Last week, we discussed the proposed amendments to the Anti Money Laundering and Countering the Financing of Terrorism (AML/CFT) Act of 2009. We stated that, while the amendments are necessary to bring the existing legislation in line with international best practice, care needs to be taken not to rush into passing them in order to meet the deadline set. We also expressed concern that many of the requirements of the existing legislation have not been implemented, especially as regards the operations of the Financial Intelligence Unit which is the backbone of the AML/CFT Act.
In addition, since corruption facilitates money laundering, we suggested the adoption of a three-pronged approach. This involves: (a) the National Assembly’s approval of the amendments to the AML/CFT Act after careful scrutiny by the Parliamentary Select Committee and making further amendments, as appropriate; (b) the appointment of the members of the Public Procurement Commission and the Integrity Commission who are independent and professionally competent; and (c) the provision of adequate resources to enable these two commissions to discharge their responsibilities in an efficient and effective manner.
We note with appreciation President Ramotar’s announcement that the new deadline for compliance with the Caribbean Financial Action Task Force’s recommendations is now set for November 2013. This will enable the National Assembly to carry out a thorough review of the proposed amendments to ensure that there are no further gaps in legislation as we confront the twin scourge of money laundering and terrorist financing. We are, however, disappointed at a Government statement, suggesting that Cabinet wants to retain its existing control over the award of contracts for the procurement of goods and services and the execution of works. This will nullify the effect of the constitutional amendment of 2001 that establishes the Public Procurement Commission.
Today, we examine the United Nations Convention Against Corruption (UNCAC) that Member States adopted on 31 October 2003 via General Assembly resolution 58/4 and brought into force at a signing ceremony in Mexico on 9 December 2003. It is the first legally binding international anti-corruption instrument to which Guyana acceded five years later on 16 April 2008.
The resolution referred to the World Summit on Sustainable Development in South Africa where corruption was declared a threat to sustainable development of people. Accordingly, the General Assembly expressed concern about “the seriousness of problems and threats posed by corruption to the stability and security of societies, undermining the institutions and values of democracy, ethical values and justice, and jeopardising sustainable development and the rule of law”.
Foreword and preamble to UNCAC
Former UN Secretary-General, Kofi Annan, asserted that corruption is “an insidious plague that has a wide range of corrosive effects on society. It undermines democracy and the rule of law, leads to violations in human rights, distorts markets, erodes the quality of life and allows organized crime, terrorism and other threats to human society to flourish…It hurts the poor disproportionately by diverting funds intended for development, undermining a Government’s ability to provide basic services, feeding inequality and injustice and discouraging foreign aid and investment. Corruption is a key element in economic underperformance and a major obstacle to poverty alleviation and development”.
Mr. Annan stated that UNCAC’s adoption will warn the corrupt that betrayal of the public trust will no longer be tolerated and that it will reaffirm the importance of core values such as honesty, respect for the rule of law, accountability and transparency in promoting development, and making the world a better place for all. He suggested that if the Convention is fully enforced, it will make a real difference to the quality of life of millions of people around the world, and by removing the biggest obstacles to development, it can help achieve the Millennium Development Goals.
In the preamble to the Convention, the General Assembly expressed concern about: (a) the links between corruption and other forms of crime, including money laundering; and (b) cases of corruption that involve vast quantities of assets, which may constitute a substantial portion of the resources of States. The preamble also considered that corruption is no longer a local matter but a transnational phenomenon that affects all societies and economies, making international cooperation to prevent and control it essential.
In addition, the General Assembly stated that it is convinced that the illicit acquisition of personal wealth can be particularly damaging to democratic institutions, national economies and the rule of law. Accordingly, it asserted that the prevention and eradication of corruption is a responsibility of all States. As such, they must cooperate with one another, with the support and involvement of individuals and groups outside the public sector, such as civil society, non-governmental organizations and community-based organizations, if their efforts in this area are to be effective.
The Assembly also took note with appreciation of multilateral instruments to prevent and combat corruption. These include the Inter American Convention on Corruption (29 March 1996); the European Union Convention on Corruption (26 May 1997); OECD Convention on Combating Bribery (27 November 1997); the African Union Convention on Preventing and Combating Corruption (12 July 2003); and the UN Convention against Transnational Crimes (29 September 2003).
We begin our examination of the actual Convention by highlighting the preventive measures to combat corruption, as detailed in Chapter II.
Anti-corruption policies and practices in general
Member States are required to develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability.
The Convention specifically refers to the establishment of a body or bodies to promote effective practices aimed at preventing corruption. These bodies should be granted the necessary independence to carry out their functions effectively, free of undue influence. They should also be provided with adequate resources, specialized staffing and relevant training. Member States are to evaluate periodically relevant legal instruments and administrative measures to determine their adequacy to fight and prevent corruption.
Preventive anti-corruption measures in the public sector
Member States are required to adopt, maintain and strengthen systems for the recruitment, hiring, retention, promotion and retirement of civil servants and non-elected officials based on:
(a) Efficiency, transparency and objective criteria such as merit, equity and aptitude;
(b) Adequate procedures for selection and training for positions vulnerable to corruption as well as the rotation of officials involved;
(c) Adequate remuneration and pay scales, taking into account the Member State’s economic development;
(d) Promoting education and training programmes, including specialized training, on the awareness of the risk of corruption; and
(e) Taking disciplinary measures for any violation of established codes and standards of conduct.
The Convention advocates for criteria to be prescribed concerning candidature for and selection to public office, enhanced transparency in the funding of candidates for elected public office, and funding of political parties. It also requires adopting, maintaining and strengthening systems that promote transparency and prevent conflicts of interest.
Other considerations include: (a) promoting integrity, honesty and responsibility among public officials in order to fight corruption; (b) applying codes or standards of conduct for the correct, honourable and proper performance of public functions; and (c) establishing measures and systems to facilitate reporting by public officials of acts of corruption that have come to their notice in the performance of their duties.
Member States are required to promote transparency and accountability in relation to:
●The adoption of the national budget;
Timely reporting of revenue and expenditure;
●Accounting and auditing standards and related oversight;
●Efficient and effective systems of risk management and internal controls;
●Preservation of the integrity of accounting records and related documents to prevent falsification; and
●Measures and systems requiring public officials to make declarations to the appropriate authorities regard- ing outside activities, employment, investments, assets and substantial gifts or benefits from which conflict of interest may result.
In the area of public procurement, appropriate systems are required to be established, based on transparency, competition and objective criteria in decision-making that are effective in preventing corruption. An important element is the use of objective and predetermined criteria in procurement decisions to facilitate subsequent verification of the correct application of the rules or procedures as well as an effective system of appeal, including legal recourse and remedies, by any aggrieved party.
The Convention advocates simplified access by members of the public to information on government programmes and activities, including the functioning of public entities, their decision-making processes and their decisions, subject to consideration regarding the protection of privacy and personal data. It also requires the publication of periodic reports on the risk of corruption in public administration.
To be continued
