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14. The Revised Recommendation of the OECD Council on Combating Bribery in International Business Transactions A first Recommendation on Bribery in International Business Transactions was adopted already in 1994. In spring 1997, the OECD Working Group on Bribery reviewed this Recommendation and issued a revised version, which was adopted by the OECD Council on 23 May 1997. This document pulls together analytic work on anti-corruption measures and commitments undertaken over the previous three years to combat bribery in international business transactions. As the expression of a common political position, it is an important vehicle to encourage action by Member countries. Its implementation is granted as it includes provisions concerning monitoring and other follow-up procedures designed to promote their implementation. The Revised Recommendation invites member countries to '"take effective measures to deter, prevent and combat" international bribery in a number of areas. In particular, it elaborates commitments in the fields of: criminalisation of bribery of <strong>for</strong>eign public officials; accounting, banking, financial and other provisions, to ensure that adequate records are kept and made available <strong>for</strong> inspection and investigation; and public subsides, license, government-procurement contracts or other public advantage that could be denied as sanctions <strong>for</strong> bribery in appropriate cases. It also urges prompt implementation of the 1996 Recommendation on the Tax Deductibility of Bribes to Foreign Public Officials and incorporates the proposals contained in the 1996 Recommendation by the Development Assistance Committee on <strong>Anti</strong>-<strong>Corruption</strong> Proposals <strong>for</strong> Aid-Funded Procurement. 15. African Union Convention on Preventing and Combating <strong>Corruption</strong> The African Union's Ministerial Conference held in Addis Ababa on 18-19 September 2002 approved the Draft African Convention on Preventing and Combating <strong>Corruption</strong>. This new convention contains provisions that should guarantee access to in<strong>for</strong>mation and the participation of civil society and the media in the monitoring process. Also noteworthy is an article, which seeks to ban the use of funds acquired through illicit and corrupt practices to finance political parties; and an article, which requires state parties to adopt legislative measures to facilitate the repatriation of the proceeds of corruption. The African Union encouraged the participation of civil society in the drafting and deliberation of the convention. The convention was presented to heads of state <strong>for</strong> adoption at the AU summit in June 2003 in Maputo, Mozambique. 16. SADC Convention on Prevention and Combating <strong>Corruption</strong> At any level, it has always been a fact of life that borders are porous no matter how well patrolled and, in this region, electrically fenced. Wars and strife in this region have also presented opportunities to all manner of smugglers and criminal organizations. These range from the bribing of customs officials at border posts and harbours to compromising immigration officers and anyone else in between. The seriousness of the problems created resulted in the SADC passing the <strong>Anti</strong>-corruption Protocol (the Protocol), which enjoins member states to pass relevant legislation as a priority. At a continental level, the Africa Governance Forum, scheduled as an annual event, is designed ‘to pursue collaborative and coordinated programmes in support of good governance’. The background to the Protocol is set <strong>for</strong>th as follows: The Southern African Development Community (SADC) Protocol Against <strong>Corruption</strong> was adopted by the SADC Heads of State and Government at their August 2001 Summit held in Malawi making it the first sub-regional anti-corruption treaty in Africa. The SADC Protocol follows in the wake of the Inter-American Convention Against <strong>Corruption</strong> of 1996, the European Convention on the Fight Against <strong>Corruption</strong> of 1997, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions also of 126
1997 from which it derives inspiration, thus adding an African perspective in the globalisation of the fight against corruption. 81 A leading NGO in this region, the Human Rights Trust of Southern Africa (SAHRIT) coordinated the lobbying of the SADC governments in order to support the Protocol which was adopted at a summit of heads of state in Blantyre in August 2001. The protocol has been described by SAHRIT as having a threefold purpose: (a) To promote the development of anti-corruption mechanisms at national level; (b) To promote cooperation in the fight against corruption by state parties; and (c) To harmonise anti-corruption national legislation in the SADC region. The Protocol provides a range of preventive mechanisms, which include the following: • Development of a code of conduct <strong>for</strong> public officials • Transparency in public procurement of goods and services • Easy access to public in<strong>for</strong>mation • Protection of whistle-blowers • Establishment of anti-corruption agencies • Developing systems of accountability and controls • Participation of the media and civil society; and • Use of public education and awareness as a way of introducing zero tolerance <strong>for</strong> corruption. 82 In addition the Protocol also: Addresses the issue of proceeds of crime by allowing <strong>for</strong> their confiscation and seizure thereby making it more difficult to benefit from proceeds of corruption. It makes corruption or any of the offences under it an extraditable offence making it difficult <strong>for</strong> criminals to have a haven in one of the SADC countries. More so the protocol can be a legal basis <strong>for</strong> extradition in the absence of a bilateral extradition treaty. The SADC Protocol also provides <strong>for</strong> judicial cooperation and legal assistance among state parties. This is important as corruption often involves more than one country. 83 Importantly, in terms of Article 7 of the Protocol, ‘State Parties undertake, to the extent possible, to develop and harmonise their policies and domestic legislation <strong>for</strong> the attainment of the purpose of this Protocol. Each State Party shall adopt the necessary legislative or other measures to establish as criminal offences under its domestic law the acts of corruption described in Article 3.’ It would be instructive; there<strong>for</strong>e, to establish how many SADC countries have taken steps towards implementing the vision of the Protocol. South Africa, <strong>for</strong> example, had published the ‘Prevention of <strong>Corruption</strong> Bill’ just 8 months after adoption of the Protocol. 84 The Bill has been described as <strong>for</strong>ming ‘part of a carefully designed legislative response to the increasing waves of internal and trans-national commercial and property-related crimes that have struck South Africa in the past ten years.’ 85 Other laws promulgated as part of a package aimed at combating national and international crime included the Prevention of Organised Crime Act No. 121 of 1998 and the Financial Intelligence Centre Act No. 108 of 1996. The latter statute enjoins banks and financial 81 Phil Matsheza-Human Rights Trust of Southern Africa, SADC Protocol Against <strong>Corruption</strong> ‘Making it Work’ Africa Workshop: Prague, The Czech Republic: 9th October 2001 82 Supra 83 Supra 84 Explanatory summary of the Bill [B19 – 2002] published in Government Gazette No 23336 of 18 April 2002. 85 Professor R. Palmer ‘Amended National Report <strong>for</strong> South Africa: Fighting International and National <strong>Corruption</strong> by Means of the Criminal Law’ –paper presented at XVI Congress of the International Academy of Comparative Law: Brisbane, Australia, 2002. 127
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Disclaimer The views expressed here
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FOREWORD United <s
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UNITED NATIONS CON
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Chapter IV International cooperatio
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TABLE OF CONTENTS FOREWORD ACKNOWLE
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VIII. DEALING WITH THE ILLICIT TRAN
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I INTRODUCTION A. Background The <s
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of the Commission for</stro
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major policy agendas of the countri
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Where the primary focus of the <str
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Definitions also vary depending on
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In both cases, corruption may exist
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Commercial dealings are no longer c
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Corruption is both
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Once bribery has occurred, it can l
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Employees or officials with access
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9. Improper political contributions
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• The rule of law. As many of the
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combat corruption will lack credibi
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which has resulted in excellent nat
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offset real or perceived advantages
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Evidence that corruption is being r
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also the development of an independ
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as statutes creating anti-corruptio
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elements will involve the selection
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The major disadvantages 37 include
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These may include: • Constitution
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V. PREVENTION A. Introduction The p
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The lack of adequate financial and
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4. Employee culture and motivation,
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are common to most if not all burea
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Proactive measures against conflict
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10. Disclosure of Assets Requiring
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VI. AWARENESS RAISING AND PUBLIC PA
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formats, and the a
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2. The messages to be delivered Dep
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a. Political and legislative measur
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