What is UNCAC?

The United Nations Convention against Corruption (UNCAC) is an international anti-corruption treaty adopted by the UN General Assembly in October 2003. It represents a remarkable achievement: a global response to a global problem. With 182 countries bound by UNCAC so far (as of 11 July 2017), it is unique not only for its worldwide coverage but also for the scope of its provisions, recognising the importance of both preventive and punitive measures. It also addresses the cross-border nature of corruption with provisions on international cooperation and on the return of the proceeds of corruption. States parties, countries that have ratified the Convention, are also obliged to help each other to prevent and combat corruption through technical assistance, defined broadly to include financial and human resources, training, and research. The Convention further calls for the participation of citizens and civil society organizations in accountability processes and underlines the importance of citizens’ access to information. The UN Office on Drugs and Crime (UNODC) in Vienna serves as secretariat for UNCAC.

What are the contents of UNCAC?

What does implementation of UNCAC actually entail; what are its provisions? What follows is a description of the substantive chapters of the Convention, as well as an analysis of what UNCAC can and cannot do. It is important to note that many of UNCAC’s provisions are mandatory, while others are either ‘strongly encouraged’ or optional (see annex for an overview of mandatory provisions). In addition, most provisions of the Convention make some reference to working within the principles of a State’s domestic law, which allows significant room for different interpretations of the Convention’s requirements in any given country. The key chapters of the Convention are described below, including how their implementation will be monitored.

Chapter II: Preventive measures

States parties are obliged to adopt coordinated policies that prevent corruption and designate a ‘body or bodies’ to coordinate and oversee their implementation.[i]ff4475922d26 The preventive policies covered by the Convention include measures for both the public and private sectors. These include, among others, transparent procurement and sound financial management, a merit-based civil service including clear conflict of interest regimes, effective access to public information, auditing and other standards for private companies, an independent judiciary, active involvement of civil society in efforts to prevent and combat corruption, and measures to prevent money laundering.

Chapter III: Criminalisation and law enforcement

States parties must criminalise bribery (both the giving of an undue advantage to a national, international or foreign public official and the acceptance of an undue advantage by a national public official), as well as embezzlement of public funds. Other offences that states parties are required to criminalise include obstruction of justice and the concealment, conversion or transfer of criminal proceeds. Sanctions extend to those who participate in or attempt to commit corruption offences.

Acts that states are encouraged – but not required – to criminalise include acceptance of bribes by foreign and international public officials, trading in influence, abuse of function, illicit enrichment, bribery and embezzlement within the private sector, money laundering and the concealment of illicit assets. Chapter III also covers other issues related to enforcement and prosecution, including protection of whistleblowers and witnesses in corruption cases, as well as remedies for corruption, such as freezing assets and compensating victims.

Chapter IV: International cooperation

States parties are obliged to assist each other in cross-border criminal matters. This includes, for example, gathering and transferring evidence of corruption for use in court. The requirement of dual criminality (that the alleged crime for which mutual legal assistance is sought must be criminal in both the requesting and requested countries), which has traditionally hindered cooperation, is loosened. Cooperation in criminal matters is mandatory. In civil and administrative matters, it must be considered.

Chapter V: Asset recovery

A ‘fundamental principle’ of the Convention, and one of its main innovations, is the right to recovery of stolen public assets. According to many observers, Chapter V is the main selling point of the Convention, and the reason why so many developing countries have ratified it. The UNCAC provisions lay a framework for countries to adapt both their civil and criminal law in order to facilitate tracing, freezing, forfeiting, and returning of funds obtained through corrupt activities. Depending on the case, confiscated property may be returned to the state, to previous legitimate owners or even to victims themselves.

Chapter VI: Technical assistance and information exchange

In the Convention, technical assistance refers generally to support aimed at helping countries comply with the UNCAC’s provisions. Chapter VI includes provisions on training, material and human resources, research, and information sharing. The Convention encourages the provision of training on topics such as investigative methods, planning and developing strategic anti-corruption policies, preparing requests for mutual legal assistance, public financial management, and methods used to protect victims and witness in criminal cases. States parties should also consider helping each other conduct evaluations and studies on the forms, causes and costs of corruption in specific contexts, with a view to developing better policies for combating the problem.

Review of implementation

The decision on a mechanism for review of implementation of the UNCAC was taken at the Third Conference of States Parties in Doha, Qatar, in November 2009. The states parties decided to set up a multi-staged peer review mechanism involving the review of each state party by two peers. The review process is supposed to take no more than six months for any given country at any given stage of the process. The mechanisms started operation in July 2010 when the Implementation Review Group that oversees the review mechanism met for the first time. To cover all countries, the process is divided in two five-year cycles where countries are randomly selected to be reviewed in each year of the cycle. UNCAC Chapters III and IV were reviewed during the first cycle (2010-2014), while compliance with Chapters II and V are being assessed in the second (2015-2019). Thus, review on corruption prevention measures – a focus for many donor countries – is currently underway.[ii]4216e7f19921

The review process consists of a desk review based on the self-assessment report of the reviewed party. It includes country visits only if requested by the reviewed country. External scrutiny by other actors (for example civil society or academic experts) is not required, though each state party is free to choose such additional measures. Only the executive summaries of the country review reports will be published, unless a reviewed country chooses otherwise.

Using UNCAC for donor agency and embassy staff

The Convention obliges states parties to “enhance their cooperation at various levels with developing countries, with a view to strengthening the capacity of the latter to prevent and combat corruption”.[iii]2aef33b126e7 Although UNCAC lays down internationally agreed standards, it should not be confused with a blueprint for reform. Instead, leadership in each country must determine priorities and the appropriate sequencing of implementation measures. However, where issues addressed by the UNCAC are part of a reform process in the country, donors can discuss Convention requirements in political dialogue, and integrate them in technical assistance programmes with partners. A further opportunity is to coordinate support around aspects of UNCAC implementation.

UNCAC for political dialogue on corruption and anti-corruption reform

The UNCAC reinforces existing donor initiatives to combat corruption. The OECD Development Assistance Committee (DAC) Principles on Anti-Corruption, for example, echo UNCAC’s holistic approach, calling for attention to both the supply and demand sides of the problem. The UNCAC implicitly promotes the Paris Declaration on Aid Effectiveness by providing a commonly agreed framework for support, and by promoting accountability and transparency – two cross-cutting concepts of this declaration.[iv]9cf8c09bcc44 Finally, UNCAC compliance facilitates progress towards the Sustainable Development Goals, which donor countries support. Goal number 16 is to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”. Anti-corruption targets include the recovery and return of stolen assets (16.4), the reduction of corruption and bribery in all forms (16.5) and the development of effective, accountable, and transparent institutions at all levels (16.6).

Some issues for consideration:

High-level policy dialogue: Commitments to prevent and combat corruption should be anchored in high-level policy dialogue between partner governments, donors and civil society. Compliance with UNCAC can provide a more neutral basis for dialogue, where donor interventions might earlier have been perceived as moralising or as external interference in internal affairs. Government reform priorities should be used as a basis for constructive dialogue.

Indicators and benchmarks in aid agreements: Ratification of UNCAC obliges states parties to take concrete steps towards compliance. Donor agencies can assist partner countries to define indicators or benchmarks of progress and integrate them into high-level aid agreements in order to ensure regular monitoring. The different UNCAC requirements lend themselves for this purpose. However, in setting such benchmarks, government reform priorities need to be considered, and actual performance, not just the existence or introduction of anti-corruption legislation and measures, should be evaluated.

Inventory of existing programmes and their links with UNCAC: Development partners can explore the links between existing aid-funded programmes and UNCAC implementation as a way of assessing the relevance of current initiatives.

Aid architecture: As part of donor coordination mechanisms at country level, members should agree on a division of labour among aid-related dialogue fora in a partner country and ‘mainstream’ compliance with UNCAC into the macro-level as well as sector dialogue. The participation of civil society in these fora should be promoted. It is important that those working at the level of policy dialogue and those working at sector level interact and have a common understanding of how compliance with UNCAC can be pursued.

UNCAC as a framework for technical assistance

Although it is very broad and does not provide a blueprint for reform, UNCAC can provide an organising framework to deliver technical assistance to partner countries and may catalyse better coordination of analytic work and technical assistance among donors in a given country. When choosing to support UNCAC implementation, embassies and donor organisations can engage in a range of activities, whether short-term assessment initiatives to help prepare the ground for dialogue and assistance, or longer-term initiatives, which are necessary to meaningfully advance in reducing corruption.

Short-term assistance

Status of UNCAC implementation: Embassies and/or donor organisations can engage in discussions with the partner government as to the status of UNCAC implementation, where gaps exist and where support is needed.

Support to UNCAC self-assessments: Donors can assist their partners to complete the mandatory UNCAC self-assessment checklist on compliance with the Convention. This exercise, as described by an U4 publication (U4 Issue 2009:13), is best addressed in a broad manner (including and coordinating relevant stakeholders and aligning it to other national assessments and a political reform dialogue) in order to add value. Donors may also encourage states to include civil society in the exercise and provide assistance for this purpose. The Going Beyond the Minimum (GBM) methodology developed by UNODC and UNDP promotes a more inclusive, and broader, self-assessment process.[v]9b5896db6cac

Support to an UNCAC gap analysis: Alternatives or additions to the official checklist exercise could also be considered. Teams of public officials, together with national and international experts, could use a gap analysis approach to compare existing policies with UNCAC requirements in order to inform or refine country-led efforts and strategies to address corruption. These analyses have been used by countries to embark on a more inclusive process to identify reform needs.

Strengthen the UNCAC review mechanism: The minimal requirements of the review mechanism do not capture the full operation of anti-corruption policies in a country. Challenges include overly narrow participation by different stakeholders and an emphasis on laws instead of their implementation. However, donors can support a more robust process through the

• identification oftechnical assistance needs
• support to in-country visits by members of the reviewing team
• development of strong analysis, including by members of civil society
• publication of the full country reports (not just the summaries officially released)
  

To find out whether your country is among those being reviewed, please consult the UNODC UNCAC website.

Support to civil society: External scrutiny is key for assessing the enforcement and impact of government reforms. Donor and embassy staff can use their assistance to help civil society participate in the above mentioned assessment mechanisms and increase their capacity to play a role in those processes. This applies to advocacy groups as much as to those working on specific issues (such as governance analysis, social audits, etc.), all of which need to be aware of the UNCAC requirements their government has signed up to. In case governments are unwilling to allow civil society participation in the assessments, civil society groups could contribute to the political debate by producing alternative reports on their country’s compliance with UNCAC.

Longer-term institution/capacity building support

Specialised legal assistance: International and regional legal specialists can be useful to help partner governments bring domestic law and institutional arrangements into compliance with UNCAC requirements.

Advisors and mentors: Funding for long-term advisors and mentors provides hands-on technical support to government institutions involved in corruption prevention and control.

Pool of expertise: In order to adequately address the comprehensive demands of UNCAC implementation and technical assistance, the various institutions within a donor country should consider pooling and coordinating their relevant expertise (eg, legal departments, supreme audit institutions, financial crime units, and the like).

Civil society: Funding and the facilitation of technical support for civil society and the media is crucial not only to assist them to participate proactively in the design and implementation of anti-corruption reforms, but also to systematically monitor UNCAC implementation and the distribution of any recovered assets.

Information systems for UNCAC review: Donors can support partner countries in making their participation in the review mechanism an effective monitoring exercise. Special emphasis needs to be given to the development of appropriate, effective and publicly accessible information systems that allow for external monitoring (e.g. by parliament, civil society, academia).

Analysis on corruption and related reforms in partner countries: Although not always greeted with enthusiasm, continuous analysis of how the dynamics and forms of corruption evolve in a given country and how effectively reforms address the problem provides the foundation for sound policy making and reform evaluation.

Knowledge and learning: Donors can support the establishment of fora for communication of lessons learned from experience, in and between countries. Given the existence of regional conventions and networks that preceded the UNCAC, there is already an existing mutual assistance practice that can potentially to some degree be transferred to the implementation of UNCAC. Donors should explore avenues for strengthening this practice of south-south cooperation – partnerships between developing countries. Donors should also invest in evaluating lessons learned of reform efforts wherever suitable.

Issues to be explored further

Mainstreaming: Mainstreaming anti-corruption into governance and sector programmes is high on the agenda of many donor agencies. The extent to which UNCAC can be instrumental for this purpose needs to be explored. At the country level, this also applies to the UNCAC’s potential to serve partner governments as a tool to mainstream anti-corruption measures into national development plans and sectoral policies.

UNCAC as a framework for coordination: States parties to the UNCAC, as well as the OECD DAC have repeatedly promoted the need for donor coordination on the basis of UNCAC. In resolution 2/4 to the UNCAC, partner countries are encouraged to engage focal points for technical assistance.[vi]37071576688e Donor countries, moreover, are asked to engage into multi-year, coordinated technical assistance frameworks to help implement UNCAC. Attention is needed to ensure that coordination around UNCAC is done effectively in the context of other coordination mechanisms at country level. As donor coordination normally takes place based on national development plans or poverty reduction strategies, anti-corruption obligations under UNCAC may be best addressed within these strategic documents rather than in a separate forum or plan.

UNCAC to address international drivers of corruption

Due to its broad coverage (including international anti-corruption measures such as mutual legal assistance) and international scope, the UNCAC is well suited to address the increasingly global nature of corruption and the cross-border money transfers that hide its proceeds. For this potential to be fully achieved, donor countries also need to act on the home front. Leading by example will facilitate a more credible dialogue with partner governments. What country level donor and embassy staff can do:

Ensure agency practices are in line with UNCAC: Donor and embassy staff should ensure that their agency practices are consistent with Convention standards (eg, address the management of facilitation payments, conflicts of interest, transparency about funding, etc.).

Address international drivers of corruption: Donor countries should address international drivers of corruption by prosecuting cross-border bribery cases, limiting bank secrecy, and providing technical expertise especially on the international aspects of mutual legal assistance, such as asset recovery claims. Donor agency and embassy staff can identify existing hurdles between their home country and their partner country in mutual legal assistance and asset recovery cases, and embassy staff can use their institutional channels to ease the often cumbersome communication process between countries. Embassies can explore whether home country institutions can support investigations (the UK’s work with the Nigerian Economic and Financial Crimes Commission is a point in case). Diplomatic measures against suspected persons (such as visa bans) can be refined and applied. Donor agencies can also advise on the management of repatriated assets.

Synthesis: the strengths and weakness of UNCAC

What UNCAC can do

UNCAC provides not only an international legal basis for cooperation, but also a political tool for dialogue between countries and between governments and their citizens.

UNCAC provides universally agreed concepts of corruption and ways to address it within one framework, thus offering an opportunity to overcome hitherto fragmented and often piecemeal efforts.

UNCAC can foster international exchange of expertise, good practices and lessons learned, and it can be instrumental in coordinating international assistance.

What UNCAC cannot do

UNCAC is not a blueprint for anti-corruption reform; it is a compilation of important measures which lack prioritisation or sequencing. Reform must be designed to address country-specific forms, manifestations and dynamics of corruption and to fit into the country’s institutional arrangements and procedures.

The emphasis on technical assistance in UNCAC may lead to the assumption that corruption problems can be solved by simply plugging a standard set of legal, procedural or capacity gaps. It is critical that donors avoid perpetuating this assumption by promoting one-size-fits-all approaches to compliance.

Ratification of UNCAC does not constitute political will in itself. Even the potential of the Convention to create peer pressure is limited where commitment to address corruption is absent. UNCAC may be used as a fig leaf: some states may ratify just to deflect criticism from donors or political opponents. Alternatively, governments may create an overambitious implementation agenda that quickly deflates after early failures.

UNCAC is not an end in itself. UNCAC assessments and implementation efforts may be perceived as a stand-alone exercise. For local reformers and their donor/embassy partners, though, it is best employed as a political and technical tool to support better governance in the pursuit of development.

Further reading

Useful links

U4 Anti-Corruption Resource Centre’s UNCAC theme page.

Transparency International’s UNCAC web page.

United Nations Office on Drugs and Crime UNCAC web page.

UNCAC Civil Society Coalition web page.

The Asset Recovery Knowledge Centre web page.

The UNODC/World Bank Stolen Asset Recovery (StAR) Initiative web page.

Resources

U4 Background paper (2007:1). How can Technical Assistance support the Implementation of UNCAC?

U4 Brief (2008:1. Anti-corruption Policy Making in Practice: Implications for Implementing UNCAC

U4 Brief (2009:25). Exploring the links between UNCAC and the Paris Declaration.

U4 Brief (2014:3). Mainstreaming anti-corruption into sectors: Practices in U4 partner agencies.

U4 Issue (2009:3). How prepared are we to assess real implementation of anti corruption conventions? Lessons from the Americas

U4 Issue (2009:13). Maximising the potential of UNCAC implementation: Making use of the self-assessment checklist

U4 Issue (2013:4). The role of civil society in the UNCAC review process: Moving beyond compliance.

UNODC (2013), Partnering in Anti-Corruption Knowledge: Using the United Nations Convention against Corruption (UNCAC) for Technical Assistance and Anti-Corruption Programming.

Annex

Checklist of actions required of states parties to UNCAC.

M=Mandatory
SE = Shall Endeavour

Provisions that states ‘shall consider’ are optional and not included in this summary.

Preventative measures

Ensure the existence of a body or bodies to prevent corruption (through knowledge dissemination, and overseeing/coordinating preventative policies) (Article 6, M)

Establish a merit system for its civil service (Article 7, SE)

Promulgate a code of conduct for all public officials and endeavour to require officials to disclose outside activities, employment, investments, assets, gifts that may reflect a conflict of interest, etc.(Article 8, SE)

Require public officials to make assets declarations (Article 8, SE)

Create a public procurement system based on transparency, competition, and objective selection criteria with legal recourse for violations (Article 9, M)

Enhance transparency in public administration by such measures as publishing information and simplifying procedures for attaining access to such information (Article 10, M)

Prevent corruption among members of the judiciary through measures such as rules of conduct (Article 11, M)

Take measures to enhance accounting and auditing standards in the private sector (Article 11, M)

Promote participation of civil society in fight against corruption through, for example, ensuring effective access to information (Article 13, M)

Institute a comprehensive regulatory scheme to prevent money laundering and consider creating financial intelligence unit to receive, analyze, and disseminate reports of suspicious transactions (Article 14, M)

Criminalisation and law enforcement

Outlaw the offering or soliciting of a bribe by a national public official (Article 15, M)

Outlaw the promise, offering or giving of a bribe to a foreign public official (Article 16, M)

Outlaw embezzlement (Article 17, M)

Outlaw money laundering (when proceeds of a crime are transferred intentionally for the purpose of concealing or disguising their illicit origin) (Article 23, M)

Ensure the obstruction of corruption investigations, and attempts to commit corrupt acts are criminal offenses (Articles 25 and 27, M)

Provide a long statute of limitations for bribery and other corrupt acts and provide for its suspension when an offender has evaded prosecution (Article 29, M)

Make sure the penalties for corrupt acts reflect the gravity of the offense, that immunities for public officials are not overbroad, and that if there is discretion to prosecute it is exercised with due regard for the need to deter corruption (Article 30, M)

Take measures to ensure protection for whistleblowers (Article 32, M)

Establish procedures to freeze, seize, and confiscate the proceeds of corrupt acts andpermit those injured by corrupt acts to initiate an action for damages (Articles 31 and 35, M)

Remove any obstacles posed by bank secrecy laws to investigating corruption (Article 40, M)

International cooperation

Cooperate with other governments on anticorruption investigations, prosecutions and judicial proceedings in relation to Convention offences (Article 46, M)

Enhance the effectiveness of communication between law enforcement bodies to facilitate secure and rapid exchange of information. (Article 48, M)

Asset recovery

Require financial institutions to conduct enhanced scrutiny of accounts maintained by or on behalf of prominent public officials (Article 52, M)

Ensure that the proceeds of corrupt acts committed in other states can be confiscated and returned (Articles 55 and 57, M)

Technical assistance

Implement training programmes for personnel responsible for preventing and combating corruption (Article 60, S)

Make concrete efforts to enhance financial, material and technical assistance to support developing countries’ efforts to implement the Convention. (Article 62, M)