Vienna, 30 May 2013, by Oluajo Babatunde.

Immunity as a potential and real threat to efforts to combat corruption

The Zero Corruption Coalition (ZCC) is a coalition of over one hundred civil society organizations working on issues of anti-corruption, transparency and accountability.ZCC is a member organisation of the UNCAC Coalition and is a member of its Coordination Committee.

In 2009, Nigeria was among the 15 countries which volunteered to test run the Self-Assessment Checklist on the implementation of the United Nations Convention against Corruption (UNCAC) developed by the United Nations Office on Drugs and Crime (UNODC) under the direction of the UNCAC Conference of States Parties. At the same time the ZCC produced a Nigeria country shadow report.

The ZCC has a history of engagement with relevant national institutions working to realise full UNCAC implementation in Nigeria. These institutions include the Inter-Agency Task Team that worked in developing a national anti-corruption strategy for Nigeria, the National Advisory Council of Designated Non-Financial Institutions of the Special Control Unit against Money Laundering (SCUML) and other anti-corruption agencies.

In addition, the ZCC supported the government in its efforts to criminalise and enforce the offences of corruption with the support of the UNODC, by undertaking a review of the compliance of relevant domestic laws regulating the conduct and operations of private sector entities with the provisions of articles 12, 21, 22 and 39 of the UNCAC.

The ZCC is currently leading a CSO effort at ensuring a participatory UNCAC review of the country by preparing a CSO report to be used as a basis for engaging the review process.

I am here to talk about immunities that exist for some public officials with respect to the investigation, prosecution and adjudication of corruption. This topic is covered by UNCAC article 30 (2). The useful thematic report prepared by UNODC for this week’s IRG meeting says that there are issues in this area in several States Parties reviewed. The UNCAC Coalition has raised this issue in its letter of 16 May, 2013 to the IRG.

There are arguments in favour of immunities. The problem we are concerned with is that in a number of important cases they have been used to block corrupt actors from being held to account even though there was a great deal of evidence. There are cases in a number of countries where immunity has been used to clearly shield indicted public officials and there are even cases of the power to grant pardons being abused in granting pardons to corrupt public officials found guilty of corruption. This is in clear breach of the intendment of the immunity provisions.

The issue of immunities has been referenced not only in UNCAC but also in the context of regional conventions and has been discussed as an obstacle. Article 7(5) of the African Union Convention on Preventing and Combating Corruption provides that – “Subject to the provisions of domestic legislation, any immunity granted to public officials shall not be an obstacle to the investigation of allegations against and the prosecution of such officials”.

In addition, in 2005 the Commonwealth Working Group on Asset Repatriation recommended that Commonwealth heads of state/government, ministers and other public officials should not have immunity from prosecution for alleged criminal activity. The working group recommended that heads of government should commit themselves to take active steps to ensure the removal of these immunities.

Thus immunities should be as limited as possible if not eliminated and should not block criminal investigations into corruption.

The UNCAC Coalition and my own organisation ZCC in our letter of 16 May 2013 to the IRG have recommended that the UNODC should convene an expert meeting to discuss recommendations for implementing Article 30(2). It should also prepare a report on immunities under international law.

We hope that you will give consideration to this proposal. Thank you for listening.