Report: Conference On Fast-Tracking The Implementation Of The UNCAC In Southern Africa

Introduction

The Helen Suzman Foundation (HSF) was invited to participate in a regional conference by the United Nations Office on Drugs and Crime (UNODC). The conference’s main aim was to produce a set of recommendations on how best to fast-track the implementation of the United Nations Convention Against Corruption (UNCAC).

Participants gathered in Livingstone, Zambia from 14 to 18 October 2019. It was a hot, dry time of year where even the famed ‘smoke that thunders’ Victoria Falls was reduced to a whisper by unseasonably delayed rain. The air-conditioned boardrooms were most welcomed by representatives from Angola, Botswana, Malawi, Mozambique, Namibia, South Africa, Zambia and Zimbabwe as they came together to discuss, debate, and devise effective responses to pervasive corruption that threatens the development of the region.

Attendees were drawn from a cross-section of stakeholders, including private sector entities, civil society organisations, and members of the academy. Government representatives were also present, consisting of ‘technical experts’ as well as national decision-makers, policy-makers, and high-level state representatives.

This brief will provide a concise overview of the UNCAC, outline the purpose and methodology of the conference, describe some of the discussions held there including an overview of the HSF’s inputs, and summarise some of the key recommendations arising from the conference.

The UNCAC

The UNCAC is hailed as the ‘only legally binding universal anti-corruption instrument’.[1] It came into effect on 14 December 2005, ninety days after the 30^th country agreed to bind itself to it.[2] South Africa signed the UNCAC on the very first day that it became open for signature[3], and ratified it almost a year later on 22 November 2004.[4] South Africa was the 8^th African country to ratify it, and the 13^th country worldwide.[5] Presently, 186 states are party to the UNCAC.

The Convention’s ambit spans five key areas:[6]

• Preventive measures;
• Criminalization and law enforcement;
• International cooperation;
• Asset recovery; and
• Technical assistance and information exchange.

It is concerned with various forms of corruption, including ‘bribery, trading in influence, abuse of functions, and various acts of corruption in the private sector’.[7]

By ratifying the UNCAC, South Africa agreed to subject itself to peer review to determine its progress in implementing the UNCAC.[8] The review mechanism is organised into cycles. The second cycle of review concerning corruption prevention and asset recovery is currently underway.

The UNODC fulfils the role of secretariat for the UNCAC, and as such was the convenor of the conference.

Purpose and Methodology

Purpose

The conference sought to ‘build and foster partnerships and create a regional platform to fast track the implementation of the UNCAC’. This was to be done by bringing together diverse stakeholders to devise a set of recommendations that could act as a catalyst for the UNCAC’s implementation. In other words, the goal was to come up with an incisive, outcomes-oriented checklist of recommendations tailored to the unique considerations of the region.[9]

All of this is in support of Sustainable Development Goal 16, which concerns the promotion of ‘peaceful and inclusive societies for sustainable development’, ‘provid[ing] access to justice for all’ and ‘build[ing] effective, accountable and inclusive institutions at all levels’. Key sub‑clauses relevant to corruption include inter alia:

• By 2030, significantly reduce illicit financial and arms flows, strengthen the recovery and return of stolen assets and combat all forms of organized crime
• Substantially reduce corruption and bribery in all their forms
• Develop effective, accountable and transparent institutions at all levels
• Ensure responsive, inclusive, participatory and representative decision-making at all levels
• Broaden and strengthen the participation of developing countries in the institutions of global governance.

Methodology

Prior to the conference, four key thematic areas were selected to form the basis of discussions.[10] These were:

• Inter-agency cooperation, investigation and prosecution of anti-corruption cases, with a focus on policy development;
• Whistleblowing protection vs. protection of reporting persons in criminal proceedings;
• Asset disclosure, including asset declaration, detection of illicit enrichment, beneficial ownership and how to undertake increased scrutiny of Politically Exposed Persons; and
• Identifying and managing conflict of interest in the context of public procurement.

The conference was divided into two stages, namely, the ‘Technical Segment’ and the ‘High Level Segment’ respectively. The two-stage approach allowed for layers of consultation and discussion, providing opportunities for many rounds of revision.

The ‘Technical Segment’ stage involved civil society experts and government technical experts working in parallel sessions. Each of those groups broke up into smaller breakaway groups which set about developing their own set of recommendations organised by thematic area. These recommendations addressed what they believed were the most pressing needs to further anti-corruption efforts.

The HSF was placed into the ‘whistleblower and witness protection’ thematic area, and subsequently went on to serve as civil society spokesperson in the ensuing discussions around this issue.

The recommendations generated by breakaway groups organised by thematic area were refined by a general discussion by all civil society participants together. Government technical experts did the same in parallel.

Then, spokespersons from civil society and government technical experts came together to combine their recommendations into a single document, which took into account points of agreement and divergence in the recommendations proposed by government and civil society respectively. This was discussed and refined in a further plenary session.

The second stage, the ‘High-Level Segment’, brought ‘national decision and policy makers, high-level representatives from participating countries, private sector and development partners’ into the discussion. In essence, the involvement of these persons was to enable ‘buy-in’ from the relevant decision-makers. This second stage provided yet another opportunity for discussion and amendment to the suggested recommendations.

Content of the discussions

A number of illuminating deliberations highlighted the areas of congruence and variance with regard to anti-corruption policies in the region. In considering what steps should be taken to bolster anti-corruption efforts, a few familiar themes emerged. These included greater collaboration between governments in the form of aiding each other to detect and prosecute illicit financial flows, as well as sharing legislative and policy best practice. Collaboration could also take place between governments and other stakeholders, such as members of the private sector and civil society organisations.

Another common refrain was the need for enhanced transparency. This related to, for instance, transparency regarding the work of anti-corruption agencies in detecting, investigating, and prosecuting corruption; transparency in the form of disclosure of beneficial ownership; as well as transparency in relation to the holding of assets by politically exposed persons. Information is a valuable weapon in the fight against corruption. The discussions also highlighted the importance of organising information into systems in an intelligible fashion so that it can be used effectively. Another counterbalance against transparency is the need to ensure that sensitive information is maintained securely. This means that states would do well to ensure that they make use of technology that is able to meet the many requirements in relation to the collection, organisation, protection, and sharing of information that can aid in the fight against corruption.

Another key area of focus is the need to ensure that citizens are active stakeholders in anti-corruption initiatives. Many of the recommendations called for the creation of programmes to educate the public regarding corruption – what corruption is, how to report it, and how anti-corruption agencies operate to combat it. This is crucial as part of a ‘whole of society’ approach that ensures that individual citizens appreciate their own interest in fighting corruption, and consequently are able to not only resist participating in corrupt activities, but also blow the whistle should they suspect that others are engaging in them. This is arguably something that is sorely lacking, not only in South Africa but in a number of countries across the region.

With regard to whistleblowing, at the technical phase, civil society and government agreed in a number of respects. Civil society highlighted the need for protections to cover both whistleblowers and witnesses. While a whistleblower may also be a witness, this is not always the case, and so it is important that protections are inclusive. Whistleblowers also need to be able to make disclosures anonymously and/or confidentially, particularly as states are largely unable to ensure whistleblowers’ safety. Reports of physical violence perpetrated against whistleblowers remain, tragically, all too common.

One means to address the many issues that whistleblowers face is to establish agencies (within government or with governmental support) that could offer legal advice and representation, mental health support, and provide an avenue to access physical protection. The advantage of such agencies is that they could also gather information on how whistleblower protection laws function practically, which could be used when reviewing such legislation with a view to amendment. While government technical experts supported the recommendation to ‘consider’ establishing such agencies, whether the recommendation is ever taken further than that remains doubtful. The concept of such units is by no means new; however, government decision-makers resist their establishment by referring to resource constraints. One hopes governments embrace the recommendation beyond a mere ‘consideration’.

This may be wishful thinking for the region, unfortunately, given that some countries do not even have dedicated whistleblower protection laws in place at all. South Africa has the potential to guide and assist its neighbours in this regard – while at the same time remaining aware of its own deficiencies in relation to whistleblower protections and committing to address these.

A fascinating presentation delivered towards the end of the conference highlighted the relationship between corruption and gender. New research has been done trying to determine whether factors relating to gender affects the propensity to engage in (or refrain from) corrupt activities, as well as whether gender affects the way corruption is investigated and punished. The full report is yet to be released, but this is certainly an issue deserving of further attention.[11]

Recommendations

After further written engagement with stakeholders, the recommendations were finalised in February 2020, although the UNODC is yet to publish them generally. They are, as expected, couched in language that is non-specific and non-imperative, using verbs such as ‘strengthen’, ‘foster’, ‘raise public awareness’, and ‘consider’ in many instances. The reason for this is two-fold: first, these are merely recommendations and cannot bind governments; and secondly, more strident language had to be tempered in order to allow parties to reach consensus. It was unavoidable that this process would result in recommendations that, to some, would seem to not go far enough.

The recommendations leave a great deal of work to do be done by the respective countries. Many of the recommendations refer to proposed research and needs assessments, as well as the development of guidance and good practice notes and policies. There is no doubt that such work is necessary. However, it is likely to have been done in some measure already, by civil society if not by governments. The issue then is for governments to coordinate information gathering around corruption prior to policy making, then play a key role in the policy development phase, and thereafter to commit to implementing those policies. It is not always specified whether these proposed actions are country-specific or entail collaboration between countries in the region. However, good practice guides for the region can allow for greater detail to be introduced that could speak to the unique concerns and resource constraints limiting the various countries’ ability to implement all of the recommendations.

The recommendations are no panacea. Instead they can be viewed as a compass, helping to direct anti-corruption efforts towards what could be more meaningful and impactful actions. Each country in the region would do well to evaluate their progress against the listed recommendations, and take them seriously when developing anti-corruption policies and strategies.

Conclusion

There is no doubt that the conference offered a valuable opportunity for people dedicated to fighting corruption to meet and share their work. The participation of civil society, government technical experts, and ‘high level’ government officials and members of the private sector created a space for cross-pollination of ideas. Moreover, stakeholders were able to share their perspectives on the challenges they face in rolling out anti-corruption measures.

The recommendations themselves can serve as a benchmark against which to assess how far we have come in tackling corruption, and what work needs to be done. They are, however, not binding on state parties. This is the heart of the issue: there is no shortage of expert guidance and well-researched proposals on how to curb corruption – many resources exist in international and more localised contexts. Many civil society representatives, for instance, spoke to a diverse array of research and advocacy projects both planned and underway, many offering innovative approaches. The inputs from government technical experts also showed that governments themselves are alive to corruption-related risks and ways to mitigate them.

What is lacking is will from political actors to take such recommendations seriously: to direct resources towards anti-corruption projects, to initiate amendments to legislation and policy, to hold bad actors accountable where they flout laws and ethical codes, and to subject themselves to these systems.

Will these recommendations be enough to overcome political inertia – or worse, unwillingness – to properly address corruption in the Southern African region? That they were compiled under the auspices of the UNODC may carry some weight. Indeed, the political representatives in the room put up limited resistance to the substance of the recommendations, instead making comments of a technical nature or to fine-tune them. A cynical approach could see this as governments participating for the sake of it, with no real intention of acting upon the recommendations.

A more hopeful view, on the other hand, would be one where governments take the recommendations to heart by conducting a sincere, genuine assessment of how to use them to improve current anti-corruption programmes, and using the results of that assessment to implement real change.

Corruption should have no place in Southern Africa. The dry walls of rock forming what should be the Victoria Falls were a stark reminder of other looming threats that will soon need our attention and resources.[12] Corruption undermines the collective ability not only to face these risks, but it also prevents the region from flourishing to its full potential so that it can afford its inhabitants a dignified existence. Nothing short of the most concerted efforts from all stakeholders – government, the private sector, civil society, the academy, communities, and individuals – is required to avert disaster.

Cherese Thakur
Legal Researcher
cherese@hsf.org.za