Tag Archives: CoSP

What is the key to improving asset recovery? A Summary of our IRG Side Event

17 September 2021 –

How can we move forward on asset recovery? During a side event on the margins of the resumed 12th session of the Implementation Review Group (IRG) in Vienna, a panel of speakers reflected on the advances made in the field of asset recovery, both nationally and internationally, and presented recent developments on the ground from their respective countries. Over 70 governmental, diplomatic and civil society attendees joined for this session organized by Transparency International (TI) and the UNCAC Coalition, co-sponsored by France and Nigeria, and moderated by Gillian Dell from TI, and Board Member of the UNCAC Coalition.

Gillian Dell, Head of Conventions Unit at Transparency International opened the session with a stark reminder that by conservative estimates, about 400 billion dollars in corruption proceeds have been diverted across borders from developing countries in the last ten years. Only a fraction of that has been recovered and returned, despite recent improvements. The Stolen Asset Recovery Initiative (StAR) and other organizations have identified a range of barriers to overcome, and the commitments in the UNGASS’ political declaration, if implemented by states, could help to address barriers and improve asset recovery outcomes. What are the commitments?:

  • Member States committed to using available tools for asset recovery and return, including conviction-based and non-conviction-based confiscation, and to strengthening efforts to confiscate and return proceeds of corruption when employing non-trial resolutions or settlements;
  • Member States also agreed to strive to ensure that the return and disposal of confiscated property is done in a transparent and accountable manner and there is also emphasis on the need to preserve the value and condition of proceeds of crime pending the conclusion of confiscation proceedings, including with a view to returning these assets in the future, in accordance with chapter V of the Convention;
  • A further commitment from Member States is to consolidate and expand data collection on asset recovery and return through gathering and sharing information on volumes of assets frozen, seized, confiscated and returned in relation to corruption offences, and the number and types of cases, as appropriate;
  • Finally, the Political Declaration invited the UNCAC Conference of the States Parties (CoSP), after the evaluation of the findings from the second review cycle, to organize a CoSP special session on asset recovery, to consider all options available under the Convention, including exploring possible areas for improvement to the international asset recovery framework.

Panelists addressed these commitments and provided concrete examples and suggestions for making progress on them. In the case of France, Caroline Goussé, legal adviser from the Directorate of Economic Diplomacy within the Ministry of European and Foreign Affairs, shared that France does not make use of non-conviction-based (NCB) confiscations, but does have a non-return mechanism which can be accessed at any stage of criminal proceedings that are a result of UNCAC offenses.

Specifically on returning assets, trial resolutions such as the plea-bargaining procedure of “Comparution sur Reconnaissance Préalable de Culpabilité” (CRPC) have been used to return assets in recent years. Another form of legal settlement accessible to legal persons in French rule is the Judicial Public Interest Agreement known as the “Convention Judiciaire d’Intérêt Public” (CJIP).

In terms of data collection for asset recovery, France has a specialized agency entrusted with managing assets that have been seized or confiscated. The Agency for the Recovery and Management of Seized and Confiscated Assets (AGRASC) issues annual activity reports, detailing what has been returned and how, and it is also working on proposals to increase data sharing on asset recovery.

Sara Brimbeuf, Senior Advocacy Officer at TI France added that the French mechanism of presumption of money laundering, introduced in the French Criminal Courts in 2013, was key in recovering a large sum of assets. It has allowed for the conviction of foreign leaders by France. Following tireless civil society advocacy, a law on asset repatriation was recently enacted. The latter was achieved through inter-ministerial dialogue and dialogues with civil society. TI France intends to monitor the operationalization of the law, ensuring that its principals will be properly translated into the domestic legal framework. To this end, it is developing indicators to assess the transparency, accountability and inclusiveness of the return process.

Emmanuel Nweke, Senior Counsellor at the permanent mission of Nigeria to the United Nations, commented on the country’s “frantic efforts” to return the many assets stashed abroad to Nigeria. In his view, the UNGASS’ political declaration lacked ambition in terms of its provisions on asset recovery: most of these articles were caveated due to conflicting interests from States Parties. Nigeria applies non-conviction-based asset recovery (NCB), which is seen as a crucial tool for the recovery of assets, along with non-trial resolutions. One recommendation was for UNODC to provide non-binding guidelines to lead states through definitions of non-trial-based resolutions.

The delegate also referred to the Advance Fee Fraud Act, which gives wide powers to Nigerian law enforcement agencies to confiscate assets and respond to foreign requests for mutual legal assistance in asset recovery without conviction. Other national acts and legislation supplement these existing tools, such as the guidelines on Asset Tracing, Recovery and Management, released in 2019 by the Attorney General’s Office. Furthermore, several superior court decisions in Nigeria have lent credence to NCB confiscation. He concluded by reiterating that Nigeria is concerned with more than mere national scenarios, and that there is interest in international asset recovery efforts, as well as hopes for asset recovery to make an appearance in the upcoming resolutions adopted at the 9th CoSP.

David Ugolor, Executive Director of the Africa Network for Development and Justice (ANEEJ) and board member of the UNCAC Coalition, elaborated further on Nigeria’s comprehensive asset recovery architecture, mentioning the Abacha loot – a case in which tranches of funds were transferred back to the Nigerian people. Civil society, concerned about transparency with respect to the return of funds, monitored the disbursement of the second tranche of money. Nigeria has moved beyond the UNGASS declaration’s commitments to establish legislation that actively supports asset recovery. Nevertheless, issues with data-sharing, collaboration among national bodies and the weak technical capacity of law enforcement agencies have posed challenges.

Jackson Oldfield, founder of the Civil Forum on Asset Recovery (CiFAR) promoted a greater commitment to the timely sharing of information and data on asset recovery processes, including civil society and the general public. The lack of access to what is often considered sensitive information, and sharing it on an aggregate level have been persistent obstacles. Moreover, states should ensure that non-trial proceedings have transparency and accountability built into them. Best practice guidelines are another tool which can highlight examples of progress, with the lessons contained therein standing to benefit all stakeholders.

In conclusion, overcoming existing challenges in the asset recovery landscape is an issue that can be explored through plenary IRG sessions, where countries should share best practices and common challenges, if any consolidated effort is to be made in the coming years, before the UNCAC review cycle covering asset recovery draws to a close.

How to Advance the UNGASS Commitments on Corruption Prevention? A Summary of Our IRG Side Event

15 September 2021 –

What should countries do to implement the transparency and anti-corruption commitments they made in the UNGASS Political Declaration? At a side event organized by the UNCAC Coalition on the margins of the resumed 12th session of the Implementation Review Group (IRG) in Vienna, a panel of four civil society experts discussed what needs to be done to advance public procurement and beneficial ownership transparency, access to information, whistleblower protection, and the role of journalists in the fight against corruption.  Moderated by Helen Darbishire from Access Info Europe, the session was attended by more than 50 delegates, governmental experts, and civil society representatives. 

Kristen Robinson (Open Contracting Partnership) on Public Procurement

In the UNGASS Political Declaration (PD), States Parties recognized the need for greater transparency throughout the whole public procurement cycle and the important monitoring role that civil society and the media can play in this regard. The PD also recognized the need for structured, open contracting data and the right of the public to access it. As countries around the world mobilize vast amounts of public money to set up Covid-19 recovery funds, it is crucial that States Parties implement and operationalize the commitments they made during the UNGASS. At the same time, the current guidance from UNODC on public procurement (from 2010) should be updated to reflect the good practice examples that have emerged in this area in recent years. 

Louise Russell-Prywata (Open Ownership) on Beneficial Ownership

The affirmation in the UNGASS PD that beneficial ownership information (BOI) should be “adequate, accurate, reliable and timely” is a welcome step in the right direction and States Parties should move to implement this provision in practice. “Adequate” requires States Parties to ensure that BOI contains sufficient detail to identify the ultimate owners of assets. “Timely” is about obliging companies to submit their complete BO data swiftly, whilst “accurate” entails taking steps to verify the data and to apply proportionate sanctions if companies fail to comply with their obligations. This can be done most efficiently if BOI is collected and shared in a structured format, following the beneficial ownership data standard. Evidence from countries that already have beneficial ownership registries in place shows that implementing the PD’s provision on beneficial ownership is both achievable and impactful as an anti-corruption tool. Moreover, States Parties considering resolutions during the upcoming 9th CoSP should build on the interlinkages that the PD makes between issues such as BOI and Public Procurement.

David Banisar (ARTICLE 19) on Whistleblowing and Civic Space

In recent years, a shockingly high number of journalists and whistleblowers have been killed, many of whom were involved in investigating corruption scandals. This reflects the fact that, although many countries established laws on whistleblowing, they often do not provide much protection in practice. Unfortunately, the UNGASS PD – albeit containing some more progressive language on whistleblower protection – does not make any real progress in this area. Therefore, building on good practices from other UN bodies, such as UNEP’s establishment of a warning system for threats against Environmental Defenders, UNODC could create its own mechanism on corruption-related whistleblowing. Furthermore, UNODC should issue guidance on the protection of journalists and civic space under Art. 13 of the UNCAC and assess how well its 2015 guidance on whistleblowing has been implemented. 

Mathias Huter (UNCAC Coalition) on Transparency in the UNCAC Review Mechanism

In the UNGASS PD, States Parties recognized the important contribution that civil society and the media can make to the fight against corruption. The PD also emphasized that the UNCAC review process is an important source to identify good practices, as well as technical assistance challenges around the world. However, as many of the review’s outcome documents are not accessible to the general public, the process is not transparent and fails to be an engine for reform in many countries. Unfortunately, the PD only refers to States Parties voluntarily publishing their full country report, which so far only 17 countries have done for the second review cycle. Therefore, the UNCAC Coalition encourages all States Parties to join the 28 countries that have already done so and sign the Coalition’s Transparency Pledge, committing to voluntarily publishing all outcome documents of the UNCAC review and including civil society in the process. The UNCAC Coalition will continue to support CSOs around the world in drafting parallel reports on UNCAC implementation in their countries. 

Ways forward

In the ensuing open discussion, the panelists shared good practice examples and existing guidance materials with civil society representatives and States Parties delegations. In her concluding remarks, Helen Darbishire reiterated the importance of transparency by emphasizing that civil society often has solutions to the technical problems that States Parties are facing, but can only contribute if it has access to the necessary information. The session ended with Mathias Huter inviting States Parties that are working on resolutions for the upcoming 9th CoSP to reach out to the UNCAC Coalition for technical input, including good practice examples.

How Were Civil Society Priorities Reflected In The UNGASS Political Declaration? A Summary of Our Pre-UNGASS Event

9 June 2021 –

Ahead of the first-ever UN General Assembly Special Session against Corruption (UNGASS), the UNCAC Coalition brought together nine civil society experts to discuss a wide array of anti-corruption topics and to what extend the priorities and demands of civil society were reflected in the UNGASS Political Declaration.

The Political Declaration will serve as a key reference document for global anti-corruption efforts for the coming years, building on and complementing the UN Convention against Corruption (UNCAC).

Numerous civil society groups, including the UNCAC Coalition, made detailed contributions and proposals to the UNGASS preparation process. But now that civil society has taken a closer look at the text of the Political Declaration, what commitments have been made, what is missing and what further action is needed to make meaningful progress in the fight against corruption?

Helen Darbishire, Executive Director of Access Info Europe and Chair of the UNCAC Coalition, on Access to Information:

The Political Declaration has made progress insofar as mentions of access to information and transparency are more numerous than in the UNCAC. However, the language used in the Declaration is “weak and confusing.” The declaration speaks about “access to information in accordance with the domestic laws of States” (operative paragraph 22), yet access to information fails to be recognized as a fundamental human right despite ongoing advocacy efforts for such a specific reference in the declaration. Moreover, commitments relating to the delegation of efforts to other bodies lack clear reference as to how this will be carried out in practice, for instance, suggestions for stronger oversight mechanisms like information commissioners.

The Declaration highlights new areas in which transparency should feature: the private sector, beneficial ownership, judicial processes and the SDGs. While such references tend to be general and vague, they signal beginnings of progress.

Civil society has an important role in demanding that Member States translate the Declaration’s language into concrete commitments and integrate concepts into action plans. The Political Declaration is one more piece of evidence in holding States Parties to account, and pushing for more action in both national and international fora.

Kristen Robinson, Head of Advocacy at Open Contracting Partnership, on Public Procurement Transparency

In essence, procurement is about money and not just contracts, bureaucracy and red tape. Procurement can act as a powerful social contract with the ability to make measurable impacts, such as increasing the number of patients receiving critical medical treatment or improving the effectiveness of infrastructure against natural disasters, in line with the SDGs.

The Political Declaration delivers in the areas of committing to strengthening data collection systems and embracing modern digital tools to fight corruption. However, it falls short of acknowledging the need for multistakeholder consultation on procurement decisions and mentioning the industry and market as critical players in the procurement cycle.

Moving forward, Member States need to be encouraged to commit to civil society, industry and media engagement for the implementation and monitoring of public procurement.

Thom Townsend, Executive Director of Open Ownership, on Beneficial Ownership Transparency

Beneficial ownership transparency (BOT) has made great strides over a short period of time, with over 100 countries currently committed to some form of BOT.

While the Political Declaration is an upgrade of the UNCAC in terms of agreed language on this topic, one critical element which is missing is the word “used,” because information that is available and accessible but unused is a burden without value. The UNCAC itself also requires updated language – it risks being left behind and feeling outdated on beneficial ownership. The UN system has a vital role to play in representing the views and needs of countries outside the small club of countries setting rules via bodies like FATF (OECD countries).

A next step for BOT is the establishment of strong language on central, verified and shared data on all entity ownership as the new global minimum, with commitments and initiatives that are put to use by both governments and law enforcement agencies.

David Banisar, Head of Transparency at ARTICLE 19, on Civic Space & the Protection of Journalists/Activists

With 66 journalists killed in 2020 alone, often linked to corruption-related reporting, journalists, activists and human rights defenders are undeniably at the forefront of the fight against corruption, yet are also frequently victims of life-threatening attacks. While the issue has been recognized by UN bodies such as the Geneva-based Human Rights Council, the UNGASS’ Political Declaration has also made a statement with direct reference to the condemnation of “threats and acts of violence…committed against [journalists]” (operative paragraph 31).

States must be held accountable to this commitment, and potential further action could involve the inclusion of data on NGOs and journalists in civic space as part of the second review cycle of the UNCAC.

Samantha Feinstein, Deputy Director at the Government Accountability Project, on Whistleblowing

Covid-19 has exposed the dangers of whistleblowing and reporting on corruption to the world. To date, national legislation in many countries does not provide adequate protection for whistleblowers and reporting persons. The Political Declaration does indicate its intentions to “provide a safe and enabling environment to those who expose, report and fight corruption…” (OP 30) with the provision of protected reporting systems and programs for them.

Nevertheless, the Declaration lacks specificity in its definitions of terms, which need to be refined and consistent with international law. Its commitments should also incorporate fewer vague qualifiers: exceptions must be carefully defined in order to avoid conflict with their intended objectives. In sum, implementation action is needed, especially in terms of settlement agreements which should be made public.

Gladwell Otieno, Executive Director of the Africa Centre for Open Governance, on Tackling Impunity

The 2020 Corruption Perceptions Index (CPI) published by Transparency International revealed that few countries have made significant progress in tackling corruption over the past 10 years, with over two-thirds of ranked countries with a score under 50, among them even those considered ‘advanced’ democracies. The Political Declaration unfortunately fails to communicate a sense of urgency over matters of grand corruption and tackling impunity.

State capture has resulted in the implanting of impunity in the DNA of a state’s operation, and the reproduction of corrupt behaviors which are resilient in the face of reform and incentives to stem corruption. The Declaration falls short of making bold commitments and highlighting a powerful vision for the future of anti-corruption, yet not for a lack of good examples to follow, as seen in the recommendations contained in the Lima Statement (December 2018) and the Oslo Statement (June 2019). Moreover, the Declaration’s more significant omissions include the lack of mentions of hidden debts and the use of technology to nefarious ends, as a means to repress civil society voices.

Cynthia Gabriel, Founding Director of the Centre to Combat Corruption and Cronyism, on Grand Corruption

Grand corruption does not only happen on grand scales – small jurisdictions can also play a part in large corruption scandals, alongside other actors like lawyers, accountants and financial actors who are complicit to the crimes, beyond States and their leaders which are often the main focus. The fairly small Malaysian economy contributed to one of the largest financial scandals in the world in recent history, the 1MDB case, due to the failure of domestic financial institutions that allowed corruption to take place. Individuals who came forward to question Parliament in Malaysia were shut down and blocked from voicing their concerns. While the case started to garner international attention, local efforts to expose the scandal were stifled and individuals completely oppressed.

The Political Declaration alludes to grand corruption without directly pinpointing what kind of action States should take to counter it, which “comes as no surprise considering that governments themselves require power and space, as well as a high level of impunity to play with money – the less scrutiny we have, the better it is for them” to ensure that their financial schemes succeed. Rethinking a new strategy to tackle grand corruption is key: governments cannot be fully relied upon in the fight against corruption and civil society needs to use its voice to ensure that active commitments are made.

Juanita Olaya, Chair of the UNCAC Coalition Working Group on Victims of Corruption

Focusing on the root causes, actors and processes behind corruption have eclipsed a central feature: citizens, the consequences they face as victims of corrupt acts and the compensation they should receive in return. If justice is not being served, why should we fight for more enforcement? The Political Declaration falls short of making a revolutionary statement about citizens at the core of corruption cases, recognizing their right to stand before tribunals and demand compensation for the harms caused to them and their livelihoods. While some States have begun to include considerations for repatriation when dealing with corruption cases, and others, such as France, are working on implementing landmark legislation regarding the return of “ill-gotten gains” the Declaration does not commit to any sort of remedy for victims. Future enforcement measures must bring justice and citizens to the forefront of discussions, rather than casting them on the sidelines of political agreements.

Gillian Dell, Head of the Conventions Unit at Transparency International, on Asset Recovery

The inherent difficulty with Asset Recovery is that the states responsible for failures in this area are the same states sitting at the negotiating table. The Political Declaration covers the detection, confiscation and return of stolen assets, yet not in measurable terms, signaling only minor progress. Links between the issue of stolen assets and transnational organized crime were not specifically made in the Declaration. More general commitments on information sharing and strengthening capacities for the recovery of assets are positive ideas in principle, but difficult to monitor, given restrictions in accessing data related to asset recovery in most States.

The Declaration is missing an emphasis on what next steps will be taken to operationalize and monitor the commitments made, such as through the establishment of an Intergovernmental Expert Working Group addressing gaps, specifically in the field of asset recovery and transnational organized corruption. Transparency International and the UNCAC Coalition issued a joint proposal for a multilateral agreement on asset recovery, outlining how international  consensus will help with the return of confiscated funds back to affected populations. The momentum generated by the UNGASS on this issue cannot end after the Special Session itself – civil society must keep the conversation going.

Conclusion

To summarize, it is clear that the Political Declaration largely reiterates existing UNCAC commitments and does not go much further, signaling very little progress with regards to the discussed topics. This should not be considered a surprise, as the prevailing position shared by many Member states, shaped the latest consensus – ‘no’ to new normative frameworks and commitments, ‘yes’ to stronger UNCAC implementation.

The next step in operationalising some of the UNGASS commitments will be the UNCAC Conference of States Parties in December 2021, where States will negotiate and adopt resolutions specific topics that to advance the implementation of anti-corruption commitments.

The UNCAC Coalition covered the UNGASS from June 2-4 through a live blog and on Twitter. You can also view recorded segments of the UNGASS sessions here. More information on the can be found here.