CAPITULO IV GEOLOGIA LOCAL
5.3.2.7.1 REGISTRO DEL SONDAJE DLEP-A
This section analyses the role of international anti-corruption law (treaties and
conventions) in the international fight against corruption. It should be noted that whereas international law in this area has been developing for some time, it was not until 2005 that the first United Nations Convention against Corruption was enacted and subsequently ratified by Uganda. Although the country had earlier on acceded to the African Peer Review Mechanism in 2003, it did not undertake a self-assessment until 2007-8. The analysis in this section is therefore a brief tentative one that looks at the potential and
189 Global Integrity‘s story, at http://www.globalintegrity.org/aboutus/story.cfm, last accessed 22 February 2011. 190 See description of Global Integrity‘s methodology, at http://report.globalintegrity.org/methodology.cfm, last
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possibilities rather than impact. After a historical overview, an analysis of the opportunity and threats presented by international anti-corruption law is proffered.191
2.3.1 A historical overview of the making of international anti-corruption law
Aside from the aid conditionality, the growing significance of anti-corruption in Uganda and in the world at large can be attributed to the exponential rise in the number of
international treaties against corruption that have been concluded since the 1990s. Although the 1990s are recognised as the decade where corruption became an important item on the international agenda, these efforts were by no means the first global attempt to address corruption through international treaties. The global community had, since the 1960s, become concerned with bribery and its effects on international business. In 1975, the General Assembly of the United Nations passed resolution 3514 on ―Measures against Corrupt Practices of Transnational and Other Corporations, Their Intermediaries and Others Involved.‖ In 1980, a draft Convention on Illicit Payments was drafted by the UN in accordance with the recommendations of the Working Group. However, the Convention was never adopted due to a lack of consensus in the international community regarding issues such as the criminality of corporations and the measures to be taken against corporations involved in corrupt practices.
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The analysis is undertaken from an opportunities and threats standpoint because of its limited relevance to the phenomenon under study. Corruption-related commissions of inquiry in Uganda pre-dated the UNCAC of 2005 by several years. Hence it would be misplaced to credit the UNCAC and other treaties such as the APRM for
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In the meantime, the US had, in 1977, passed the Foreign Corrupt Practices Act.192 This in turn was a result of the findings of the U.S. Securities and Exchange Commission
investigations in the mid-1970s conducted in the aftermath of the Watergate scandal. The investigations found that over 400 U.S. companies had made questionable or illegal payments to foreign government officials, politicians, and political parties. One of the most notorious examples was the Lockheed bribery scandal, in which officials of
aerospace company Lockheed paid foreign officials from various governments including Germany, Italy, the Netherlands and Japan to favour their company's products.193
Congress enacted the FCPA to end the bribery of foreign officials and to restore public confidence in the integrity of the American businesses. Following the enactment of the FCPA, American businesses started to feel disadvantaged in global markets, due to the threat of criminal penalties for engaging in foreign bribery brought about by this Act. The US government thus became a leading advocate for the creation of international standards to limit cross-border bribery in order to alleviate the under-cutting of American businesses in international transactions.
However, it was not until 1996 that the UN made another attempt to address corruption in the form of the Declaration against Corruption and Bribery in International Business Transactions. Also in 1996, the member States of the Organisation of American States
192 15 U.S.C. §§ 78dd-1, et seq. 193
See ―Scandals: Lockheed‘s Defence: A right to bribe?‖ Time Magazine, Monday Aug. 18, 1975, at
http://www.time.com/time/magazine/article/0,9171,917751-1,00.html, accessed 17 January 2010. See also, ―Japan: Bribery Shokku at the top,‖ Time Magazine, Monday Aug. 09, 1976,
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passed the OAS Convention against Corruption, which was the first international anti- corruption treaty. In 1997, the UN adopted a Code of Conduct for Public Officials. That same year, the Organisation for Economic Cooperation and Development (OECD) adopted a Convention on Combating Bribery of Foreign Public Officials in International Business. The European Union also adopted a Convention against Corruption involving Officials of the European Communities or Officials of Member States in 1997. In 1999, the Council of Europe adopted two Criminal and Civil Law Conventions on Corruption. In 2000, the UN adopted the Convention on Transnational Organized Crime, and in 2003, member states of the African Union adopted the African Union Convention on Preventing and Combating Corruption. This was later that same year buttressed by the African Peer Review Mechanism (APRM), of the New Partnership for Africa Development (NEPAD) under which African States agreed to self-monitoring process to track the extent of their adherence to a wide range of African and international human rights treaties and
standards.194 Hailed as a ―welcome addition to pan-African institutional structure,‖195 and ―the most innovative aspect of the NEPAD,‖196
its impact on curtailing corruption in Africa at large and Uganda in particular remains to be seen.197 The Declaration establishing the mechanism reproduces or reiterates elements of the good governance
194 See Hope, SR, K. R. (2005), ―Toward Good Governance and Sustainable Development: The African Peer Review
Mechanism.‖ Governance, 18: 283–311.
195 Kanbur, R. (2004), ―The African Peer Review Mechanism: An Assessment of Concept and Design,‖ Politikon:
South African Journal of Political Studies 31(2):157- 166.
196
Cilliers, J (2002) NEPAD’s Peer Review Mechanism, Institute for Security Studies Paper 64.
197 For an assessment of the APRM, see Kanbur, note 177 op. cit and Kajee, A., (2003/4) ―Nepad‘s APRM: A
Progress Report – Practical Limitation and Challenges,‖ South African Yearbook of International Affairs pp. 243-258. See also Herbert, R. & S. Gruzd (2008), The African Peer Review Mechanism: Lessons from the Pioneers.
Johannesburg: South African Institute of International Affairs; Odoi, N. J. (2008) The Politics of Reform: The Role of the APRM in Uganda, South Africa Institute of International Affairs. I have not considered it in depth here because even though Uganda acceded to it in 2003, it only completed its self-assessment report in 2007 and submitted it in 2008.Thus, APRM had minimal influence on the corruption-related inquiries analysed in this thesis.
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discourse, proclaiming the commitment of African States to ―just, honest, transparent, accountable and participatory government and probity in public life.‖198
In 2003, the UN finally adopted the first universal convention against corruption, thereby marking the apex of a decade of international anti-corruption law-making. The passing of these numerous treaties and declarations is evidence that there is indeed an emerging global consensus that corruption is a problem that must be addressed. Despite the enormous opportunity that these treaties represent, there are a number of problems that may present challenges to the implementation of the treaties. While it is beyond the scope of this thesis to delve into an in-depth analysis of each treaty, the next section provides a summary of the key elements of international anti-corruption law and a general appraisal of the opportunities and threats therein as elaborated in existing academic literature.
2.3.2 Key features of international anti-corruption law
The international law against corruption proposes a criminal law approach to dealing with corruption. For purposes of analysis, only the UNCAC will be relied on because it is currently the most universal international anti-corruption treaty. The UNCAC identifies the following types of behaviour as criminal offences: bribery of national public sector officials; bribery of foreign public sector officials; bribery of officials of public
international organisations; illicit enrichment by a public official, evidenced by ―a
198African Union Declaration on Democracy, Political, Economic and Corporate Governance, adopted by the
Assembly of Heads of State and Government, 38th Ordinary Session of the OAU, Durban, South Africa, AHG 235/XXXVIII.
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significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income‖; embezzlement, misappropriation or other diversion of property by a public official; trading in influence; abuse of functions; bribery of private sector decision-makers; embezzlement by persons working in private sector entities; nepotism and favouritism in public sector recruitment and promotion.199 Also criminalised are laundering the proceeds of corruption, concealment or continued retention of the proceeds of crime; aiding and abetting corruption and obstruction of justice.200
Unfortunately, the UNCAC does not specifically prescribe sanctions; preferring to leave the matter to be determined by domestic law. It is explicit in recommending prevention of corruption measures, which include exceptions to bank secrecy, prevention and detection of transfer so the proceeds of crime, recommending the establishment of financial
intelligence units, encouraging the participation of society in anti-corruption, improving accounting procedures and introducing ethics-related codes of conduct.201 Furthermore, the UNCAC encourages international cooperation between states 202by prescribing mutual legal assistance, law-enforcement cooperation and extradition.
2.3.3 Problems and prospects in international anti-corruption treaties
The attempt to curb corruption via international legislation is bound to present numerous challenges, given the pre-existing problems with the international legal system in general, as well as the nebulous nature of the concept of corruption itself. With regard to the
199
See articles 15, 16, 17, 18, 19, 20, 21, 22 and 23 of the UNCAC.
200 Ibid, articles 23, 24 and 25.
201 Articles 40, 52, 58, 13, 12 of the UNCAC. 202
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former, the age old debate as to whether international law is really law, due to the lack of a formal legislature and enforcement mechanism may pose a challenge. However, many scholars agree that this debate is now mute, as consent and willingness to be bound remain the foundation of international law.203
A much more immediate problem with regard to international anti-corruption law is the sheer number of treaties available. Carr observes that in such a situation, states are left wondering which treaty to ratify and implement or which one they can use as a basis for their domestic legislation. She justifiably worries that some states are simply ―serial ratifiers‖, and that ratification of international treaties can easily be reduced to a fad. She correctly points out that this is especially so for developing countries that may ratify in order to comply with anti-corruption conditionality and obtain much needed financial assistance. Even countries that do not need aid may engage in ratifications simply as a domestic exercise.204
The challenges to international regulation of a nebulous concept such as corruption are more pertinent. For instance, Carr criticises the lack of uniformity and comprehensiveness in scope, substance and procedure across the myriad conventions that have been passed. She points out how differences in the requirements for tackling corruption under different
203 See D‘Amato, A. (1985) ―Is International Law Really Law?‖ NorthWestern University Law Review 79 (5 &6):
1293-1314.
204 Carr, I (2007) ―Fighting Corruption Through Regional and International Conventions: A Satisfactory Solution?‖
European Journal or Crime, Criminal Law and Criminal Justice (2007) 121-153; at 141. Uganda might be considered one such ―serial ratifier‖ in order to keep up appearances as discussed in chapter 3.
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conventions are likely to lead to uncertainty in implementation. One of the uncertainties she identifies is the scope of corrupt acts identified in different conventions. Some
Conventions such as the OECD focus on bribery, whereas some such as the OAS and AU Conventions go as far as to criminalise illicit–unexplainable enrichment by public
officials.205 Furthermore, Snider and Kidane point out that the lack of specificity on procedural and evidentiary requirements, which are to be determined by States parties, could create problems in cases of transnational corruption.206
Another area that lacks comprehensiveness is the stipulated sanctions for corruption. Some of the regional Conventions such as the AU and OAS are silent on sanctions, leaving it to States parties to decide how they will punish offenders. Snider and Kidane have also observed that the AU Convention and the UNCAC overlap in so many respects, including membership and duplication of obligations. Scroth decries the manner in which the AU Convention, in Article 5, neglects private sector corruption by requiring the improvement and strengthening of only public sector systems, excluding private sector accounts.207 None of the existing Conventions seeks to include officials from the NGO sector within its ambit, which as Snider and Kidane point out is a significant omission because of the enormous role that NGOs play at both national and global level.208 The cumulative effect
205 Carr, ibid.
206 Snider and Kidane, (2007) ―Combatting Corruption through International Law in Africa: A Comparative Analysis,
40 Cornell International Law Journal 691.
207 Schroth, P. (2005), ―The African Union Convention on Preventing and Curbing Corruption,‖ Journal of African
Law 49: 24-38.
208
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of these factors is likely to be inaction or paralysis, as states ponder which model or recommendation to adopt.209
2.3.4 The significance of international anti-corruption law: from conditionality to legality
Despite the above problems, there is no denying that the passing of various international anti-corruption treaties is a step in a right direction. It signifies society‘s determination to fight corruption and may have a significant deterrent effect. Furthermore, it provides a crucial reference for prosecuting those who are found to be corrupt. It also provides a potent advocacy tool for NGOs and other civil society actors in their quest for
accountability and transparency. On the whole, it may be said that international anti- corruption conventions help to facilitate international cooperation in the control and
sanctioning of cross-border corruption; provide internationally agreed reference points that are useful for reform efforts; putting peer pressure on governments to reduce corruption; and providing fora in which governments and other actors can discuss corruption issues, align concepts and review anti-corruption efforts.
Thus, international anti-corruption law may be regarded as reinforcing the good governance discourse, by adding the crucial element of legality to the more elusive
concept of conditionality. Although the international community of States made efforts to
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address corruption prior to the dawn of the discourse, it is clear that it is only since the 1990s that the movement for international anti-corruption law gained momentum and culminated in the first universal anti-corruption treaty, the UNCAC, in 2005. The universalisation of anti-corruption in this manner re-emphasises the good governance discourse, which was under increasing criticism due to its perceived failure. Where good governance conditionality provided a means of coercion (carrot and stick) for tackling corruption, international law now promotes voluntary action by states. The development of international law thereby solves the problem regarding the fact that conditionality interferes with state sovereignty. Indeed, it solves many of the problems that bedevil governance related conditionality by making developing country states voluntarily take on the primary responsibility to fight corruption as opposed leaving it in the complex domain of the donor-recipient relationship.