Two weeks ago, we began our discussion of the UN Convention Against Corruption that Member States adopted in December 2003. It is the first legally binding and comprehensive anti-corruption instrument at a global level. The Convention came into force in 2005, and Guyana acceded to it in April 2008.
We highlighted the main concerns of the General Assembly about the effects of corruption as contained in its resolution on the matter. We also summarized the foreword and the preamble to the Convention, and we highlighted the key requirements of Chapter II dealing with preventive measures to combat corruption. However, because of space restrictions we were unable to complete the exercise. This we now do. We will then move on to Chapter III dealing with criminalization and law enforcement.
Judiciary and prosecution services
Parties to the Convention are to take steps to strengthen the integrity of the judiciary and to prevent opportunities for corruption among its members, bearing in mind the independence of the judiciary and its crucial role in combating corruption. Such measures may include rules with respect to the conduct of members of the judiciary.
Similar measures are to be introduced and implemented in respect of the prosecution services.
Measures relating to the private sector
Enhancing accounting and auditing standards for the private sector is a key requirement, in addition to providing “effective, proportionate and dissuasive civil, administrative or criminal penalties” for failure for non-compliance with these standards. In addition, a significant degree of cooperation between law enforcement agencies and the relevant private entities is needed, and standards and procedures are to be put in place to safeguard the integrity of private entities, including codes of conduct for the proper performance of activities of business and the prevention of conflicts of interest. Other measures include;
Adopting good commercial practices among businesses as well as those with contractual relations with the State;
Promoting transparency among entities, especially as regards the identity of persons involved in establishing and managing corporate entities;
Preventing the misuse of regulatory procedures, including those relating to subsidies and licences granted by public authorities for commercial activities;
Preventing conflicts of interest by imposing restrictions on the professional activities of former public officials or on the employment of public officials by the private sector after their resignation or retirement, where such activities or employment relate directly to the functions held or supervised by those public officials during their tenure;
Ensuring that private enterprises have sufficient internal auditing controls to assist in preventing and detecting acts of corruption, and that the accounts and required financial statements are subject to appropriate auditing and certification procedures; and
Ensuring the proper books of account and related records are maintained, there are adequate financial statement disclosures, and appropriate accounting and auditing standards are used to prohibit, among others: (a) off-the-books accounts; (b) recording of non-existent expenditure; (c) the use of false documents; and (d) tax deductibility of expenses that constitute bribes.
Participation of society
Participation of civil society is indispensable to fighting corruption. Member States are to promote the active participation of individuals and groups outside the public sector, such as non-governmental organizations and community-based organizations and to raise public awareness regarding the existence, causes and gravity of and the threat posed by corruption. This participation should be strengthened by such measures as:
Enhancing the transparency of and promoting the contribution of the public to decision-making processes;
Ensuring that the public has effective access to information;
Undertaking public information activities that contribute to non-tolerance of corruption, as well as public education programmes, including in school and university curricula; and
Respecting, promoting and protecting the freedom to seek, receive, publish and disseminate information concerning corruption, subject to certain safeguards such as national security and personal privacy.
It is also important that the relevant anti-corruption bodies are known to the public so as to provide the latter with access for reporting incidents that may constitute an offence under the Convention.
Measures relating to money-laundering
A comprehensive domestic regulatory and supervisory regime is to be instituted for banks and non-bank financial institutions as well as other bodies particularly susceptible to money laundering, that transmit money or value. This includes beneficial owner identification, record-keeping and the reporting of suspicious transactions, and cooperation and exchange of information among administrative, regulatory, law enforcement and other authorities dedicated to combating money-laundering.
A particularly important requirement is the establishment of a financial intelligence unit to serve as a national centre for the collection, analysis and dissemination of information regarding potential money-laundering. Also necessary is the implementation of feasible measures to detect and monitor the movement of cash and appropriate negotiable instruments across borders, subject to safeguards to ensure proper use of information, and without impeding in any way the movement of legitimate capital. This may involve a requirement for individuals and businesses to report the cross-border transfer of substantial quantities of cash and appropriate negotiable instruments. Other measures include:
Implementing appropriate and feasible measures to require financial institutions, including money remitters, to include on forms for the electronic transfer of funds, accurate and meaningful information on the originator;
Applying enhanced scrutiny to transfers of funds that do not contain complete information on the originator;
Using as a guideline the relevant initiatives of regional, interregional and multilateral organizations against money-laundering; and
Developing and promoting global, regional, sub-regional and bilateral cooperation among judicial, law enforcement and financial regulatory authorities in order to combat money-laundering.
We now turn to Chapter III dealing with criminalization and law enforcement.
Bribery, embezzlement, abuse of functions and other related acts
Member States are to establish as criminal offences, when committed intentionally: (a) the promise, offering or giving to a public official/entity, directly or indirectly, of an undue advantage to influence that official/entity to act or refrain from acting in the exercise of official duties/functions; and (b) the solicitation or acceptance by a public official/entity, directly or indirectly, of an undue advantage to influence that official/entity to act or refrain from acting in the exercise of official duties/functions.
Similar measures are to be in place for: (a) the private sector officials, including the embezzlement of any property or other assets entrusted to them by virtue of their positions; and (b) foreign public officials and officials of public international organisations to obtain or retain business or other undue advantage.
Also to be criminalized, when committed intentionally, are: (a) the abuse of functions or position, i.e. 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/herself or for another person or entity; and (b) illicit enrichment, i.e. a significant increase in the assets of a public official that he/she cannot reasonably explain in relation to his/ her lawful income.
Laundering of proceeds of crime
Member States are to take measures to establish as criminal offences, when committed intentionally, conversion or transferring property, knowing that such property is the proceeds of crime, for the purpose of concealing or disguising the illicit origin of the property or of helping any person who is involved in committing the predicate offence to evade the legal consequences of his or her action. Similar measures are needed in respect of:
Concealing or disguising the true nature, source, location, disposition, movement or ownership of or rights with respect to property, knowing that such property is the proceeds of crime;
Acquiring, possessing or using property, knowing at the time of receipt, that such property is the proceeds of crime; and Participating in, associating with or conspiring to commit, attempting to commit and aiding, abetting, facilitating and counseling the commission of any offence.
Copies of such laws that give effect to the measures and of any subsequent changes are to be forwarded to the Secretary-General of the United Nations. Also to be noted is that predicate offences include offences committed both within and outside the jurisdiction of the Member State. However, an offence committed outside the jurisdiction of the Member State shall constitute a predicate offence only when it is a criminal offence under the domestic law of both jurisdictions.
Concealment and obstruction of justice
Member States are to implement measures to establish as a criminal offence, when committed intentionally, concealing or retaining property when the person involved knows that such property is the result of any of the offences established under the Convention.
Similar measures are required for offences, when committed intentionally, involving: (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 producing evidence in a proceeding relating to the commission of offences; and (b) the use of physical force, threats or intimidation to interfere with the exercise of official duties by a justice or law enforcement official relating to the commission of offences.
Effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions, are also to be in place for these offences.
