may not be able to extradite X because the facts, had they been committed on Bs territory, would not constitute an offence.) This has proved an obstacle to extradition in a number of cases. A flexible solution is the transformative interpretation, which is followed in such countries as Germany, Austria and the Netherlands. In this approach, the requested 113 state substitutes its own national elements for foreign national elements in the definition of the crime in an extradition request. Accordingly, for the purpose of extradition, bribery of national and foreign public officials is treated as being the same. 2.3.3 Bars and limits to extradition The Political offence and the fiscal offence exceptions

There is no internationally accepted criteria or definition of the te rm political offence or the rule that bars extradition for such an offence. A distinction is often made between

purely political offences (offences of opinion, political expression or those which otherwise do not involve the use of violence such as tre ason and espionage) and relative political offences (which involve violence as an incidence of the political motivation and goal of the actor, but which do not constitute wanton or indiscriminate violence directed against an internationally protected person, such as a civilian, i.e. it does not constitute an act of terrorism). In the Inter-American Convention against Corruption of 1996 it is provided that, for the purposes of extradition and mutual legal assistance, the fact that the property obtained or derived from an act of corruption was intended for political purposes, or that it is alleged that an act of corruption was committed for political motives or purposes, shall not suffice in and of itself to qualify the act as a political offence or as a common offence related to a political offence. This is seen as an important provision in a region where corrupt senior public officials had previously been known to flee in to neighboring countries with vast sums of money and to be given political asylum there. There is a general trend towards restricting, if not excluding altogether, the applicability of the political offence exception in respect to violent criminal acts. Traditionally, fiscal offences have been omitted from the scope of extraditable crimes, either through an explicit provision or by omission from the lists of extraditable offences. The traditional reluctance of countries to refuse to include tax offences within the scope of extradition (for the most part because states have no mutual interest in enforcing law peculiar to other states political-economic system) is now breaking down owing to increased concerns about organized crime, drug trafficking, money laundering, massive tax evasion, and violations of currency laws. The UN Convention Against Transnational Organized Crime explicitly prohibits States Parties from refusing a request for extradition on the sole ground that the offence is also considered to involve fiscal matters. Non extradition of nationals

In many states, particularly of the civil law tradition, the extradition of a states own nationals is prohibited, whether by constitutional law or practice. In their replies to a questionnaire prepared by the UN Secretariat-General on the United Nations Declaration on Crime and Public Security, only fourteen of the twenty-eight responding states indicated that their law allowed for the extradition of their nationals. The position differed greatly among the states that allowed for this, the matter being governed by treaties or agreements. Attitudes to extradition appear to be softening, particularly in Western Europe, where the rights of extradited persons are protected by a regional human rights convention. In most instances, countries that do not extradite nationals have domestic jurisdiction to prosecute their own nationals for offences committed in the territory of another state (judicare instead of dedere). In their replies to a questionnaire prepared by the UN Secretariat-General on the United Nations Declaration on Crime and Public Security,

sixteen of the states that responded to the survey indicated that their laws provided for obligatory or discretionary jurisdiction in such cases. Preconditions for such jurisdiction varied in accordance with general factors, such as national criminal legislation, applicable treaties and case-specific factors, such as the nature of the crime and the admissibility of evidence. Notwithstanding, practical problems continue significantly to impede the effectiveness of this alternative to extradition. It often seems to be the case that, despite best efforts to complete investigations and bring a case to trial, an adequate case cannot be assembled. Foreign witnesses may not be available or other evidence may be insufficient or inadmissible. Ten out of the eighteen responding states reported that between 1996 and 1998, having refused extradition, they had subsequently prosecuted their own nationals on the grounds of aut dedere aut judicare. One solution is for legislation to provide for the conditional extradition of a national, subject to the requirement that he or she be returned promptly after trial to the extraditing country to serve any sentence there. 2.4 Recovery of assets

Broadly speaking, assets stolen from national treasuries can be classed as being the proceeds of outright theft, bribes, kickbacks, extortion and protection money, the systematic looting of the State treasury, the illegal selling of national resources, the diversion of loans granted by regional and international lending institutions and the embezzlement of project funding contributed by bilateral and multilateral donor agencies. Because of such occurrences and the astronomical sums that can be involved, repatriation of assets diverted and stolen by high level public officials and politicians through corrupt practices has become a pressing issue to many Member States. However, to date successes in repatriation have been few and far between. so far. Most cases take years to conclude and all are extremely expensive. It is rare, too, that more than a small proportion of the illegal funds are eventually repatriated to the country from which they were stolen. 2.4.1 Problems hindering repatriation The problems hindering repatriation vary depending on the countries involved. Nevertheless, current and past cases seem to share some similarities. For example, the following factors hinder the successful recovery of assets or render it impossible: a. Lack of legal framework

Recent examples of recovery efforts show that the existing legal framework fails to provide a sufficiently practicable basis for the recovery of assets diverted through corrupt practices. Multilateral and bilateral mutual legal assistance treaties are too limited in their substantial and geographical scope and are therefore often not applicable except in the context of the specific cases from which they originated. As a consequence, no standard procedure is applied. Recovery strategies also vary, from civil recovery to criminal recovery and to a mix of both. Each method has its particular advantages and disadvantages, and the final choice depends on which is expected to work best in the local jurisdiction.. Selection of the appropriate strategy a requesting country should adopt, therefore, requires specialized legal expertise that can be costly. The United Nations Convention against Transnational Organized Crime is able to provide responses to some of the problems but, mainly because of its limited scope, it is applicable only in specific categories of cases. b. Legal problems encountered During the initial phase of a recovery effort, the main challenge lies in (a) the tracing of the assets, (b) the identification of the various players involved in the process of the looting and money-laundering of the assets, and (c) the determination of their potential criminal or civil liabilities. Often, the exchanges of information between various jurisdictions as well as the public and the private sphere are extremely cumbersome, if not wholly impossible. In such an environment, efforts can fail in the initial phase or not even be undertaken because of the difficulties envisaged. The central legal problems are related to jurisdiction and territoriality. Where legal systems are incompatible, particularly when cases involve cooperation between continental and common law systems, cooperation is intrinsically difficult. Mutual legal assistance treaties (MLATs) have often proven ineffective when the object is to trace and freeze assets as quickly as a matter of urgency. Overcoming jurisdictional problems can slow down investigations, often fatally. By the time investigators get access to documents in one jurisdiction, the funds may have been moved elsewhere. Legal problems differ significantly depending on the jurisdiction in which the recovery effort is pursued (common/continental law) and the approach chosen (civil/ criminal recovery). Civil law, allowing for confiscation and recovery based on the balance of probabilities, has the clear advantage since the evidentiary threshold is typically lower than with criminal actions. Conversely, access to information as well as investigative powers in the civil process is limited and, apart from some common law countries, the freezing of the assets can be difficult.

Civil recovery, however, also opens alternative approaches as far as civil actions against third parties are concerned. For example, in some common law countries (where compensation goes beyond simple economic damage and where moral and punitive damages are possible), actions against the facilitators of the looting may be available. Another advantage of civil recovery consists in the free choice of the jurisdiction in which the recovery of the proceeds of corruption is pursued. In the case of criminal recovery, prosecution must follow preset jurisdictional conditions while civil recovery can be pursued almost anywhere in the world and -perhaps even more importantly - in several jurisdictions at once. That can be particularly important where there is the risk that the offender might transfer his or her loot to a "non-freezing-friendly" jurisdiction. 2.4.2 The United Nations Convention against Transnational Organised Crime Due to the TOC Convention being currently under consideration for ratification, the issue of asset recovery as a legal concept will receive some important attention. The Convention, though targeted at combating offences that are transnational in nature and involve organized criminal groups, will provide some solutions in this context. Once ratified, the Convention will also be applicable to some other crimes, such as the embezzlement of State resources, fraud, theft, extortion and other forms of the abuse of public power for private gain, as most of them will be considered as serious crimes under the national law of the State Parties. The transnational nature of illegal transfers of stolen property will always be present in repatriation cases. Proving the involvement of an organized criminal group in the activity might, however, be problematic. In view of the wide definition of the organized criminal group as a "structured group of three or more persons existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain directly or indirectly a financial or material benefit", the Convention may be applicable in a wide number of circumstances, and include liability on the part of legal practitioners, bankers and accountants. In many cases of the more recent past, the main offenders relied on a network of close associates participating in and benefiting from the various criminal acts involved in the looting. The Convention obliges a State Party to provide mutual legal assistance for investigations prosecutions and judicial proceedings in relation to the offences covered by the Convention. The requesting Party must, however, have reasonable grounds to suspect that such offences are transnational in nature and involve an organized crime group. In particular, the mutual legal assistance to be afforded may include such measures as the identification, tracing, freezing or seizing and confiscating of the proceeds of crime. A request, however, is executed only in accordance with the domestic law of the requested State.

The Convention also obliges State Parties to submit the request for mutual legal assistance in relation to the confiscation of proceeds from offences covered under the Convention to its competent authorities for the purpose of obtaining an order of confiscation and, if it is granted, to give effect to it. In addition, the requesting State is also entitled to submit an order of confiscation issued by a court of its own territory to the requested State for execution. The new legal framework will mean that Member States handling cases of large-scale corruption will in future operate within a functioning and practical legal framework. In particular, they will be able to obtain the cooperation of other State Parties to identify, trace, freeze or seize assets deriving from a wide variety of corrupt practices. Recovery of assets, however, can remain problematic. According to Article 14, State Parties are required to give priority consideration to returning the confiscated proceeds of crime or property to the requesting State Party. The provision insofar as return is concerned, however, is not mandatory and would only become applicable where a requesting State Party intends to compensate the victims or to return the proceeds to their legitimate owners. While it is relatively easy to obtain repatriation where assets have been directly diverted from State resources, the situation is less clear with regard to the proceeds of corruption. In such cases, the interests at stake for the victim State are less clear unless it suffers damage directly linked to the payment of the bribe. Where the requesting State cannot show that the funds are actually owned by the State, the requested State may still confiscate the funds as criminal proceeds and keep the funds for themselves, viewing the primary objective as being the stripping of benefits from the criminals involved to show that crime does not pay.

what are the international instruments to fight corruption ?

Presentation (UNCAC): is the first truly global anti-corruption treaty outlining a common language for the anti-corruption movement. It was adopted by the UN General Assembly on 31 October 2003 and was opened for signature in Merida, Mexico on 9-11 December 2003. The UNCAC entered into force two years later, on 14 December 2005. The high number of signatories and ratifications reflects the broad international consensus on the Convention. This consensus was not only shared among States, but also among the international private sector and civil society. Background

 As indicated above, in 1996, the UN General Assembly (UNGA) adopted the International Code of Conduct for Public Officials. The text of the Code does not explicitly mention corruption although the term is referred to several times in the introductory paragraphs, which recommend Member States to use the Code as a tool to guide their efforts against corruption . However, the Code touches upon very similar and related issues, such as the receipt of gifts that may influence the exercise of a public officials function , and conflict of interest . In the same year, the Nations Declaration against Corruption and Bribery in International Commercial Transactions was adopted, the United This Declaration underlines the need to promote social responsibility and standards of ethics on the part of companies and recognizes the link between corruptions, fair and competitive business and accountable governance. Members states commits to criminalize bribery of foreign public official. The Ad Hoc Committee was officially convened for the first time in December 2001. After seven sessions, the Committee adopted the final text in October 2003, two months before the scheduled end date of its activities. Ratification Status As of 1 July 2012, 160 States, including such important global players as the US, China and India, have become a party to the UNCAC. This broad participation can be seen as an indication of large global support. However, the lack of ratification by a few states catches the attention neither Germany, Japan or new Zealand have ratified. UNGA Resolution 51/191 of 16 December 1996. UNGA Resolution 52/87 of 12 December 1997. UNGA Resolution 54/128 of 17 December 1999. UNGA Resolution 55/25 of 15 November 2000. Three protocols to this Convention have been adopted, namely on human trafficking, the smuggling of migrants and annexed to UNGA Resolution

 Member States can decide whether to impose criminal, civil or administrative sanctions, subject to its Legal principles. The UNCAC is not only innovative in terms of the acts it criminalizes, but also because of its strong focus on prevention, as well as the emphasis placed on international assistance and asset recovery. State Parties must set up anti-corruption bodies, establish appropriate procurement systems, strengthen the integrity of the judiciary, and take measures to prevent private sector corruption, promote the active participation of civil society and institute a comprehensive regulatory regime for banks and other financial institutions to prevent money-laundering. This mandatory provision does not leave much room for man oeuvre Independent domestic anti-corruption authorities 1 Even though the multilateral implementation system is still in its infancy, the UNCAC requires State Parties to set up domestic corruption-preventing and corruption combating bodies. Both the UNCAC and the Council of Europe Criminal Law Convention on Corruption (infra, 3.2.2) lay down certain conditions that anticorruption authorities should meet if they are to be effective. The Conventions refer to the requirements of; inter alia, independence, adequate resources, training and specialization. The UNCAC does not specify what conditions need to be met in order for anticorruption bodies to be considered independent. Clarification can be found in an OECD study, according to which independence requires most of all structural and operational autonomy, together with a clear legal basis and mandate for the anti-corruption body. The OECD study distinguishes four areas of anti-corruption efforts on which such national bodies should focus: 1) Policy development, research, monitoring and co-ordination; 2) Prevention of corruption in power structures (including prevention of conflicts of interest, assets declaration by public officials, anti-money laundering regulations, public procurement standards, etc.); 3) Education and awareness raising; and

 4) Investigation and prosecution (including coordination with auditors, tax authorities, banking sector, public procurement authorities, foreign law enforcement bodies, etc.). Certain States have adopted multi-agency models, which focus on strengthening anti-corruption measures in already existing governmental agencies (e.g., the US, UK, Russia, India and South Africa). Other countries opted for the single-agency model, which gives one anti-corruption agency the primary responsibility of implementing an anti-corruption program (e.g., Hong Kong, Botswana, Chile, Korea and Thailand). EUROPEAN INSTRUMENTS European Union The EU started off with modest anti-corruption instruments tackling mainly the misdirection of EU funds in 1995. The EU broadened its focus, with the last step being a comprehensive two-year review process of Member States general anticorruption achievements. 1995- Adoption of the Convention on the Protection of the European Communities Financial Interests was adopted. It covers misappropriation of EU funds through fraudulent statements or false statements. 1996- Adoption of the Protocol to the Convention, containing definitions of and harmonized penalties for, offences of corruption. 1997 Adoption of the Convention on the Fight against involving Officials of the European Communities or Official of Member States of the EU. 2003 Adoption of the Framework Decision 2003/568/JHA on Combating Corruption in the Private Sector The various anti-corruption instruments were rather fragmented. Moreover, the recent euro-crisis made clear that differences in national ethics and governance can endanger the very survival of the EU institutions. These considerations have led the EU to elaborate a comprehensive anti-corruption framework. 2011, the Commission adopted a proposal for harmonized procurement rules, including anti-corruption safeguards. Council of Europe The general focus of the Council of Europe (CoE or Council) lies on the development of common and democratic principles in Europe, as well as on rule of law and human rights.

 1997- The Committee of Ministers of the CoE adopted the Twenty Guiding Principles for the Fight against Corruption. These guidelines set out a broad spectrum of anti-corruption measures, such as limiting immunity for corruption charges, denying tax deductibility for bribes, free media and preventing shielding legal persons from liability. 1999 - The Criminal Law Convention on Corruption adopted by the Council of Europe. This Convention was ratified by 43 States. 2003 - An additional Protocol to the Criminal Law Convention on Corruption was adopted. To harmonize the definition of a certain type of corruption, namely that of public officials,of which only one (the US) is not a member of the CoE. 1999 - The Civil Law Convention was adopted. It focuses on effective civil remedies for any damage caused by corrupt acts. Both the Criminal Law Convention and the Civil Law Convention are open for signature by non-European countries. The Council has issued several soft law instruments. One of them is the Recommendation on Codes of Conduct for Public Officials, adopted on 11 May 2000. The anti-corruption implementation mechanism. 1999- the Council established GRECO, the Group of States against Corruption. GRECOs goal is to monitor compliance with the Councils anti-corruption standards. GRECO serves as a platform for both the exchange of best practices and peer pressure. States that are not members of the Council of Europe can become members of GRECO. Currently, GRECO has 49 members, of which only one (the US) is not a member of the CoE. OTHER REGIONAL INSTRUMENTS The OECD : the Organization for Economic Co-operation and Development The OECD Convention was signed on 17 December 1997 and entered into force on 15 February 1999. As of 1 July 2012, 39 States have become parties to the - It is important because its member states are home to the largest multinational - It adopted many recommendations namely the 2006 Recommendation on Bribery ,2009 Recommendation of the Council on Tax Measures for Further Combating Bribery of Foreign Public Officials

 -In 2010 the OECD adopted the 10 principles for transparency and integrity in lobbying -The scope of the Convention is limited to active bribery The inter- American convention against corruption: The Inter-American Convention against Corruption (OAS Convention) was adopted by the Organization of American States (OAS) on 29 March 1996 - the OAS adopted model laws, such as the model law on norms of conduct for public officials and on access to administrative information -Before the adoption of the UNCAC, the text of the OAS Convention was the most far-reaching of the international anti-corruption instruments

African instruments : The African Union Convention on Preventing and Combating Corruption (AUConvention) was adopted in Maputo, Mozambique on 11 July 2003 and entered intoforce around three years later -The AU Convention provides for an Advisory Board comprised of 11 experts monitor implementation Not far-reaching in its implications due to the lack of logistic support -The Southern African Development Community Protocol against Corruption (SADC Protocol) was enacted on 14 August 2001 and entered into force four years laterIt covers a wide range of corrupt practices, bothin the private and public sector, and provides a broad list of preventive measures -No satisfactory implications because the protocol lacks an adequate mechanism to implement it The Economic Community of West African States Protocol on the Fight against Corruption (ECOWAS Protocol) was signed on 21 December 2001 but has not yet entered into force provides for a wide range of preventive measures, ranging from codes of conduct for public officials, transparency in procurement etc Paradoxally it refers to freedom of speech and freedom of press as anti-corruption instruments which makes this convention a pionneer

ANTI-CORRUPTION INITIATIVES IN INTERNATIONAL FINANCIAL INSTITUTIONS The World Bank Case of the

The World Bank has assumed a leadership role in the fight against corruption and in integrating governance concerns in its operation. Through policy dialogue, technical assistance, lending operation, research and development of indicators However, the interest by the WB for corruption and governance is relatively new. History For most of its first 50 years, the Bank considered governance and corruption to be political issues and thus outside of its mandate. It changed with President Wolfensohns cancer of corruption speech at the 1996 World Bank and IMF Joint Annual Meetings: We need to address transparency, accountability, and institutional capacity. And lets not mince words: we need to deal with the cancer of corruption. President James D. Wolfensohn, October 6, 1996 In 1997the Board of Executive Directors of the Bank endorsed the first anticorruption strategy which had four principles: To prevent fraud and corruption in Bank-financed projects To assist countries that ask for help in curbing corruption To mainstream the Banks corruption concerns directly into country analysis and lending decisions, and To join the broader international effort against corruption. World Bank (1997) Helping Countries Combat Corruption: The Role of the World Bank, September The World Bank 2007 strategy has 3 main components: 1) Country level : Support for country efforts to strengthen governance and combat corruption. Operational level. Ensure the highest fiduciary standards in WB operations

 Global level: Coordinate engagement with the broader development community Country level : Support for country efforts to strengthen governance and combat corruption. Helping countries strengthen their effectiveness, transparency, and accountability. To improve growth rates and enhance the delivery of services, especially to poor people, the Bank supports initiatives to improve governance and reduce corruption. To promote good governance and curtailing corruption, World Bank lending programs can, in principle, support economic, administrative, political, and judicial reforms to enhance a nations capacity matters The GAC Strategy: 7 Guiding Principles The WBGs focus on GAC follows from its mandate to reduce povertya capable and accountable state creates opportunities for poor people, provides better services, and improves development outcomes. 2. The country has primary responsibility for improving governancecountry ownership and leadership are key to successful implementation, and the WBG is committed to supporting a countrys own priorities. The countrys government remains the principal counterpart for the WBG. 3. The WBG is committed to remaining engaged in the fight against poverty, and seeking creative ways of providing support even in poorly-governed countriesdont make the poor pay twice. The form of WBG engagement on GAC will vary from country to country, depending on specific circumstanceswhile there is no one size fits all, the WBG will adopt a consistent approach towards operational decisions across countries, systematically anchored in national strategies. 5. Engaging systematically with a broad range of government, business, and civil society stakeholders is key to GAC reform and development outcomesso, consistent with its mandate, the WBG will scale up existing good practice in engaging with multiple stakeholders in its operational work, including by strengthening transparency, participation, and third-party monitoring in its own operations. The WBG will strive to strengthen, rather than bypass, country systemsbetter national institutions are the more effective and long term solution to governance and corruption challenges and to mitigating fiduciary risk for all public money, including that from the Bank.

7. The WBG will work with donors, international institutions, and other actors at the country and global levels to ensure a harmonized approach and coordination based on respective mandates and comparative advantagethe WBG should not act in isolation Example: CHAD Direct government revenues from the Chad-Cameroon pipeline were placed in an escrow account at Citibank in London, to be disbursed for agreed expenditures by an oversight committee comprising government, parliament, supreme court, and civil society. While ringfencing worked, the Government wanted to change course and spend the money on arms, so the Bank withdrew. Because of mounting corruption concerns, the Bank recently stopped lending and closed the country office. Later reopened Examples of other countries where the Bank has stopped lending, for at least some period: Angola, Belize, Indonesia, Kenya, Mauritania, Paraguay, Uzbekistan, Turkmenistan Venezuela, Zimbabwe, PRIVATE INITIATIVES 1. Transparency International: Established by a former World Bank Director in 1993, the NGO TI has been a driving Force behind the global anti-corruption movement. Based on polls with, to a large extent, international business people and experts (Mostly expatriates). The data input for the CPI comes from different sources, which may render the final ranking obfuscated. Only countries for which sufficient data are available are included in the ranking The number of countries may consequently differ from year to year, which makes years unreliable Voices from developing countries have moreover criticized the CPI as a very narrow and non-nuanced way of ranking countries according to Western standards of corruption. These critics argue that such score boards only pit developing countries against each other and do not in any way enhance their Struggle against corruption. Notwithstanding these critiques, the individual country scores are widely quoted in the international press and publications on the issue of corruption In addition to the CPI, TI publishes a Bribe Payers Index (BPI) and a Global Corruption Barometer (GCB). The GCB is based on surveys of around 90,000 households in almost 90 countries and does not provide a ranking. This renders the uptake more limited than that of the CPI.

 The Bribe Payers Index (BPI) provides a ranking of leading exporting countries according to the perceived likelihood of their firms to bribe abroad. It is based on a survey of business executives focusing on the business practices of foreign firms in their country. Critics have argued that interviewing firms may lead to biased results, As firms will often minimize their willingness to pay bribes abroad when completing TI Surveys. The 2011 CPI ranked the Netherlands as the 7th least corrupt country, out of 183 Countries 2. The International Chamber of Commerce: - In 1977, the International Chamber of Commerce (ICC) adopted its first set of flagship rules against corruption. The ICC Rules on Combating Corruption serve as self mended in 2011 and reflect the spirit partners to comply with anti-corruption laws. The rules recommend integrating certain of their provisions into all contracts with business relations. 3. Other initiatives: Freedom House is a Washington-based NGO which focuses on several issues, including corruption: Its main focus is however on freedom of the press. Its Another forum for anti-corruption discussions is the World Economic Forum (WEF), a Geneva-based NGO funded by business membership contributions. In 2004, the WFC launched PACI (Partnering Against Corruption Initiative), a voluntary code of conduct initiative for which member corporations can sign up. PACI calls : for signatory companies to adopt a zero-tolerance policy on bribery. Its dual monitoring system combines self-evaluation with external verification.