IN FOCUS: Asset recovery
Mismanaged public funds recovered in Nigeria thanks to SERAP
Adetokunbo Mumuni, Socio-Economic Rights and Accountability Project (SERAP), Nigeria
Following information from whistleblowers and a petition submitted by the NGO SERAP, the Nigerian Commission for Independent Corrupt Practices (ICPC) investigated allocations to the Universal Basic Education Commission (UBEC), and discovered massive corruption and mismanagement of the funds, with N54.78 billion (US$351.54 million) allegedly missing. The investigation by the ICPC has already resulted in the recovery of N3.4 billion (US$21.82 million) funds, intended for the education of Nigerian children.
After the ICPC presented its report, SERAP filed a case before the ECOWAS Court in Abuja, arguing that the corruption in the UBEC amounted to a denial of the right to a free, quality and compulsory education for Nigerian children. In a landmark December 2010 judgment, the ECOWAS Court upheld SERAP’s submission and noted that there was prima facie evidence of embezzlement of funds. The Court stated that while steps should be taken to recover funds and prosecute the suspects, the Nigerian government should provide the funds necessary to cover the shortfall. The Court also asked the government to ensure that the right to free, quality and compulsory education is not undermined by corruption, and held that the UBEC has the responsibility to ensure that funds disbursed for basic education are properly used for this purpose.
SERAP has asked the ECOWAS Court to issue a writ of execution against the Federal Government and the UBEC to secure effective implementation of the Court’s judgement. The NGO has requested the Nigerian government to publicly acknowledge the judgment, and is now establishing a coalition of civil society and professional bodies to put pressure on the government to fully implement the ECOWAS Court right to education judgment.
And as the elation faded it was replaced by the utter shock: recovering stolen assets in Egypt
Engi M. El Haddad, Afro-Egyptian Human Rights Organization (AEHRO)
Egyptians woke up on 12 February 2011 to two new realities: Hosni Mubarak was no longer the President of Egypt, and billions of US dollars had been channelled outside the country by his family and trusted aides. As the Public Prosecutor tried to make sense of the thousands of corruption reports he was receiving, the Egyptians wondered if they would ever see this money again.
Our answer was a resounding “Yes”, as long as we acted quickly based on the UNCAC and asked for international support. The latter was practically instantaneous: with the UNCAC Coalition issuing its announcement, Coalition member organisations led by SHERPA helped us in getting legal support in France, Switzerland & the United Arab Emirates, and Avaaz sponsored our call to freeze the funds obtaining over 800,000 signatories to a petition that was delivered to the G20 Ministers of Finance meeting in Paris.
Irrespective of the outcome – and as an Egyptian I do hope we can get some of our money back – this support was extensively covered in the local media and led to immediate repute and respect for the UNCAC and the civil society coalition. Now the full and transparent implementation of the UNCAC is a public mandate -unlike during the 3rd Conference of States Parties in Qatar in 2009, when Egypt blocked the UNCAC Coalition’s demand to include civil society in the monitoring of the Convention’s implementation. What a difference a couple of years and a revolution can make!
When States fail to request legal assistance under the UNCAC – the case of Egypt
Tim Daniel, Edwards Angell Palmer & Dodge UK LLP, UK
The European Union adopted a Council Regulation on 21 March 2011 that provides for restrictive measures directed against certain persons and entities in view of the situation in Egypt, specifically those identified as responsible for the misappropriation of Egyptian State funds. As a result, on 22 March the UK Treasury published the Egypt (Asset Freezing) Regulations, by which the Asset Freezing Unit of the Treasury published relevant lists.
However, no court actions have as yet been commenced by the UK authorities to recover assets. As required under the UNCAC, specific requests from the appropriate authority in Egypt for mutual legal assistance would have to be made first. Hence a fundamental shortcoming under UNCAC is that difficulties will arise if such requests are not made.
Switzerland has recently sought to surmount this kind of problem by introducing the Federal Act on the Restitution of Assets of Politically Exposed Persons obtained by Unlawful Means (RIAA), which came into force on 1 February 2011. The Act governs the freezing, forfeiture and restitution of the assets of politically exposed persons, in cases where a request for mutual assistance cannot succeed in the requesting state due to the failure of its judicial system.
It is to be hoped that other states will consider introducing similar legislation, as it is by no means certain that civil society groups can ‘fill the gap’ of failing States, particularly in common law countries.
UNCAC enforcement and review
India ratifies the UNCAC amid civil society anti-corruption protests
Anupama Jha, Transparency International India
Vijay Murugesan, 5th Pillar, India
In recent times, the people of India have come out onto the streets demanding effective and transparent administration free of corruption. Several activists, members of civil society and leaders of people’s movements have been able to mobilise support to pressure the government into passing anti-corruption legislation and setting up an independent agency.
The anti-corruption movements led by Indian activist Anna Hazare and yoga guru Baba Ramdev come both out of a series of corruption scandals involving elected representatives, which rocked the country in quick succession. Hazare’s decision to conduct a fast reflected the collective angst of people, youth, women and children who wanted strong and effective measures to deter politicians, administrators and Ministers from indulging in corrupt practices. Baba Ramdev has been demanding the recovery of stolen assets, mainly proceeds of crime and corruption stashed in various countries outside India. He suggested that black money should be recovered and declared a national asset. He also demanded that the government should ratify UNCAC.
As a result of the pressure exerted by civil society, the government agreed to set up a committee to strengthen the existing legal and administrative framework to deal with the generation of black money. For example, bribe-giving is still not an independent offence in India under the Prevention of Corruption Act, there is still no whistleblower protection legislation in India.
The proposed Jan Lokpal Bill, promoted by Anna Hazare, has gained support. It callsfor an independent body to investigate and prosecute officials involved in corruption charges. Until now, all anti-corruption bodies have been under the control of the State with very little independent means to deal with corruption involving political leaders in power. Indian citizens are hoping that the Lokpal Bill will redress this. Like the Supreme Court and Election Commission, this national body is meant to be entirely independent of political influence.
In this context, and after a long wait of five years after the signature, India has finally ratified the UNCAC. Several civil society organisations see the Lokpal Bill as an instrument that would help to enact the UNCAC effectively, particularly by covering article 30 of the Convention which deals with prosecution, adjudication and sanctions. One may question whether the Indian government is at the moment really serious about checking corruption, but at least we know the task for civil society is cut out.
Civil society participates in workshop training for government officials in Colombia
María Angélica Sánchez, Transparencia por Colombia
UNODC organized in Bogotá, on 24–27 May 2011, a “National Training Workshop on the review mechanism for the implementation of the UNCAC: Focus on criminalization and law enforcement”. Government officials from 17 state agencies participated.
Although the workshop was a closed event targeting public officials, thanks to our partnership with UNODC Colombia, Transparencia por Colombia (TPC) was able to open a space for civil society. TPC was a lecturer in 4 training modules, delivered a keynote speech at the opening ceremony with the Minister of Interior and the Deputy Attorney General. Together with other CSOs and private sector associations such as OCASA, Red de veedurías ciudadanas and the Colombian Chamber of infrastructure, Transparencia por Colombia supervised as well the entire workshop.
TPC was able to learn from the analysis by experts and public officials about the progress and difficulties in the implementation of UNCAC; it opened cooperation channels with public officials in charge of completing the self-assessment questionnaire and brought confidence in the role of CSOs in the review process.
The experience of an on-site visit in the framework of the UNCAC review mechanism
Rocío Noriega, Chile Transparente
The countries tasked in the first year of the UNCAC Review Mechanism to evaluate UNCAC implementation in Chile were El Salvador and Ukraine. In March 2011, three representatives from El Salvador and two from UNODC visited Chile, meeting with several public institutions such as the Comptroller General of the Republic, the Public Ministry, the Securities and Insurance Supervisor, the State Defense Council, the Financial Analysis Unit and the Foreign Affairs Ministry – the institution coordinating UNCAC implementation – as well as with the civil society organisation Chile Transparente. It was for us a very good experience since we could discuss the content of our parallel review report and other topics related to legal issues, such as the declaration of assets and interests to avoid conflicts of interest and as a way to control public officials.
Looking at the future, it will be important to disseminate among civil society organisations the governmental report concerning advances in UNCAC implementation, so that suggestions can be made to the report. Alternatively, the governmental and civil society points of view could be included together in one single report. In the case of this first visit to Chile, we did not have access beforehand to the official governmental report. We also consider important that the reviewing experts are given with enough anticipation both reports – the governmental and civil society reports – so that they can have a chance to analyse some particular aspects during their visit.
Meeting of the Implementation Review Group and start of year 2 of the review mechanism
Gillian Dell, Transparency International Secretariat
The UNCAC Implementation Review Group (IRG) met at the UN in Vienna on 30 May – 3 June 2011 for its second session. This meeting was noteworthy for several reasons.
First of all, there were only two completed official executive summary reports published at the time of the meeting and no full review reports. The May IRG meeting did not, as originally foreseen, mark the end of the first year of the UNCAC review process and was not able to discuss the results of the review in the 26 first-year countries. Executive summaries were only presented for Finland and Spain, while the other 24 reports were still pending. Moreover, the published information on the review process indicated that many of the country reviews were still underway so that it was also difficult to make an assessment of the process based on a set of completed reviews. A UNODC document submitted to the IRG showed that the review process for most countries was taking well beyond the originally-envisaged 6 months, with some expected to take up to 12 months. The IRG is expected to have more country reports to discuss at its resumed second session on 7 – 9 September 2011.
Nevertheless the meeting did mark the start of the second year of the UNCAC review process, as the IRG drew lots for the next country reviews and distributed a provisional list of results. These were not immediately published though, due to some country-specific issues. Some of the countries selected as reviewers were unacceptable to the countries reviewed. An additional problem is that a few countries that deferred their review from the first to the second year now tried to defer again to the third year. This is not allowed by the rules and presented a dilemma to be resolved. The country pairings were recently posted.
Finally, this IRG meeting was also noteworthy because civil society organisations (CSOs) were again not invited and not involved in the proceedings. Governments remained deadlocked over whether to allow CSO participation and if so how. There was one new proposal: The Russian delegation reportedly proposed following the example of the OECD Working Group on Bribery which holds annual meetings with CSOs and the private sector to solicit feedback about their review process for the OECD Anti-Bribery Convention. This would be a major step backwards from CoSP Rule 17. Another proposal called for setting aside a segment of each IRG meeting for civil society presentations. But some delegations were firmly opposed to any CSO involvement and others were unwilling to countenance a dilution of the CoSP Rule 17 of the Rules of Procedure that allows CSOs to participate as observers in plenary sessions of the Conference of States Parties. They cite a Legal Opinion of the UN Office of Affairs, and argue—as the Coalition did in its November Statement—that the same rule should apply to the IRG. In the end, no agreement could be reached on an interim compromise for the resumed second session in September 2011 sp once again CSOs will not be invited to that meeting. The decision on this issue has been postponed to the 4th Conference of States Parties due to take place in Marrakesh, Morocco, 24 – 28 October 2011.
New report shows stalled enforcement under OECD Anti-Bribery Convention
Transparency International (TI) has published the 2011 edition of the Progress Report on Enforcement of the OECD Anti-Bribery Convention, which indicates no improvement in the past year and warns that this could signal a dangerous loss of momentum in the fight against corruption. The report’s authors, Fritz Heimann, Gillian Dell and Kelly McCarthy, call for high-level political action to strengthen enforcement.
Of the 37 countries covered by the report, only seven show active enforcement of the landmark Convention, nine countries a moderate enforcement, and 21 countries little or no enforcement. Moreover, according to the OECD, only five parties to the Convention sanctioned individuals or companies in the past year. Where political will is lacking, OECD’s country reviews have not been enough to achieve active enforcement. An adequate enforcement will require renewed political commitment by government leaders in the lagging countries. Without it, one of the success stories of the OECD’s past decade may start to unravel.
The report provides country-by-country analysis of 37 OECD Convention countries, based on inputs from TI experts in those countries, including reports on cases and investigation in those countries and highlighting access to information issues. The report also showcases Nigeria because of the large number of cases and investigations in multiple jurisdictions involving foreign bribery allegations in that country. The resulting settlements have involved more than US$ 1.7 billion in fines and disgorgement.
The Corruption Research Group at the University of Surrey
Indira Carr, University of Surrey, UK
The aim of the Corruption Research Group (CRG) is to foster exchange between academics, doctoral students, policy makers, international organisations, legal practitioners, enforcement and investigative authorities, business representatives, and non-governmental organisations, on research findings and new lines of enquiry for further research into corruption. It also wants to facilitate the organisation of seminars and workshops, and explore funding opportunities for research. The inspiration to establish this international interdisciplinary group came from the participants of a series of workshops on corruption held on 6-7 July 2010 by the Faculty of Management and Law at the University of Surrey.
To become a member of CRG please contact Indira Carr. Further information on the CRG and its members can be found on their website.
A workshop is being planned at Surrey University for the Spring of 2012. Please send any ideas for themes to Indira Carr at the above e-mail address.
The Anti-Corruption Research Network (ACRN): a global meeting point for corruption researchers and research users
Farzana Nawaz, Transparency International Secretariat
The ACRN features the latest and most interesting research on corruption from a variety of academic disciplines (such as law, political science, sociology, business, etc.) and from different corners of the world. It includes insights from think-tanks, civil society organisations and international development organisations. By creating a common global space to share and discuss corruption issues, ACRN aims to foster greater debate and understanding on corruption and the ways to combat it.
Above all, ACRN aims to be a community driven by its members. Therefore, please let us know about new research that you have published, interesting datasets or information on courses and curriculum. Do not hesitate to post job adverts, calls for papers and use it to promote conferences and events. Registration to ACRN is free and open to the entire anti-corruption community.
UNCAC Coalition Updates
New Coordination Committee elected for the UNCAC Coalition
The elections held in 18 – 22 April 2011 resulted in the constitution of the new Coordination Committee for the UNCAC Coalition. Congratulations to the new team!
It will hold its first in-person meeting in Vienna on 3 – 4 July 2011. This is the composition of the 12-member Committee:
|Organisation / Individual Elected
|Americas Regional Seat
|Civil Association for Equality and Justice (Argentina)
|East Asia, Central Asia and Pacific Regional Seat
|Transparency and Accountability Network (Philippines)
|Europe Regional Seat 1
|Europe Regional Seat 2
|Transparency International – Macedonia
|Middle East and North Africa Regional Seat
|Saad Filali MEKNASSI
|South Asia Regional Seat
|5th Pillar (India)
|Sub-Saharan Africa Regional Seat 1
|Africa Centre for Open Governance (Kenya)
|Sub-Saharan Africa Regional Seat 2
|Zero Corruption Coalition (Nigeria)
|International Member Organisation Seat 1
|International Member Organisation Seat 2
|Individual Affiliate Member Seat
|Coalition Secretariat (Permanent Seat)
|Transparency International Secretariat
- Meeting of the Intergovernmental Working Group on Prevention: Vienna, 22 – 24 August 2011
- Meeting of the Intergovernmental Working Group on Asset Recovery: Vienna, 25 – 26 August 2011
- Implementation Review Group – resumed second session: Vienna, 7 – 9 September 2011
- Conference of States Parties (CoSP): Marrakesh, Morocco, 24 – 28 October 2011
- Deadline for registration to the COSP for Non-ECOSOC accredited NGOs: 29 July 2011
The UNCAC Coalition is a global network of almost 350 civil society organisations in over 100 countries, committed to promoting the ratification, implementation and monitoring of the United Nations Convention against Corruption.
For this purpose, we mobilise civil society action at international, regional and national levels.