Sampling Techniques for Supply Side Actors

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The UNCAC also recognises that efforts at corruption control cannot be successful without the participation of civil society. Thus, the convention specifically calls for States Parties to enhance the ability of civil society, grassroots organisations, as well as other non-governmental organisations, to participate fully and effectively in combating corruption. Part of the effort to enhance private-sector participation in corruption control requires national governments to ensure transparency in the management of public resources.²⁸

To further strengthen the national government‟s ability to fight corruption, the UNCAC criminalises certain practices, whether committed in the private or public sectors. These include bribery, extra-legal or illicit enrichment, embezzlement, and

„„prostitution‟‟ of one‟s public office.²⁹

A very important part of the UNCAC is international cooperation in the fight against corruption. The Convention provides specific guidelines that deal with substantive and procedural issues associated with the various aspects of fighting global corruption. The most important of these include (1) extraditions,³⁰ (2) mutual assistance in investigations, prosecutions, and judicial proceedings.³¹

One of the most important costs of monumental corruption in sub-Saharan Africa is that much of the money illegally appropriated by civil servants and politicians is usually deposited in numbered accounts in foreign banks. Thus, the UNCAC‟s emphasis on asset recovery is very important for many poor countries, whose corrupt and opportunistic leaders have illegally appropriated national financial resources and have either deposited them in foreign banks or have used them to purchase foreign real property.³² Article 51 states specifically that „„[t]he return of assets pursuant to this chapter is a fundamental principle of this Convention, and States Parties shall afford one another the widest measure of cooperation and assistance in this regard.”³³ In fact, asset recovery was considered so critical and fundamental an issue that the States Parties devoted an entire chapter of the Convention (Chapter V, Articles 51-59) to dealing with it.³⁴

The UNCAC provides detailed procedures on how States Parties can initiate action in the courts of a State Party where the illegally obtained assets are currently located in order to recover them.³⁵ The UNCAC also establishes a Conference of the States Parties to the Convention “to improve the capacity of and cooperation between States Parties to achieve the objectives set forth in this Convention and to promote and review its implementation.”³⁶ The Conference is expected to review, on a periodical

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basis, the extent to which States Parties are implementing the UNCAC and to make recommendations for improving the Convention‟s role in combating global corruption.³⁷

The UNCAC, of course, is an international agreement entered into voluntarily by the majority of the world‟s sovereign nations, with the aim of tackling one of the most intractable development constraints of this century-corruption. Nevertheless, it is important to realise, especially in the case of sub-Saharan Africa, that while many countries may be willing to cooperate fully in the global fight against corruption, they may not be able to do so either because ruling elites in these countries are the direct beneficiaries of the “corruption enterprise,” national institutions (e.g., the police and the judiciary) are simply incapable of functioning as effective counteracting agencies, or countries fear that international cooperation against corruption involves surrender of a certain level of national sovereignty. Where the national government is considered by most people as illegitimate,³⁸ it is not likely that civil society will cooperate with such a government in the fight against corruption.

Moreover, the UNCAC requires establishment of a number of offences as crimes in their domestic law, either by enacting new laws and amend the existing laws, if these are not already crimes under domestic law. The unique feature of the Convention is that it goes beyond previous instruments of this kind, criminalising not only basic forms of corruption such as bribery and the embezzlement of public funds, but also trading in influence and the concealment and “laundering” of the proceeds of corruption. Offences committed in support of corruption, including money-laundering and obstructing justice, are also dealt with. The Convention offences also deal with the problematic areas of private-sector corruption.³⁹

(i) Active and passive corruption by a public official

Passive corruption or bribery has been described as the acceptance of any undue advantage by a public official in exchange for performing a corrupt act relating to his or her public functions. Active corruption on the other hand, could be described as the granting of any undue advantage by a public official for himself or herself in exchange for performing an act of corruption relating to his or her public functions.⁴⁰ Article 15 of the Convention prohibits passive and active corruption and mandates the States to take measures to establish as criminal offences:

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(a) active bribery, defined as the promise, offering or giving to a public official of an undue advantage, in order to act or refrain from acting in matters relevant to official duties.⁴¹

(b) passive bribery, defined as the solicitation or acceptance by a public official of an undue advantage, in order to act or refrain from acting in matters relevant to official duties.⁴²

The elements that are necessary to constitute active offence are those promising or offering or actually giving something to a public official. An undue advantage may be something tangible and intangible, whether pecuniary or non-pecuniary.⁴³

The undue advantage, however, must be linked to the official‟s duties. On the other hand, passive bribery requires soliciting and accepting the bribe to constitute an offence. Both offences could be committed either directly or indirectly. Similar provisions could be found in most other anti-corruption treaties as well.⁴⁴

(ii) Corruption by a foreign public official and official of a public international organisation

A “foreign public official” has been defined as “any person holding a legislative, administrative or judicial office of a foreign country, whether appointed or elected; any person exercising a public function for a foreign country, including for a public agency or public enterprise; and any official or agent of a public international organization”.⁴⁵ The UNCAC which drew inspiration from the OECD Convention, however, distinguishes between an “official of a foreign state” (foreign public official) and “official of a public international organization”. It states that “foreign public official” to means “any person holding a legislative, executive, administrative or judicial office of a foreign country, whether appointed or elected; and any person exercising a public function for a foreign country, including for a public agency or public enterprise”. On the other hand, an “official of a public international organisation” is defined as “an international civil servant or any person who is authorised by such an organization to act on behalf of that organisation”.⁴⁶

The Convention under Article 16 covers both passive and active by a corruption foreign public official and official of a public international organisation.

Article 16(1) deals with active corruption, whereas Article 16(2) deals with passive corruption.⁴⁷

The elements of both these offences are similar to those listed in the case of active and passive bribery of national public officials. The only difference is that

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article 16(1) and (2) applies only to foreign public official or official of an international organisation, instead of national public officials, and the offence is linked to the conduct of international business, including international aid. While the State parties must implement active corruption by a foreign public official and official of a public international organisation, the obligation is optional in the case of passive bribery.

Also, this article does not intend to affect the immunities that the foreign public officials or officials of public international organisations may enjoy under international law.

The UNCAC, unlike the Organisation for Economic Co-operation and Development (OECD) Convention, criminalises both active and passive bribery of foreign public officials or officials of public international organisations. On the other hand, the OECD Convention criminalises only active bribery. Further, the OECD Convention makes important exception to active corruption. The OECD Commentaries note that signatories should not treat bribery as an offence where the advantage “was permitted or required by the written law or regulation of the foreign public official‟s country, including case law”.⁴⁸ Nor is it a criminal offence to make “small facilitation payments,” which “does not constitute payments made to, obtain or retain business or other improper advantage”. Such payments are made to induce public officials to perform their functions, such as issuing licenses or permits.⁴⁹

(iii) Embezzlement, misappropriation or diversion of property by a public official Article 17 of the UNCAC deals with diversion⁵⁰ of property⁵¹by a public official.⁵² This provision provides that:

each State Party shall adopt such … measures as may be necessary to establish as criminal offences, … the embezzlement, misappropriation or other diversion by a public official for his or her benefit or for the benefit of another person or entity, of any property, public or private funds or securities or any other thing of value entrusted to the public official by virtue of his or her position.

The offence must cover instances where these acts are for the benefits of the public officials or another persons or entity. The UNCAC establishes an obligation on the State parties to criminalise diversion of property by a public servant. This article has very wide scope of application. The Convention not only deals with the diversion of property, but also with the embezzlement and misappropriation of property.⁵³

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However, this article does not require the prosecution of de minimis offences.⁵⁴ Also, the UNCAC deals extensively with the „embezzlement, misappropriation or other diversion‟ by a public official of any property, public or private funds or securities.⁵⁵

(iv) Trading in influence

Trading in influence generally means the payment of money to public officials/decision makers/politicians to influence, for example, not only their vote in Parliament or committees/commissions of which they are members, but also for asking particular questions or raising issues not related to public interest. Article 18 of the UNCAC deals with improper influencing of any person in public or private sector relating to such person‟s decision-making functions. This Article criminalises:

(a) The promise, offering or giving to a public official or any other person, directly or indirectly, of an undue advantage in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage for the original instigator of the act or for any other person;

(b) The solicitation or acceptance by a public official or any other person, directly or indirectly, of an undue advantage for himself or herself or for another person in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage.

The prohibition under this article is applicable to persons performing functions in the public or private sector. This offence covers both active and passive corruption committed by a person who asserts or confirms that he or she is able to exert any improper influence over the decision making of any person performing functions in the public or private sector. Further, a distinction has to be drawn between the offence covered under Articles 15 and 18. While Article 15 deals with an act or refraining to act by public officials in the course of their duties, under Article 18, the offence involves using ones‟ real or supposed influence to obtain undue advantage for a third person from an administrative or public authority of that State.

(v) Abuse of functions

Article 19 of the UNCAC criminalises the active corruption committed by a public official. This Article provides as follows:

Each State Party shall consider adopting such … measures as may be necessary to establish as a criminal offence, … the abuse of functions or position, that is,

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the performance of or failure to perform an act, in violation of laws, by a public official in the discharge of his or her functions, for the purpose of obtaining an undue advantage for himself or herself or for another person or entity.⁵⁶

This offence may encompass various types of conduct such as improper disclosure by a public official of classified or privileged information.⁵⁷

The obligation imposed upon the States Parties under this provision is optional. The States must only to “„consider adopting‟ such … measures as may be necessary to establish as a criminal offence” active bribery. This in effect means that the State may

“consider” the issue, but may or may not legislate on the issue.

(vi) Laundering of Proceeds of Crime (Money laundering)

The UN Convention deals in detail with the use or concealment of property derived from acts of corruption. Article 23 of the UN Convention deals with the “laundering of proceeds of crime” and Article 24 deals with the “concealment or continued retention”

of property derived from corrupt activities. According to Article 23 States parties must establish the following four offences as crimes:

(a) Conversion or transfer of proceeds of crime;⁵⁸

(b) Concealment or disguise of the nature, source, location, disposition, movement or ownership of proceeds of crime;⁵⁹

(c) acquisition, possession or use of proceeds of crime;⁶⁰ and

(d) participation in, association with or conspiracy to commit, attempts to commit, and aiding, abetting, facilitating and counseling the commission of any of the offences mandated by article 23.⁶¹

In the case of first two offences, the State Parties must establish those offences as crime within their domestic law. In the case of latter two offences, the establishment of these offences within the domestic law is subject to the basic concepts of their legal systems. While implementing or applying these provisions, each State Party shall seek to apply this article to the widest range of predicate offences⁶² and shall include as predicate offences at a minimum a comprehensive range of criminal offences established in accordance with this Convention. In this context, predicate offences shall include offences committed both within and outside the jurisdiction of the State Party in question.

However, offences committed outside the jurisdiction of a State Party shall constitute predicate offences only when the relevant conduct is a criminal offence under the domestic law of the State where it is committed and would be a criminal

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offence under the domestic law of the State Party implementing or applying this article had it been committed there.⁶³

Similarly, Article 24, which deals with the “concealment or continued retention” of property derived from corrupt activities, each Sate Party shall consider establishing as a criminal offence, the concealment or continued retention of property when the person involved knows that such property is the result of any of the offences established in accordance with this Convention. In the case of laundering of proceeding of crime, provisions in the UNCAC are preferred over similar provisions in other similar Conventions. This is because in the UNCAC, the offences are prescribed in much more detail and encourages States to apply the provision “to the widest range of predicate offence”. Another aspect of the UNCAC is that it also urges State Parties to prevent, detect and deter international transfers of illicitly acquired assets in a more effective manner, and to strengthen international cooperation in asset recovery.

Articles 23 and 24 are in line with these objectives of the Convention.⁶⁴The UNCAC also requires that the person who launders or conceals the proceeds of crime must have

“knowledge” that such property is the proceeds of crime before that person commits the crime.

(vii) Participation as accomplice, assistant or instigator and attempt to commit an offence

Article 27 of the UNCAC criminalises participation as accomplice, assistant or instigator and attempt to commit an offence. According to this article, the State parties shall establish the following three criminal offences:

(a) participation in any capacity such as an accomplice, assistant or instigator in an offence established in accordance with this Convention.

(b) any attempt to commit an offence established in accordance with this Convention.

(c) the preparation for an offence established in accordance with this Convention.

Although the foregoing provision makes specific reference only to accomplices, assistants or instigators as possible offenders, the term “participation in any capacity”

in an offence is prohibited. However, under this formulation, States are obligated only to criminalise „participation‟ within their domestic law. Whereas, criminalising attempt and preparation for offences are optional obligations. Further, implementation of this provision is subject to the „domestic law‟ of the implementing State. Furthermore,

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Article 23(1) (b) (ii) of the UNCAC prohibits the “participation in, association with or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the offences” established in accordance with Article 23.⁶⁵

(viii) Illicit enrichment

The term “illicit enrichment” has been defined in the UNCAC as “a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income”.⁶⁶ The definition provided under this Convention is much stronger as it reverses the burden of proof.⁶⁷

In a criminal case of illicit enrichment, which involves unjustified wealth, the prosecution carries the burden of proof and must therefore show beyond reasonable doubt that acquired wealth is not justified by the earnings. However, under the Convention, the prosecution is not legally obligated to show beyond reasonable doubt that wealth exceeds income. Nor does the prosecution necessarily have to show that unjustified earnings are the result of corruption, as it is automatically presumed that unjustified earnings derive from a corrupt source. If implemented, such provisions are likely to face legal challenges, particularly in countries where the presumption of innocence is constitutionally enshrined.

(ix) Funding of political parties

Financing of political parties and corruption in election are the two issues which are of crucial importance in the anti-corruption debate. The problem of political funding is that there is a temptation to divert the funds for personal use, they could be used to purchase vote, and would encourage favouritism towards the fund giver. The UNCAC, unfortunately, does not contain a prohibition relating to the use of funds acquired through illegal and corrupt practices to finance political parties.

However, a diluted version of deleted draft Article 10 was incorporated in paragraph 3 of Article 7 (Corruption in Public Sector). Article 7(3) requires each State Party to consider taking appropriate measures to enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties. Furthermore, Article 7(4) of the UNCAC requires that each State party must endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest.⁶⁸

103 (x) Obstruction of justice

Obstruction of justice is another act of corruption provided under Article 25 of the UNCAC which requires State parties to adopt measures necessary to establish obstruction of justice as a criminal offence. The provision covers the following two criminal offences:

(a) The use of physical force, threats or intimidation or the promise, offering or giving of an undue advantage to induce false testimony or to interfere in the giving of testimony or the production of evidence in a proceeding in relation to the commission of offences established in accordance with the UN Convention.

(b) The use of physical force, threats or intimidation to interfere with the exercise of official duties by a justice or law enforcement official in relation to the commission of offences established in accordance with the UN Convention.

The first offence relates to efforts to influence potential witness and others in a position to provide the authorities with relevant evidence. The second offence requires States to establish is the criminalisation with of interference with the actions of judicial and law enforcement officials.

(xi) Knowledge, intent and purpose as elements of an offence

Article 28 of the UNCAC provides that “knowledge, intent or purpose required as an element of an offence established in accordance with the UN Convention may be inferred from objective factual circumstances”. This is similar to the “willful ignorance standard” in the United States that is used in many criminal contexts, including corruption and money laundering.

(xii) False and malicious reporting

As in the case of protection of reporting person (whistleblowers protection) there is also need to safeguard the officials against frivolous, vexatious and malicious allegations. In this regard, a law should make punishable those indulging in false and malicious reporting. However, it should be made clear that false and malicious reporting in „good faith‟ will not be punishable. The UNCAC does not provide that State Parties must undertake to adopt national legislative measures in order to punish those who make false and malicious reports against innocent persons in corruption and related offences, unlike under Article 5(7) in the AU Convention. However, the UNCAC contains provisions which require adoption of such measures against: