By Nihal Sri Ameresekere  F.C.A. F.C.M.A., C.M.A., Courtesy Island

Commencing from 1970 with the Kyoto Declaration, the process of formulating the UN Convention Against Corruption (UNCAC) saw the light of day in December 2000; the UN General Assembly resolved to establish a Committee for negotiating and formulating the path-breaking convention. The UNCAC was formulated and adopted by the UN General Assembly in October 2003, and Dec. 09 was designated as the ‘International Anti-Corruption day’. The UNCAC came into force in December 2005,upon 30 states having ratified it. Sri Lanka was the second state to do so in March 2004, under Prime Minister, Ranil Wickremesinghe. As at now 177 states have become parties to the UNCAC, the Secretariat and custodian of which is the UNODC.

On the heels of the UNCAC coming into force in December 2005, mooted by UNODC the International Association of Anti-Corruption Authorities (IAACA) was inaugurated in October 2006, with the objectives of promoting and facilitating the implementation of the UNCAC. IAACA held its 8th Annual Conference in November 2015 at St. Petersburg, Russia, preceding the 6th Session of the Conference of State Parties (COSP6) to UNCAC held also at St. Petersburg. Russia’s recognition of the need to combat corruption was a global achievement and reflects the pace at which this international movement against corruption has been growing. Sri Lanka after a lapse of several years, participated with a delegation led by Deputy Minister of Foreign Affairs, Dr. Harsha de Silva.

UNODC Executive Director Yury Fedotov at the G-20 States Meeting in Paris in April 2011 emphatically stated thus:

“Corruption has the power to shake the very foundations of society. Even in regions where peace and prosperity prevail, corruption takes a heavy toll …. Now it’s time for business to move beyond declarations to concrete actions …. Anti-Corruption Action Plan provides a common approach and an opportunity for the G-20 to lead by example in the global fight against corruption ….. In October this year, the Conference of States Parties to the Convention against Corruption will meet in Marrakech, Morocco to take stock of global progress in preventing corruption …. The UN Convention against Corruption is the first legally binding global anti-corruption instrument. It obliges States to prevent and criminalize corruption, promote international cooperation, recover stolen assets and improve technical assistance and information exchange.”

Conference of State Parties in November 2015 and ‘Sustainable Development Agenda 2030’

The United Nations at a conference in Paris in September 2015 formulated a ‘Sustainable Development Agenda’ with goals to be achieved during the 15 years by 2030. Goal No. 16 therein is to ‘promote just, peaceful and inclusive societies’. Some of the specific targets thereunder is to ‘promote the rule of law at the national and international levels and to ensure equal access to justice for all’; further significantly to ‘substantially reduce corruption and bribery in all their forms’; and also to ‘ensure public access to information and to protect fundamental freedoms’. It is against this background that the COSP6 re -the UNCAC was held in St. Petersburg, Russia in November 2015, on the conclusion of which, a statement was released by UNODC Executive Director, Yury Fedotov.

Articles of the UNCAC and Multi-Stakeholder Approach

The UNCAC applies with equal force to the public and private sectors, where public resources are managed, either by the public sector or by the private sector.

Having dealt in depth with the contents of the Articles of the UNCAC previously, the IAACA Annual Conference in November 2015 was held under the theme ‘Prevention and Education’ vis-à-vis combating corruption; and IAACA issued a Declaration, inter-alia, calling upon state parties to further embrace a comprehensive multi-stakeholder approach to combating corruption, and to strengthen the dialogue between governments, civil society, academia and the private sector, in order to muster support for the implementation of the UNCAC, as reflected by the UNODC Chief’s statement at the conclusion of COSP6.

At high-level discussions and sessions, the private sector’s duty and obligation to conform to the UNCAC was emphasised, with suggestions of public-private partnerships to combat the cancerous menace of corruption. Politicians from the public sector and professionals from the private sector carry a greater burden, duty and responsibility towards ensuring the conformity with the Articles of the UNCAC.

As a consequence of the development of enforcing the implementation of the UNCAC, state parties completed the first cycle of an Implementation Review of Mechanism, where randomly selected states were reviewed by other states. Though this brings about an educative process and exchange of information between states focused on implementation of the UNCAC, it is a tragi-comedy, where a less corrupt state is reviewed by a more corrupt counterpart! The second cycle of the Implementation Review Mechanism is to commence. However, the results of such Implementation Review of Mechanism have not yet been made public though civil society is the appropriate sector to ensure compliance of their respective states as demonstrated by public outcry against mega corruption by citizens in several states.

Many a government comes to power avowing to combat fraud and corruption, but once installed in power, they get bogged down in the very quagmire of fraud and corruption, with allegations and scandals levelled against them. It was encouraging to observe at high-level discussions, delegates calling for the creation of an International Court for civil society to hold accountable political leaders who have embezzled the resources of the people are blatantly stifling anti-corruption agencies since endeavours thereafter to hold them accountable and responsible and prosecute are seen to be thwarted by socio-political influences, partiality and political compulsions.

It is the civil society that should be called upon to play a pivotal role in combating fraud and corruption and ensure the effective enforcement of the rule of law. Insatiable greed of a powerful few to plunder public resources results in the denial to the vast multitude of the impoverished poor livelihood, food, healthcare, education, housing, etc. This amounts to a violation of human rights and needs to be so addressed.

Pope Francis quoting the Bible once having pronounced: “The necks of the corrupt persons should be tied to a rock and they be thrown into the sea … persons engaged in corruption appear beautiful from outside, but are full of dead bones and putrefactions inside.” His Holiness during the recent visit to Africa severely castigated corruption as further impoverishing the poor.

In a World Bank Staff Working Paper No. 580, David J. Gould and Jose A. Amaro-Reyes reported:

“Corruption is pervasive in the countries of Asia, Africa and Latin America. The government monopoly of economic activities in developing countries, when combined with conditions of political ‘softness’, widespread poverty and socio-economic inequalities, ambivalence towards the legitimacy of government and its organisations and systematic maladministration, provide fertile grounds for corruption, which … has a deleterious, often devastating effect on administrative performance and economic and political development, for example corroding public confidence, perverting institutions’ processes and even goals, favouring the privileged and powerful few, and stimulating illegal capital export or use of non-rational criteria in public decisions.”

Nevertheless, SAARC countries, enmeshed in mega corruption, at their Heads of State Summits have never dealt with the issue of corruption whilst ironically lamenting the poverty of the impoverished poor in the region.

The above perception that fraud and corruption were pervasive in less develop states was proven wrong by Enron and WorldCom frauds and the fall of the reputed Auditors, Arthur Anderson, resulting in the enactment of Sarbanes-Oxley Act in the US. Thereafter financial scams in 2008 in the US and Europe by supposedly respected Banks and financial institutions caused such economic impact that governments had to step in to bail them out with ‘stimulus’ packages whilst leading financial institutions, such as Lehman Brothers went into bankruptcy. In December 2014 it was reported that UBS, Citigroup, JPMorgan Chase, Royal Bank of Scotland and HSBC had agreed to pay a total of USD 3.3 billion in fines.

It was the civil society agitations on a platform of major corruption allegations which led to the installation in office of the present government, committed to combat corruption and ensure good governance. This led to Article 46 of the 19th Amendment to the Constitution, introducing Article 156A (1) (c), which stipulates that “Parliament shall by law provide for measures to implement the United Nations Convention Against Corruption and any other International Convention relating to the prevention of corruption, to which Sri Lanka is a party.”

Sri Lanka has a multiplicity of non-correlated statutes, with responsibility of enforcement by several agencies, whereby notwithstanding all the good intentions, the menace of corruption has become worse. What Sri Lanka needs today, given the political commitment, is the enactment of an all-encompassing statute to fulfill all the obligations stipulated in the Articles of the UNCAC, and a multi-disciplinary agency for investigation and prosecution with private expertise and foreign technical assistance where necessary. This needs to be done according to a well-planned strategy with private expertise with the education of the investigators, prosecutors, judiciary etc and also with the education of the public of the consequences of corruption and the offences under such statute; preventive measures should also be put in place. All being equal before the law and ruled by the law, such investigations and prosecutions should be non-selective, regardless of the status and standing of personalities sans any socio-political considerations. In certain state investigations prosecutions should be closely monitored through interaction of teams or by supervisory oversight and/or with review by civil society representatives.

By Nihal Sri Ameresekere  F.C.A. F.C.M.A., C.M.A., Director, International Consortium on Governmental Financial Management -C.G.M.A., C.F.E. Sri Lanka Co-ordinator, International Association of Anti-Corruption Authorities Associate Member, American Bar Association