What happened at COSP4? Overview

Gillian Dell, Transparency International

The fourth session of the UNCAC Conference of States Parties that met in Marrakech in October 2011 (COSP4) was the biggest ever – with over 1500 delegates from 125 countries, including over 200 representatives from civil society organisations, most of them part of the UNCAC Coalition. Unfortunately, it was a missed opportunity. No major initiatives were taken to advance the global anti-corruption agenda. Nor was there a real exchange of views on any substantive issues. Despite growing public outrage at how corruption is damaging our societies, world leaders and the international press showed little interest in the meeting.

Divided into thematic sessions (Review of the implementation of the UNCAC, Technical assistance, Prevention and Asset recovery), the plenaries showcased government statements that included strong support for civil society participation in anti-corruption efforts. The main action was in informal discussions closed to civil society observers. These reportedly saw some heated disagreements about how to provide technical assistance to implement UNCAC and about proposals to increase funding for the UNCAC review mechanism. The outcomes on these issues were reflected in a resolution adopted on the review mechanism, proposed by the Chair of the Implementation Review Group (IRG). This appeared to tighten IRG oversight of the budget.

But the fundamental fault line at the conference was about transparency and participation in the IRG, the oversight body of the review mechanism. The Russian Federation seized the initiative at the conference with a draft resolution aimed at blocking civil society organisations from attending IRG meetings as observers. The Russian offensive was reportedly backed by Algeria, China, Cuba, Ecuador, Iran, Pakistan and Zimbabwe. Their objective was to override language agreed at COSP3 that allowed CSO observers in the IRG. Prior to COSP4, the Russian-led group had already achieved temporary exclusion of CSOs from IRG meetings pending a decision at COSP4. This “status quo” was established at the IRG’s start-up session in June 2010 and continued even after the UN Office of Legal Affairs issued an August 2010 opinion confirming CSO observer status. Thus, the CSO observer issue became the main focus of informal conference negotiations, sometimes acrimonious. The result was a sorry compromise that postponed a decision on the observer issue and provided in the meantime for a briefing and dialogue with CSOs on the margins of IRG meetings. This step backwards cast a cloud over the COSP and contrasted with much oratory about the lessons of the Arab Spring.

The UNCAC Coalition during the 4th UNCAC Conference of States Parties. © Andrea Figari

On the substantive side, COSP4 adopted two resolutions, one on prevention (from Morocco) and one on asset recovery (from Egypt). These contained little that was new. However, the asset recovery resolution underlined the need for mutual legal assistance to countries in the Middle East and North Africa, signalling concerns in this area. And, in an important advance on the COSP3 resolution on asset recovery, it also emphasised the need for strong regulatory action towards financial institutions to ensure they work harder to catch suspicious transactions. It was complemented by another resolution from Egypt calling for expert meetings on international cooperation in criminal law enforcement. This is potentially a significant development if the meetings are practical and constructive.

In addition, a surprise invitation from the Russian Federation to host the sixth COSP was endorsed by the Conference. It was promptly followed by an EU proposal to hold the seventh COSP at UNODC headquarters in Austria, based on the EU’s longstanding proposal for alternating between Vienna and other venues. (The fifth COSP in 2013 will take place in Panama.)

An unsettling backdrop to the Marrakech discussions was that only six of the first twenty-six country reviews had been completed by the time the Marrakech meeting took place, almost 18 months after the start of the UNCAC review process. Concerns on this score were reflected in the resolution on the review mechanism noting the “unresponsiveness of several States parties with regard to their obligations under the terms of reference and guidelines” for the country reviews. The thematic reports prepared by UNODC made up a little for that gap by providing some discussion points, but they did not receive much attention at the conference.

UNCAC Coalition members © Andrea Figari

In the end, apart from the resolution on expert meetings on international cooperation, arguably the most positive development at the Conference was the inclusion in the official conference documentation of a collection of civil society review reports submitted by the UNCAC Coalition (see below). That established an official space for civil society views about country performance in UNCAC implementation. The otherwise slow-paced conference was also enlivened by civil society actions and advocacy activities, including a series of awareness-raising games that opened the door for some friendly and informative discussions with country delegates.

Despite a rather unproductive COSP4, those committed to anti-corruption efforts are not likely to give up and will be working hard in the next two years to ensure that the 5th conference in Panama in 2013 is not a repeat performance. One lesson learned is that governments and other stakeholders, including civil society, should start their preparations for the conference much earlier.

Consult the full report on the Conference from UNODC, including all the resolutions and decisions.

Highlights of the resolutions adopted from a civil society perspective

Submission of the CSO reports and presentations in plenary

In a major step forward for civil society engagement with the COSP, UNCAC Coalition member organisations made 17 submissions that were accepted as official conference documents. These included two Coalition statements on civil society participation and asset recovery, an overview report on the first year of the UNCAC review process, and 13 civil society country executive summary reports (NGO.5 to NGO.17). In addition, Christian Aid, Global Witness and Tearfund submitted a statement prepared by the Anti-Corruption Subgroup of the British Bond.

Several members of the Coalition also addressed Conference plenary sessions:

• Slagjana Taseva serving as Chair spoke on behalf of the Coalition in the first plenary on the 2nd day and also delivered a forceful statement in the closing plenary.
• Christiaan Poortman, head of delegation of Transparency International, delivered a speech in the first plenary on the 2nd day.
• Vincent Lazatin of TAN, Philippines read out the Coalition statement on Article 13 in the Prevention plenary on the 3rd day. In that session, other speakers were Lydia Medland of Access Info Europe; Martin Kapenda from Micah Challenge in Zambia; and Fritz Heimann of Transparency International.
• Tim Daniels spoke on behalf of Sherpa and Ibrahim Ali, of Libyan Transparency Association spoke in the plenary on Asset recovery on the 4th day.

Side events

Mechtild Lauth, Transparency International

During the Conference a number of special events were organised by the UNCAC Coalition for government representatives and civil society organisations. The events were coordinated by various NGOs, including Transparency International, Access Info Europe, Tearfund, Transparency Maroc and Sherpa. The panels addressed topics such as the state of transparency and civil society participation in the UNCAC review process, the right of access to information, the involvement of citizens and parliamentarians in the fight against corruption, best practices on the implementation of article 13 of the UNCAC and on the protection of witnesses and whistleblowers.

One panel dealt with best practices on asset recovery and anti-money laundering. Representatives from NGOs, the private sector and practitioners gave presentations on their respective areas of work and provided detailed insight into the various subjects. All panels also highlighted the importance of civil society engagement in anti-corruption activities.

A number of special events were also organised by other organisations, such as GOPAC, the IACA, GIZ, UN-Women, the UNOHCHR, and the Global Network of asset recovery practitioners, amongst others. The Open Government Partnership, launched by the US at the UN General Assembly of September 2010, held a session with panellists from the US, Brazil, India, Indonesia. A high-level Forum on the United Nations Convention against Corruption and Global Competition was held, attended by 100 company executives and government representatives, which was opened by the Executive Director of UNODC and addressed by the Deputy Secretary-General of OECD. A panel to discuss best practices in asset recovery and money laundering offered the chance to convey and discuss an innovative proposal from the Public Ethics Prosecutors in Costa Rica: corruption causes a harm to society that needs reparation.

» More information on these side events can be obtained from the UNODC report on COSP4 here.

The Coalition in the room where the civil society meetings took place ©UNODC

A significant networking opportunity for CSOs from the Arab region — The MENA region Declaration

Saâd Meknassi, Transparency Maroc

There was a prediction among some CSOs that the “Arab Spring effect” would press governments to move forward faster than before to enact the Convention’s provisions on civil society participation and to end impunity, but the result was not substantial.

Civil society representatives from Arab countries met on the last day to assess the progress of COSP4 and discuss means and possibilities of collaboration within the region. As a result, they produced the MENA Declaration to affirm the urgency of the fight against corruption in the region, the major importance of asset recovery as stipulated by the provisions of Chapter V of the Convention and the need for a robust implementation of Article 13 of the UNCAC.

From a Moroccan civil society perspective, COSP 4 offered some benefits. In the two-year lead-up to COSP4 we had an opportunity to work with the Moroccan government, host to the Conference, to ask for greater efforts to advance the fight against corruption in Morocco. Transparency Maroc worked on mobilizing different stakeholders in the country through different means including art events, a platform calling for a law on access to information, a public debate on the protection of whistleblowers, and the new framework for the national agency fighting corruption. Finally, it was also a great opportunity to network and exchange within the UNCAC Coalition members and other networks.

Actions of the UNCAC Coalition

The objectives of the Coalition in the Conference were to:

• monitor the official and behind-the-scenes discussions;
• try to influence them; and
• raise awareness about and report on the results of the Conference.

As a result, Coalition members were active on many different levels:

• Monitor: As in previous editions of the COSP, the newsletter Monitor was produced, published and distributed at the Conference. Three issues were published (October 25-27-28).
• Meetings / discussions with delegates: Two Coalition working groups were formed to conduct advocacy towards government delegates on: 1) civil society participation and the review mechanism, 2) asset recovery.
• Daily meetings: The Coalition met in the morning and at the end of the day to assess progress in the official discussions. The ad hoc groups reported as well and helped redirect the Coalition strategies and advocacy.
• Anti-corruption games and information tables: The Coalition set up a table with anti-corruption games for government delegates. There was a different game each day and the purpose was to convey important messages in a relaxed way, to create the proper environment to approach and discuss with the delegates and make more visible the presence of the Coalition. The Coalition also shared an information table where governments could pick up CSO review reports and other CSO information. Meanwhile, Transparency Maroc had its own information stand and organised an art exhibition around the topic of corruption.

• Public interventions: A flash mob was organised in Jemaa el Fna square, the central market square of Marrakech, on the afternoon of October 24 (day 1 of the Conference). Around 20 Coalition members wore yellow jackets and performed a choreography with brooms and cloths to “clean” the square of corruption, watched by a spontaneous audience. This action was filmed and photographed for wider dissemination.

  At the Conference venue itself, George Boden of Global Witness dressed up as a banker with the Bank of Kleptocracy, offering banking services with “no questions asked”. This attracted much attention and demand for his flyers. At noon on the last day (October 28), the Coalition decided to make another visible statement, this time at the Conference venue, when we learned that governments were discussing a compromise involving “briefings” for CSOs on the margins of the IRG.. On this occasion, the performance consisted in deploying banners and chanting the slogan “We want Rule 17 for the IRG” accompanied by percussion instruments.

• External communication: Transparency International and the Coalition issued two press releases, at the beginning and at the end of the Conference. Social media such as facebook and twitter were systematically used to keep the outside world informed about developments at the Conference.

The road ahead

Building on the lessons learned at COSP4 and in the UNCAC review process, the Coalition Coordination Committee is developing proposals for our work in the next two years, until the next COSP in Panama, and will present these to the Coalition for discussion. Some of the ideas already on the table are about: which topics to focus on; capacity-building for country reviews; platforms for exchange of experiences in the review process; organisation of work at regional level; increased advocacy in a range of fora; and earlier start-up of COSP-related advocacy. All this towards the Coalition’s vision of “a world in which corruption is effectively countered through transparent, participatory and collaborative action in compliance with an agreed international legal framework, particularly UNCAC”.

Swiss NGOs criticise new report on stolen assets of North African dictators

André Rothenbühler, Aktion Finanzplatz Schweiz

A report from the Financial Market Supervisory Authority from Switzerland (FINMA) on the new cases of stolen assets related to the convulsions in Northern Africa (Ben Ali, Mubarak, Gaddafi families) and the role of the banks, has been sharply criticised by Swiss NGOs.

For the Swiss NGO Coalition against stolen assets of corrupt governments and officials[1], the Swiss banks come off too well in this report. The Swiss Coalition argues that FINMA only examined those few banks that reported suspicious funds based on the freezing orders of the Government early this year, but other banks were not taken into consideration. Moreover, the report only deals with the assets of politically exposed persons (PEP) on the sanction lists of the Swiss Government. It leaves open whether other suspicious funds have found their way to the examined Swiss banks through straw men or offshore companies.

The twenty banks that were included in the report identified only 22 out of 29 client relationships with PEPs. Seven customer relationships were not identified as PEP, or were recognized but not treated as such. As a result of the investigations, FINMA launched an administrative procedure against four banks because of presumably severe breaches of regulations. However FINMA reveals neither the concrete customer relationships with PEPs that were examined and questioned, nor the names of the banks that failed in their obligations.

Another open question is why the banks did not report the suspicious funds earlier to the Money Laundering Reporting Office of Switzerland based on the existing Swiss Money Laundering Act (MLA). FINMA makes no proposals as to how to improve the law. The Swiss NGO Coalition sees a clear need for action, for example to shift the burden of proof for PEPs and to extend the MLA to real estate and commodity trading activities. In addition, the NGOs call for a stronger control of the banks by FINMA.

1. The Coalition members are Aktion Finanzplatz Schweiz, Alliance Süd, Bread for All, Berne Declaration, Plate-Forme Haïti de Suisse, Swiss Catholic Lenten Fund and Transparency International Switzerland.

The social damage of corruption – recognition and reparation

Dr. Juanita Olaya, Impactools, empirical research for advocacy

Fighting corruption is of little meaning if it doesn’t actually translate into changes in the quality of life of the people. Preventing corruption is necessary and enforcing the law as well, but they are not enough if the consequences of corruption remain untouched. Repairing the damage of corruption requires replacing the broken bridge negligently built by corrupt contractors and delivering the funds that were meant to reach a hospital, had they not been kept in private pockets along the way.

But corruption also damages something that belongs to societies as a whole: the trust, credibility and legitimacy of its institutions. This is part of what we call social damage. How to restore that? Social damage is hard to measure, but not hard to believe. In fact, prosecutors and judges in countries like Costa Rica or Brazil are increasingly addressing it and seeking ways to repair the damage caused by corruption to society.

The UNCAC is already well prepared for that. Its Article 34 requires countries to “address the consequences of corruption”. Do we know now, thanks to the UNCAC country reviews, how many countries give entitlement to victims -individual and collective- to seek damage reparation under civil or criminal procedures? Which countries foresee explicitly or implicitly in their laws reparation for social damage caused by corruption? Are we paying enough attention to this article of the Convention?

In 2007, UNODC and the World Bank estimated that USD $40 to $60 billion were being stolen each year. This is more or less the amount that the World Bank estimates as the additional aid needed to reach the Millennium Development Goals in 2015. The math is clear. If all those assets had been recovered and were used to restore the damage caused by corruption, provided they were used well, we would be asking different questions today.

To learn more about the concept of social damage, have a look at the session dedicated to it at the 14th IACC.

Using assets confiscated from criminal organisations for social purposes

Pedro Gomes Pereira – Basel Institute on Governance

Civil society seldom has the opportunity to play a pro-active role in determining the use of the proceeds and instrumentalities of crime which have been confiscated in favour of the State. However it is of paramount importance to determine where these disposed/recovered assets go to. We have to ensure that, on one hand, portions of them can be reused by civil society, and on the other hand, that they actually help empower civil society to ensure greater transparency on the use of these confiscated assets by the State. As of today, confiscated assets in many countries are ending in the general budget of the State, without any specific destination. Learn about the projects of the International Center for Asset Recovery here.

Preventing corruption: taking into account young people

Gina Romero, OCASA

Members of OCASA, Colombia, in the framework of a project that seeks to involve young people in the practice of an informed, active and conscious democracy. © OCASA

If we could do a word cloud relating to COSP4 (excluding corruption, review mechanism and asset recovery), the Arab spring would appear in huge letters. It was vivid in all the conference interventions what had happened in the last months, during which the people in different countries from that part of the world had stood up against corrupt governments and systems. It was no secret that youth had lead and sustained those social movements.

In this context, it was enlightening to see that in the conference preparatory documents on prevention one of them focused on the role of youth, and that the Secretariat has proposed the work with youth as to be the main action focus of the Open-ended Intergovernmental Working Group on Prevention in 2013.

That is why COSP4 started with great expectations for those seeking to involve the new generations in the fight against corruption. However, there was very little interest from the official delegations in discussing the topic or in proposing new approaches. In the end, the resolution on prevention mentioned important topics, but we will have to follow up closely from now on to see whether concrete measures are put in place to involve the youth as key actors for a successful prevention of corruption.

South African Secrecy law threatens access to information

Shahnaaz Parker, Institute for Security Studies, South Africa

Thousands protested in the streets of Cape Town against the Protection of State Information Bill, 27 October 2011. © Terry February

In a surprise move, and contrary to the global trend for greater access to information, the South African Parliament the controversial, Protection of State Information Act in late November 2011. This law, which is informally known as the ‘Secrecy Bill’, threatens to severely limit the access to and possession of state information deemed to be linked to a broad definition of national security, as disclosure thereof could lead to harsh criminal penalties such as a maximum 25-year prison sentence.

South Africa ratified the UNCAC in 2004 and had anticipated its provisions by passing legislation such as the Promotion of Access to Information Act and the Protected Disclosures Act, in order to promote greater access to information and the protection of whistleblowers. So the ‘Secrecy Bill’ undermines South Africa’s otherwise generally rigorous implementation of the UNCAC. Critics argue that the law is too broad in scope (including government agencies other than the security sector); criminalises the mere possession of information (not just the leaking of information by state officials); and lacks a public interest defence clause that would prevent the criminalization of whistleblowers, community activists and investigative journalists. This may directly infringe on public interests in addressing issues of corruption, maladministration and organised crime.

Access to information is recognised as a basic right by the South African Constitution and is a vital component of a vibrant and transparent democracy. The bill will still go before the National Council of Provinces (second house of Parliament) and civil society organisations, religious leaders and labour unions continue to call for its revision in order to protect the interests of citizens in combating corrupt practices. For more information also see the Right2Know Campaign.

Measuring corruption: BPI and CPI launched

On 2 November and 1 December 2011, Transparency International launched this year’s editions of the Corruption Perception Index (CPI) and the Bribe Payers Index (BPI), its best known tools to estimate corruption levels. The first index looks at corruption in the public sector -the demand side-. It is based on data from 17 opinion surveys. The second index deals with the supply side of international corruption, and estimates the propensity of firms from the world’s largest economies to bribe abroad.

The CPI 2011 ranks 183 countries and territories by their perceived levels of public sector corruption. “This year we have seen corruption on protestors’ banners be they rich or poor. Whether in a Europe hit by debt crisis or an Arab world starting a new political era, leaders must heed the demands for better government,” said Huguette Labelle, Chair of TI.

Two thirds of ranked countries in score less than 5. New Zealand ranks first, followed by Finland and Denmark. Somalia and North Korea (included in the index for the first time), are last. Most Arab Spring countries rank in the lower half of the index, scoring below 4. At the same time Eurozone countries suffering debt crises, partly because of the failure of public authorities to tackle bribery and tax evasion that are key drivers of debt crisis, are among the lowest-scoring EU countries.

The BPI 2011 draws from a survey of 3,000 business executives from developed and developing countries, in order to rank 28 leading export countries by the likelihood of their companies to bribe abroad. The conclusion is that companies from Russia and China, with investments of US $120 billion overseas in 2010, are seen as most likely to pay bribes abroad. At the other side of the scale, companies from the Netherlands and Switzerland are seen as least likely to bribe.

Letter to the High Level Forum on Aid Effectiveness #4

The UNCAC Coalition addressed a letter to governments on the occasion of the Fourth High Level Forum on Aid Effectiveness (HLF-4) that took place on 29 November – 1 December 2011. The letter contained recommendations to further strengthen the effectiveness of aid with concrete anti-corruption measures through:

1. Acknowledging the importance of good natural resources governance for domestic resource mobilisation
2. Denying safe haven to corrupt officials
3. Freezing and recovering illegal assets
4. Developing comprehensive whole-of-government donor anti-corruption strategies

• Implement fully our respective commitments to eradicate corruption, enforcing our laws and promoting a culture of zero tolerance for all corrupt practices. This includes efforts to improve fiscal transparency, strengthen independent enforcement mechanisms, and extend protection for whistleblowers.
• Accelerate our individual efforts to combat illicit financial flows by strengthening anti-money laundering measures, addressing tax evasion, and strengthening national and international policies, legal frameworks and institutional arrangements for the tracing, freezing and recovery of illegal assets. This includes ensuring enactment and implementation of laws and practices that facilitate effective international cooperation.”

You can read the declaration in full here.