A few weeks ago, this column ran three articles on the United Nations Convention Against Corruption to which Guyana acceded in 2008. There is an earlier convention which Guyana ratified in December 2000, that is, the Inter-American Convention Against Corruption (IACAC). Today, we begin our examination of IACAC.
Preamble
The preamble to IACAC makes some important points about corruption. It states that corruption undermines the legitimacy of public institutions and strikes at society, moral order and justice, as well as at the comprehensive development of peoples. Representative democracy, an essential condition for stability, peace and development of the region, requires, by its nature, the combating of every form of corruption in the performance of public functions. In addition, fighting corruption strengthens democratic institutions and prevents distortions in the economy, improprieties in public administration and damage to a society’s moral fibre.
Corruption is often a tool used by organized crime to accomplish its purposes. In some cases, corruption has international dimensions, which requires coordinated action by States to fight it effectively. There are steadily increasing links between corruption and the proceeds generated by illicit narcotics trafficking which undermine and threaten legitimate commercial and financial activities, and society, at all levels. There is therefore a need for an international instrument to promote and facilitate international cooperation in fighting corruption, including taking appropriate action against persons who commit acts of corruption in the performance of public functions, as well as with respect to the proceeds of such acts.
People in the countries of the region should be made aware of the problem of corruption and its gravity, and of the need to strengthen participation by civil society in preventing and fighting corruption. It is the responsibility of States to hold corrupt persons accountable in order to combat corruption and to cooperate with one another if their efforts in this area are to be effective. Every effort should therefore be made to prevent, detect, punish and eradicate corruption in the performance of public functions and acts of corruption specifically related to such performance.
Objectives of IACAC
The main objectives of IACAC are: (a) to promote and strengthen the development of the mechanisms needed to prevent, detect, punish and eradicate corruption; and (b) to promote, facilitate and regulate cooperation among the Member States to ensure the effectiveness of measures and actions to prevent, detect, punish and eradicate corruption in the performance of public functions.
Preventive Measures
Member States have agreed to consider applying certain measures to create, maintain and strengthen standards of conduct for the correct, honourable, and proper fulfillment of public functions. These standards are intended to prevent conflicts of interest and ensure the proper conservation and use of resources entrusted to government officials in the performance of their functions. The standards are to include measures and systems requiring government officials to report to the appropriate authorities acts of corruption in the performance of public functions. Such measures should help preserve the public’s confidence in the integrity of public servants and government processes.
There should be mechanisms to enforce these standards of conduct, such as instructions to government personnel to ensure proper understanding of their responsibilities and the ethical rules governing their activities. A key element is a system for the declaration of the income, assets and liabilities of persons who perform public functions in certain posts and, where appropriate, for making such declarations public.
Member States are to put in place systems for government hiring as well as for the procurement of goods and services that ensure the openness, equity and efficiency of such systems. Adequate procedures should also be in place for government revenue collection and control systems that deter corruption, and laws are to be promulgated that deny favourable tax treatment for any individual or corporation for expenditures made in violation of the anti-corruption laws of Member States. In addition, there should be systems for protecting public servants and private citizens who, in good faith, report acts of corruption, including protection of their identities. Another key element is the establishment of oversight bodies with a view to implementing modern mechanisms for preventing, detecting, punishing and eradicating corrupt acts.
An important preventive measure relates to deterrents to the bribery of domestic and foreign government officials, such as mechanisms to ensure that publicly held companies and other types of associations maintain books and records which, in reasonable detail, accurately reflect the acquisition and disposition of assets, and have sufficient internal accounting controls to enable their officers to detect corrupt acts. There should also be mechanisms to encourage participation by civil society and non-governmental organizations in efforts to prevent corruption. Finally, it is desirable for studies to be conducted of further preventive measures that take into account the relationship between equitable compensation and probity in public service.
Applicability to acts of corruption
IACAC is applicable to the following acts of corruption:
* The solicitation or acceptance, directly or indirectly, by a government official or a person who performs public functions, of any article of monetary value, or other benefit, such as a gift, favour, promise or advantage for himself/herself or for another person or entity, in exchange for any act or omission in the performance of his/her public functions;
* The offering or granting, directly or indirectly, to a government official or a person who performs public functions, of any article of monetary value, or other benefit, such as a gift, favour, promise or advantage for himself/herself or for another person or entity, in exchange for any act or omission in the performance of his/her public functions;
* Any act or omission by a government official in the performance of his/her duties, or a person who performs public functions for the purpose of illicitly obtaining benefits for himself/herself or for a third party;
* The fraudulent use or concealment of property derived from any of the acts referred to above; and
* Participation as a principal, co-principal, instigator, accomplice or accessory after the fact, or in any other manner, in the commission or attempted commission of, or in any collaboration or conspiracy to commit, any of the acts referred to above.
Transnational bribery
Member States are required to prohibit and punish the offering or granting, directly or indirectly, by its nationals, persons having their habitual residence in its territory, and businesses domiciled there, to a government official of another State, of any article of monetary value, or other benefit, such as a gift, favour, promise or advantage, in connection with any economic or commercial transaction in exchange for any act or omission in the performance of that official’s public functions.
Among those Member States that have established transnational bribery as an offence, such offence is to be considered an act of corruption. Any Member State that has not established transnational bribery as an offence is required to, provide assistance and cooperation with respect to this offence.
Illicit enrichment
A Member State that has not yet done so is to take the necessary measures to establish under its laws as an offence a significant increase in the assets of a government official that he/she cannot reasonably explain in relation to his/her lawful earnings during the performance of his/her functions. Among those Member States that have established illicit enrichment as an offence, such offence is to be considered an act of corruption. A Member State that has not established illicit enrichment as an offence is to provide assistance and cooperation with respect to this offence.
When a Member State adopts legislation relating to transnational bribery and illicit enrichment, it must notify the Secretary General of the Organization of American States, who shall in turn notify the other Member States. These crimes are to be considered acts of corruption for that Member State thirty days following the date of such notification.
Progressive development
In order to foster the development and harmonization of their domestic legislation and the attainment of the purposes of the Convention, the Member States have agreed to consider establishing as offences under their laws the following acts:
* The improper use by a government official or a person who performs public functions, for his own benefit or that of a third party, of any kind of classified or confidential information which that official or person who performs public functions has obtained because of, or in the performance of, his functions;
* The improper use by a government official or a person who performs public functions, for his own benefit or that of a third party, of any kind of property belonging to the State or to any firm or institution in which the State has a proprietary interest, to which that official or person who performs public functions has access because of, or in the performance of, his/her functions;
* Any act or omission by any person who, personally or through a third party, or acting as an intermediary, seeks to obtain a decision from a public authority whereby he/she illicitly obtains for himself/herself or for another person any benefit or gain, whether or not such act or omission harms State property; and
* The diversion by a government official, for purposes unrelated to those for which they were intended, for his/her own benefit or that of a third party, of any movable or immovable property, monies or securities belonging to the State, to an independent agency, or to an individual, that such official has received by virtue of his position for purposes of administration, custody or for other reasons.
To be continued
