8 July 2014, by Gillian Dell.
Enforcement agencies frequently face constraints in their efforts to bring the corrupt to justice. This means widespread impunity for corruption offences.
As shown by UNCAC reviews and other studies, a key challenge for many enforcement agencies is the lack of adequate independence from the executive branch. Even more of them are handicapped by insufficient resources and know-how for conducting complex corruption investigations. And then there is the challenge of obtaining legal assistance from enforcement authorities in other countries, which may face constraints of their own. All of these problems could be overcome with sufficient political will, but this is often badly lacking.
Civil society organisations can play a role. If the authorities are unwilling or unable to investigate, bring charges and prosecute for corruption, civil society can promote or initiate action. In a series of meetings this year, UNCAC Coalition groups have organised discussions on this subject.
UNCAC Implementation Review Group Briefing for NGOs
At the UNCAC Implementation Review Group (IRG) briefing for NGOs on 5 June 2014, the UNCAC Coalition organised a panel that outlined civil society work in the enforcement arena. The moderator, Manzoor Hasan of the Institute of Governance Studies in Bangladesh, cited a range of civil society work including research, analysis, awareness-raising, advocacy, training and – last but not least – preparing dossiers and filing complaints.
Panellist Sophie Lemaître of the French CSO Sherpa described her organisation’s ground-breaking work with TI France to file the “Biens Mal Acquis” complaint. The complaint concerned alleged ill-gotten gains stashed in France by three foreign leaders, as well as their family members and close associates. Before an investigation by French authorities could proceed, the French Supreme Court was called on to rule whether an anti-corruption CSO was permitted to submit a complaint as “partie civile”. The court, citing UNCAC, confirmed this possibility in a landmark decision in 2010 that was codified into French law at the end of 2013. In a recent development, the son of the President of Equatorial Guinea—one of the targets of the investigation—has been placed under formal investigation for money laundering.
On behalf of Transparency International, Gillian Dell pointed to similar CSO initiatives, such as TI-Czech Republic’s criminal complaint concerning a former district mayor of Prague. She also explained that more than 60 TI chapters have Advocacy and Legal Advice Centres (ALACs) to assist whistleblowers and pursue legal remedies, and that TI chapters support enforcement in other ways from monitoring and advocacy to training enforcement authorities.
TI Bulgaria representative Diana Kovatcheva emphasised the importance of constructive dialogue to advance implementation and cited her organisation’s consultations with government officials in preparing a study analysing whether weaknesses previously identified had been addressed. She also highlighted several key areas for country enforcement efforts, including judicial independence, liability of legal persons and collection and compilation of adequate statistics.
The UNCAC Coalition also organised a panel on beneficial ownership transparency at the IRG briefing in June. More information about the briefing can be found in UNODC’s report and on the UNCAC Coalition website and Twitter account.
Multi-stakeholder UNCAC Workshops
Enforcement was also a topic at two multi-stakeholder workshops organised jointly by UNODC and the UNCAC Coalition this year. The first of these was for Asian stakeholders in Kuala Lumpur, Malaysia in February 2014 and the second for African stakeholders at the International Anti-Corruption Academy in Laxenburg, Austria in June 2014. Both meetings provided participants with knowledge of UNCAC and its review process as well as a forum for dialogue.
The workshop discussions focused primarily on issues in the first cycle of the UNCAC review process, which covers UNCAC chapter III on criminalisation and enforcement and chapter IV on international cooperation. Participants exchanged views on gaps in criminal laws and weaknesses in enforcement systems and agreed that there was a role for civil society in helping to address these deficiencies. They discussed specific examples of civil society engagement, such as the work of REN-LAC in Burkina Faso and SHERPA in France. Many participants planned to continue the government-civil society dialogue on these issues when they returned home.
Conference on Legal Remedies for Corruption
The most active CSO approaches to promoting enforcement – filing criminal complaints and pursuing public interest litigation – were the topic of a Conference on Legal Remedies for Corruption on 28 June 2014 at the Said Business School, University of Oxford. The conference was co-organised by Coalition member Open Society Justice Initiative together with the Oxford Institute for Ethics, Law and Armed Conflict.
The participants from civil society, academia and government considered examples of how civil society organisations – including OSJI, SERAP-Nigera, SHERPA, TI-France, TRIAL and others –have supported, supplemented and triggered efforts by enforcement authorities in India, France, Kazakhstan, Nigeria, Switzerland and more. Academics contributing to the discussions included Paul Collier of Oxford University and Abiola Makinwa of the Hague University of Applied Sciences in the Netherlands, author of Private Remedies for Corruption: Towards an International Framework (2013).
The conference served to foster future collaboration among CSOs using legal remedies for corruption. An OSJI book is in the pipeline.
Role for CSOs
The message of these meetings is clear: given the huge challenges faced by anti-corruption agencies around the world in pursuing corruption, civil society organisations are stepping in to play a supporting role. In view of the public outrage and frustration with the on-going experience of impunity for corruption offences, we can expect to see more CSO involvement in this area in the future.
About Gillian Dell
Gillian Dell is the UNCAC Coalition secretariat.