COMPARATIVE ANALYSIS OF THE UNITED NATIONS (UN) CONVENTION AGAINST CORRUPTION, THE AFRICAN UNION (AU) CONVENTION ON PREVENTING AND COMBATING CORRUPTION, THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY (SADC) PROTOCOL AGAINST CORRUPTION AND THE SOUTH AFRICAN LEGISLATIVE FRAMEWORK

 

Introduction

On 9 December 2003 the Minister for the Public Service and Administration signed the UN Convention against Corruption on behalf of the Government of South Africa in Merida, Mexico. In July 2003 South Africa adopted the AU Convention on Preventing and Combating Corruption at the AU Summit of Heads of States in Mozambique. On 15 May 2003 South Africa ratified the SADC Protocol against Corruption. South Africa has commenced with preparations for accession to the OECD Convention Combating Bribery of Foreign Public Officials in International Business Transactions.

This paper seeks to draw a comparative analysis of the provisions of these multilateral agreements with the domestic framework of South Africa. The paper not only highlights areas where we are compliant, but also those areas where we go beyond the requirements of the UN Convention, which is used as the basis for this analysis. It also identifies areas for improvement in our anti-corruption regulatory framework.

UN CONVENTION AGAINST CORRUPTION

AU CONVENTION ON PREVENTING AND COMBATING CORRUPTION

SADC PROTOCOL AGAINST CORRUPTION

SOUTH AFRICAN POSITION

Article 1: Statement of purpose

The purpose of the Convention is to promote and strengthen measures to prevent and com-bat corruption. This includes international co-operation in respect of asset recovery, and the promotion of integrity, accountability and the proper management of public affairs and public property.

Article 2: Objectives

Article 3: Principles

The purpose is to promote and strengthen the development in Africa of mechanisms to pre-vent, detect, punish and eradicate corruption and related offences in the public and private sectors. This includes improved co-operation, the promotion of civil and political rights, and fostering transparency and accountability in the management of public affairs.

Article 2:Purposes

 

The purposes of the Protocol are:

(a) to promote and strengthen the development, of mechanisms needed to prevent, detect, punish and eradicate corruption in the public and private sector;

(b) to promote, facilitate and regulate co-operation among the State Parties;

(c) to foster the development and harmonisation of policies and domestic legislation of the State Parties.

 

 

 

The South African regulatory framework is in line with these provisions. The preamble to the Prevention and Combating of Corrupt Activities Act, 2004, (Act 12 of 2004), is in a similar vein, and makes reference to the SADC Protocol against Corruption and the UN Convention against Corruption.

Article 2: Definitions

See rolling text for details of the following definitions:

"Public official"; "Foreign public official"; "Official of a public international organisation"; "Property"; "Proceeds of crime"; "Freezing" or "seizure"; "Confiscation"; "Predicate offence"; "Control-led delivery".

 

Article 1: Definitions

Key definitions to the text include "Illicit Enrichment", "Private Sector", "Proceeds of Corruption", and "Public Official".

Unlike the UN Convention, this has a much shorter list, possibly because the AU Convention itself is not as comprehensive as the UN Convention is.

Article 1: Definitions

Key definitions in the text include "confiscation", "corruption", and "public official".

This list is even shorter than those in the AU & UN texts. It is also different because it attempts a definition of "corruption".

Section 1: Definitions

The following definitions in section 1 are important indicators of the scope of the Prevention and Combating of Corrupt Activities Act, 2004:

‘‘foreign public official’’ means—

(a) any person holding a legislative, administrative or judicial office of a foreign state;

(b) any person performing public functions for a foreign state, including any person employed by a board, commission, corporation or other body or authority that performs a function on behalf of the foreign state; or

(c) an official or agent of a public international organisation;

‘‘official’’ means any director, functionary, officer or agent serving in any capacity whatsoever in a public body, private organisation, corporate body, political party, institution or other employment, whether under a contract of service or otherwise, and whether in an executive capacity or not;

‘‘property’’ means money or any other movable, immovable, corporeal or in-corporeal thing, whether situated in the Republic or elsewhere and includes any rights, privileges, claims, securities and any interest therein and all proceeds thereof;

‘‘ public officer’’ means any person who is a member, an officer, an employee

or a servant of a public body, and includes—

(a) any person in the public service contemplated in section 8(1) of the Public Service Act, 1994 (Procla-mation No. 103 of 1994);

(b) any person receiving any remuneration from public funds; or

(c) where the public body is a corporation, the person who is incorporated as such, but does not include any—

(a) member of the legislative authority;

(b) judicial officer; or

(c) member of the prosecuting authority.

Article 3: Scope of application

 

This Article extends the Convention the to the prevention, investigation and prosecution of corruption and to the freezing, seizure, confiscation and return of proceeds derived from offences established in accordance with the Convention; with a caveat that it shall not be necessary for the offences to result in damage or harm to state property.

Article 4: Scope of Application

Unlike the provisions of the UN Convention, this article describes acts of corruption that fall under the scope of the AU Convention. These include bribery, diversion, abuse of power, illicit enrichment and concealment. It is a virtual mirror image of Article 3 of the SADC Protocol, except that illicit enrichment is dealt with as a separate article and has been added as an act of corruption.

Article 3: Acts of Corruption

 

Unlike the provisions of the UN Convention, this article describes acts of corruption that fall under the scope of the Protocol. It is repeated almost verbatim in the AU Convention.

This list does not include "illicit enrichment".

Sections 3 to 21: Offences of corruption

Sections 3 to 21 of the Act create different offence of corruption and offences relating to corrupt activities. These offences are in line with the acts of corruption set out in the SADC Protocol against corruption and in some instances even go beyond the requirements of the Protocol. These offences deal, among others, with the general offence of corruption, corrupt activities relating to specific persons, specific matters, and other related offences.

Article 4: Protection of sovereignty

This Article provides for implementation of the Convention in a manner consistent with the principles of sovereign equality and territorial integrity.

 

 

 

Not dealt with

 

 

Not dealt with.

 

 

Sovereignty and territorial integrity of States Parties will be respected in the implementation of the Convention.

Article 5: Preventive anti-corruption policies and practices

This article provides for the development and implementation of preventive anti-corruption policies and practices.

Article 5: Legislative and other measuresDealt with broadly in the text, in particular Article 5(8) entitled Legislative and other measures. In terms of this provision States Parties under-take to adopt and strengthen mechanisms for promoting public education in the fight against corruption.

 

Article 4(1): Preventative measures

 

Dealt with broadly in terms of Article 4.

 

 

 

 

Public Service Anti-Corruption Strategy, Public Service Code of Conduct, Public Finance Management Act, 1999, the Promotion of Access to Information Act, 2000, and the Financial Disclosure Framework provide for preventative measures that go beyond the requirements of the Convention.

Article 6: Preventive anti-corruption body or bodies

This article provides for the establishment of a preventive anti-corruption body or bodies with the necessary independence.

Article 5: Anti-Corruption Authorities or agencies

In terms of Article 5 (3) States Parties undertake to establish, maintain and strengthen national anti-corruption authorities or agencies.

Article 4(1)(g): Preventative Measures

Article 4(1)(g) of the Protocol provides that for the purposes set forth in Article 2 of this Protocol, each State Party undertakes to adopt measures, which will create, maintain and strengthen institutions responsible for implementing mechanisms for preventing, detecting, punishing and eradicating corruption.

 

 

 

SA is has a number of such bodies, which perform anti-corruption work for example the Directorate of Special Operation established under section 7 of the National Prosecuting Authority Act, 1998(Act No. 32 of 1998). However, this Directorate may only investigate corrupt activities committed in an organised fashion. Therefore, there may be a weakness in our system, because none of these bodies have a specified or exclusive preventive function, nor is prevention regulated in terms of our law. Sometimes the function is fulfilled by default. It is proposed that the preventive function of relevant anti-corruption bodies be made more explicit. Project proposals aimed at enhancing prevention have been developed.

Article 7: Public sector

 

 

This article provides for the adoption and strengthening of recruitment, promotion and retention systems of the public service.

Article 7:

Fight Against Corruption and Related Offences in the Public Service

The requirements include that public officials should declare their assets; sensitise and train public officials on matters of ethics; develop disciplinary measures and investigation procedures in corruption and related offences with a view to keeping up with technology and increase the efficiency of those responsible.

Article 4(1): Preventative measures in the Public sector

The sub- paragraphs of Article 4(1) deal with similar issues; e.g.:

  • standards of conduct;
  • systems of government hiring and procurement of goods and services;
  • government revenue collection and control systems.

 

 

 

 

The Public Service Regulations and the Public Service Act, 1994, provide for such systems. Regular assessments would ensure the effectiveness thereof.

Article 8: Codes of conduct for public officials

This Article provides for the development and application of codes of conduct for public officials by State Parties. In terms of the Convention "Public official" means:

(i) any person holding a legislative, executive, administrative or judicial office of a State Party;

(ii) any other person who performs a public function, including for a public agency or public enterprise, or provides a public service.

Article 7: Establishment of code of conduct

In terms of Article 7(2), States Parties commit themselves to create an internal committee or a similar body mandated to establish a code of conduct and to monitor its implementation, and sensitise and train public officials on matters of ethics.

Article 4: Preventative Measures

Article 4(1)(a) provides that for the purposes set forth in Article 2 of this Protocol, each State Party undertakes to adopt measures, which will create, maintain and strengthen standards of conduct for the correct, honorable and proper fulfillment of public functions as well as mechanisms to enforce those standards.

 

 

 

In June 1997 the Code of Conduct for the Public Service became part of the regulations for every public servant and was the subject of an ethics promotional campaign by the Public Service Commission. In September 1997 the South African NGO Coalition (SANGOCO) took the initiative to develop a Code of Ethics, which provided a valiant challenge to other sectors to identify their core values around issues of governance, accountability and management.

Explanatory Manual on the Code of Conduct

In summary this guide was produced by the Public Service Commission and serves as guide to employees to under-stand and resolve ethical dilemmas in their daily work. It has five focus areas:

  1. serving government;
  2. serving the public;
  3. professionalism and integrity;
  4. conflict of interest; and
  5. working in the service.

In 1998 the Executive Members Ethics Act, 1998(Act No. 82 of 1998), was passed to "provide for a code of ethics governing the conduct of members of the cabinet, Deputy Ministers and Members of provincial Executive Councils. The South African parliamentary code of conduct makes provision for the establishment of a Joint Committee on Ethics and Members’ Interests.

Article 9: Public procurement and management of public finances

This Article deals with the establishment of rules for procurement and measures to ensure transparent procedures for the management of public finances.

Article 7(4): Tendering and hiring procedures in public service

This Article requires States Parties to ensure transparency, equity and efficiency in the management of tendering and hiring procedures in the public service.

Article 4(b): Preventative Measures

 

Article 4(b) provides that for the purposes set forth in Article 2 of this Protocol, each State Party undertakes to adopt measures, which will create, maintain and strengthen systems of government hiring and procurement of goods and services that ensure the transparency, equity and efficiency of such systems.

Public Finance Management Act, 1 of 1999(PFMA)

 

ThePFMA took effect on 1 April 2000 and lays the basis for an effective corporate governance framework for the public sector, including sound principles regarding procurement, risk management, internal controls, internal audit and audit committees as well as improved accountability.

The Regulations in terms of the Public Finance Management Act, 1999: Framework for Supply Chain Management that was promulgated on 5 December 2003 and which is applicable to national and provincial departments and trading entities, constitutional institutions and schedule 3A and 3C public entities, stipulates that an accounting officer or accounting authority must ensure that bids are advertised in at least the Government Tender Bulletin for at least 30 days before closure and that awards are published in the Government Tender Bulletin and other media by means of which the bids were advertised.

To this end, the Supply Chain Management A Guide for Accounting Officers / Authorities issued on 26 February 2004 is also useful for reference.

The requirement for measures regarding the maintenance of books, records, financial statement disclosures and accounting and auditing standards will be addressed by:

  • setting of generally recognised accounting practice (GRAP) by the recently established Accounting Standards Board; and
  • the process to review the draft Accountancy Professions Bill, 2002.

Article 10: Public reporting

 

This Article deals with the establishment of measures to ensure transparency in public administrations especially with regard to their organisation, functioning and decision making processes. It also provides for the publishing of periodic reports, including reports on the risks of corruption in public administrations.

Article 9: Access to information

This Article provides that each State party shall adopt such legislative and other measures to give effect to the right of access to any information that is required to assist in the fight against corruption and related offences.

Article 4(1)(d): Preventative Measures

Article 4(1)(d) provides that for the purposes set forth in Article 2 of this Protocol, each State Party undertakes to adopt measures, which will create, maintain and strengthen mechanisms to promote access to information to facilitate eradication and elimination of opportunities for corruption.

 

 

 

The Promotion of Access to Information Act, 2002 in general, promotes transparency, accountability and effective governance of all public bodies by empowering and educating persons.

The Public Finance Management Act, 1999, and the Public Service Regulations provide for annual reports by departments and public entities to be published.

The requirements of this Article will also be fulfilled through the establishment of the proposed corruption management information sys-tem, which will contain information provided by all Departments in terms of the requirements for minimum anti-corruption capacity.

Article 11: Measures relating to the judiciary and prosecution services

This Article provides for measures, in accordance with the fundamental principles of the domestic legal system of a State Party, and without prejudice to judicial independence, to strengthen integrity and to prevent opportunities for corruption among members of the judiciary and prosecution services.

 

 

 

 

Not dealt with.

 

 

 

Not dealt with specifically.

 

 

 

Chapter 8 of the Constitution deals with courts and administration of Justice (Including the prosecuting authority). In terms of section 177 of the Constitution a judge may be removed from office if:

  • The Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct: and
  • The President, on advice of the Judicial Service Commission may suspend a judge who is the subject of a procedure as mentioned above.

The Prevention and Combating of Corrupt Activities Act, 2004, specifically criminalises corruption by and against judicial officers and members of the prosecuting authority (see sections 8 & 9, respectively).

Furthermore, the Judicial Officers Amendment Bill provides for the establishment of a judicial council. The functions of the council includes:-

  • Advise judges on ethical and related matters; and
  • Recommendations to the Judicial Service Commission concerning the effective administration of justice and conduct of judges.

The Magistrates Act, 90 of 1993, establishes a Magistrates’ Commission, which is a representative body. Amongst the objectives of the Commission is the implementation of section 174(7) of the Constitution (ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against, these judicial officers take place without favour or prejudice).

The NPA is accountable to Parliament through a reporting system. Internally, prosecutors are accountable through the institution’s hierarchy and subject to continual performance monitoring by a Court Management Unit. An Integrity Management Unit has also been established within the NPA.

Article 12: Private sector

This Article deals with the establishment of measures to prevent corruption involving the private sector.

Article 11: Private sector

In terms of this Article State Parties undertake to:

  1. Adopt legislative and other measures to prevent and combat acts of corruption and related offences committed in and by agents of the private sector.
  2. Establish mechanisms to encourage participation by the private sector in the fight against unfair competition, respect of the tender procedures and property rights.
  3. Adopt such other measures as may be necessary to prevent companies from paying bribes to win tenders.

Article 4(2): Private sector

Article 4(2) states that each State Party shall adopt such legislative and other measures under its domestic law to prevent and combat acts of corruption committed in and by private sector entities.

 

 

 

The Prevention and Combating of Corrupt Activities Act, 2004, particularly provides for corruption in the private sector. In this regard section 2(5) provides that a reference in the Act to "any person" includes a person in the private sector. Furthermore, section 1 of the Act contains a comprehensive definition of "private sector".

Article 13: Participation of society

This Article deals with measures to promote the active participation of individuals and groups outside the public sector such as civil society organisations in the prevention and fight against corruption, and to raise public awareness regarding the existence, causes and the threat posed by corruption.

Article 12: Civil society and media

In terms of this Article State Parties undertake to:

  1. Be fully engaged in the fight against corruption and related offences and the popularisation of this Convention with the full participation of the Media and civil society at large;
  2. Create an enabling environment that will enable civil society and the media to hold governments to the highest levels of transparency and accountability in the management of public affairs;
  3. Ensure and provide for the participation of civil society in the monitoring process and consult civil society in the implementation of this Convention;
  4. Ensure that the media is given access to information in cases of corruption and related offences on condition that the dissemination of such information does not adversely affect the investigation process and the right to a fair trial.

 

Article 4(1)(i): Preventative Measures

Article 4(1)(i) provides that for the purposes set forth in Article 2 of this Protocol, each State Party undertakes to adopt measures, which will create, maintain and strengthen mechanisms to encourage participation by the media, civil society and non-governmental organizations in efforts to prevent corruption.

 

 

The Public Service Anti-Corruption Strategy provides for participation of civil society in the fight against corruption, and they are also part of the NACF.

The Promotion of Access to Information Act, 2000, and the Witness Protection Act, 1998, also encourage participation of society. The proposed national hotline will serve as a tool for the public to report corruption.

Article 14: Measures to prevent money-laundering

This Article deals with the establishment of a comprehensive domestic regulatory and supervisory regime for banks and other institutions, particularly those susceptible to money laundering in order to deter and detect all forms of money laundering. It further requires State Parties to consider the establishment of a financial intelligence unit to serve as a national centre for the collection, analysis and dissemination of information.

 

 

The Convention does not address preventive measures.

Article 6 establishes criminal offences, which are described later in this analysis, in the Chapter that deals with criminalisation (article 23 of UN Convention).

 

 

Not dealt with specifically.

Article 8(2) entitled "Confiscation and Seizure" states "In order to carry out measures referred to in this Article, each State Party shall empower its courts or other competent authorities to order that bank, financial or commercial records be made available or be seized and shall not invoke bank secrecy as a basis for refusal to provide assistance."

 

 

 

The Financial Intelligence Centre Act, 2001 established a financial intelligence centre and a money laundering advisory council in order to combat money-laundering activities. The Act imposes certain duties on institutions and other persons who might be used for money-laundering purposes.

The Financial Intelligence Centre Act, 2001 together with the Prevention of Organised Crime Act, 1998, and the International Co-operation in Criminal Matters Act, 1996, produced an anti-money laundering regime which complies in all material respects with the 40 recommendations of the Financial Action Task Force on money-laundering (FATF). The FATF is the international co-ordinating body for anti-money-laundering practices.

Article 15: Bribery of national public officials

This articles criminalises bribery of national officials

Article 4(a) and (b)

 

Paragraphs (a) and (b) of Article 4, entitled Scope of Application" describes this offence as an act of corruption to be criminalised by States Parties.

Article 3(1)(a) and (b)

 

Paragraphs (a) and (b) of Article 3, entitled "Acts of corruption" describes this offence as an act of corruption to be criminalised by States Parties.

 

 

The Prevention and Combating of Corrupt Activities Act, 2004, addresses this in section 4. Section 3, the general offence of corruption is also be applicable to the corruption of public officials.

Article 16: Bribery of foreign public officials or officials of public international organisations

The current text criminalises bribery by such officials, with the qualification that the intention is to "obtain or retain business or other undue advantage in relation to the conduct of international business.

 

 

 

 

Not dealt with.

Article 6: Acts of Corruption Relating to an Official of a Foreign State

 

Subject to its domestic law, each State Party shall prohibit and punish the offering or granting, directly or indirectly, by its own nationals, persons having their habitual residence in its territory, and businesses domiciled there, to an official of a foreign State, of any article of monetary value, or other benefit, such as a gift, favour, promise or advantage, in connection with any economic or commercial transaction in exchange for any act or omission in the performance of that official’s public functions.

 

 

 

 

 

The Prevention and Combating of Corrupt Activities Act, 2004, addresses this aspect in section 5.

South Africa is also making preparations for its accession to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

Article 17: Embezzlement, misappropriation or other diversion of property by a public official

This Article criminalises embezzlement, misappropriation or diversion of property or any other thing of value entrusted to the public official by virtue of his position.

Article 4(d)

 

 

 

Paragraph (d) of Article 4 deals with this.

Article 3(1)(d)

 

 

 

Paragraph (d) of Article 3 deals with this.

 

 

 

 

The Prevention and Combating of Corrupt Activities Act, 2004, makes provision for such an offence. See section 4(1) and (2) of the Act. Furthermore, embezzlement is an offence in terms of our common law.

Article 18: Trading in influence

The Article criminalises trading in influence

Article 4(f)

 

Article 4(f) covers this offence.

Article 3(1)(f)

 

Article 3(1)(f) covers this offence.

 

 

The Prevention and Combating of Corrupt Activities Act, 2004, makes provision for the offence of trading in influence. This is in terms of section 3 of the Act, which provides for a general offence of corruption.

Article 19: Abuse of functions

This Article criminalises abuse of functions or position by a public official for illicit benefit.

Article 4(c)

Article 4 (c) deals with this.

Article 3(1)(c)

Article 3(1)(c) deals with this.

 

The Prevention and Combating of Corrupt Activities Act, 2004, also has provisions dealing with the issues intended in this Article. See section 4(1) and (2) of the Act.

Article 20: Illicit enrichment

This Article seeks to criminalise unexplained wealth of a public official, i.e. wealth that significantly exceeds the past and present legitimate income of a public official.

Article 8 read with Article 1

In terms of Article 1 (definitions), "Illicit enrichment" means the significant increase in the assets of a public official or any other person which he or she cannot reasonably explain in relation to his or her income.

Article 8 describes it as an act of corruption, and any State Party that has not established illicit enrichment as an offence shall, in so far as its laws permit, provide assistance and co-operation to the requesting State with respect to the offence as provided for in this Convention.

 

Not dealt with.

 

Chapter 3 of the Prevention and Combating of Corrupt Activities Act, 2004, deals with this matter. In the first instance section 22 provides for the institution of investigations regarding pro-perty relating to corrupt activities. Secondly, section 23 provides for an application for and the issuing of investigating directions in respect of the possession of property dis-proportionate to a person's present or past known sources of income or assets.

Article 21: Bribery in the private sector

This Article deals with the criminalisation of bribery in the private sector.

Article (4)(e)

 

Article 4(e) makes provision for this.

Article 3(1)(e)

 

Article 3(1)(e) makes provision for this.

 

 

As mentioned above, the provisions of the Prevention and Combating of Corrupt Activities Act, 2004, particularly applies to corruption and bribery in the private sector.

Article 22: Embezzlement of property in the private sector

This Article criminalises embezzlement in the private sector by a person who works in any capacity in a private sector entity.

 

 

 

Not dealt with.

 

 

Not dealt with

 

 

Embezzlement of property is a crime in terms of our common law. The opinion is held that the general offence of corruption in section 3 of the Prevention and Combating of Corrupt Activities Act, 2004, also applies to this Article.

Article 23: Laundering of proceeds of crime

This Article deals with the criminalisation of laundering of proceeds of corruption when committed intentionally.

Article 6: Laundering of the Proceeds of Corruption

In terms of Article 6(1) State Parties shall adopt such legislative and other measures as may be necessary to establish as a criminal offence the conversion, transfer or disposal or property, knowing that such property is the proceeds of corruption or related offences for the purpose of concealing or disguising the illicit origin of the property or of helping any person who is involved in the commission of the offence to evade the legal consequences of his or her action.

 

 

 

Not dealt with.

 

 

The Prevention of Organised Crime Act, 121 of 1998, provides for combating the money laundering of proceeds of crime.

The Financial Intelligence Centre Act was also promulgated to address the crime of money laundering.

Article 24: Concealment

 

This Article criminalises the continued retention or trans-mission of movable property after the commission of an offence by a person who did not participate in such, but was aware at the time of receipt that such property is illicit.

Article 6: Laundering of the Proceeds of Corruption

In terms of Article 6(2) State Parties shall adopt such legislative and other measures as may be necessary to establish as a criminal offence the concealment or disguise of the true nature, source, location, disposition, movement or ownership of or rights with respect to property which is the proceeds of corruption or related offences.

 

 

 

Not dealt with.

 

Sections 4(2)(g) and 20 of the Prevention of Corrupt Activities Act, 2004, also deal with diversion of property, and accessory after an offence, respectively. Possession or receipt of suspected stolen property are also covered in sections 35 and 36 of the Criminal Procedure Act, 51 of 1977, and these offences are regarded as competent verdicts on charges of theft and related offences.

Article 25: Obstruction of justice

This article deals with criminalisation of obstruction of justice.

 

 

 

Not dealt with

 

 

Not dealt with.

 

This offence is generally provided for in our criminal law. Section 19 of the Prevention and Combating of Corrupt Activities Act, 2004, also creates similar offences.

Article 26: Liability of legal persons

The provisions of this Article impose criminal, civil or administrative liability on legal persons.

 

 

 

Not dealt with

 

 

Not dealt with.

 

 

The provisions of this Article are straightforward and are in line with our law. Our domestic law (corporate law and criminal law) provides for liability of legal persons such as companies, corporations, etc.

Article 27: Participation and attempt

This Article criminalises participation and attempt to commit offences established in accordance with the Convention.

Article 4(I)

 

Article 4 (i) makes reference to participation as a principal, co-principal, agent, instigator, accomplice or accessory after the fact, or on any other manner in the commission or attempted commission of, in any collaboration or conspiracy to commit, any of the acts referred to in this article.

Article 3(1)(h)

 

Article 3(1)(h) refers to participation as a principal, co-principal, agent, instigator, accomplice or accessory after the fact, in the commission or attempted commission of, in any collaboration or conspiracy to commit, any of the acts referred to in this Article.

 

 

 

The provisions of this Article do not in any way contradict our criminal law. The Prevention and Combating of Corrupt Activities Act, 2004, provides for this offence in section 21.

Article 28: Knowledge, intent and purpose as elements of an offence

This Article deals with the inference of knowledge, intent or purpose as the elements of an offence established in accordance with the Convention.

 

 

 

 

Not dealt with

 

 

 

Not dealt with.

 

 

 

This is in line with our law. Knowledge, intent or purpose may be inferred from factual circumstances, if this is the only possible reasonable inference to be drawn. See also section 2(1) and (2) of the Prevention and Combating of Corrupt Activities Act, 2004, which provisions specifically deal with the question of knowledge of an fact.

Article 29: Statute of limitations

This Article provides for limitations period in which to commence proceedings for any offence covered by the Convention. It also provides for the suspension of such limitations period where an alleged offender has evaded the administration of justice.

 

 

 

Not dealt with

Article 13: Transitional Provisions

The provision of this Article shall not affect the principle of non-retroactivity in criminal law, nor shall application of this provision interrupt existing statutes of limitations relating to crimes committed prior to the date of the entry into force of this Protocol.

 

 

 

What this Article seeks to address is provided for in the Prescription Act, 68 of 1969.

Article 30: Prosecution, adjudication and sanctions

This Article deals with prosecution, adjudication and sanctions for offences established in accordance with the Convention.

 

 

Not dealt with

 

 

Not dealt with

 

 

The Prevention of Corrupt Activities Act, 2004, the Criminal Procedure Act, 1977, and the Criminal Law Amendment Act are some of the pieces of legislation that provide for the prosecution and sanctions for acts of corruption.

Article 31: Freezing, seizure and confiscation

 

 

This Article provides for the freezing, seizure and confiscation of proceeds of crime derived from offences covered by the Convention.

Article 16: Confiscation and seizure of proceeds and instrumentalities of corruption

Each State Party shall adopt such legislative measures as may be necessary to enable:

  1. Its competent authorities to search, identify, trace, administer and freeze or seize the instrumentalities and proceeds of corruption pending a final judgement;
  2. Confiscation of proceeds or property, the value of which corresponds to that of such proceeds, derived, from offences established in accordance with this convention;
  3. Repatriation of proceeds of corruption.

Article 8

Confiscation And Seizure

 

 

Each State Party shall adopt such measures as may be necessary to enable:

1. The confiscation of proceeds derived from offences established in accordance with this Protocol, or property the value of which corresponds to that of such proceeds; and

2. its competent authorities to identify, trace and freeze or seize proceeds, property or instrumentalities for the purpose of eventual confiscation.

 

 

 

 

 

The Prevention of Organised Crime Act, 1998, provides for the freezing, seizure and confiscation of proceeds of crime. So do the Criminal Procedure Act, and other legislation, e.g. that governs the operations of the Asset Forfeiture Unit.

Article 32: Protection of witnesses, experts and victims

The Convention prescribes protection for such persons from potential retaliation or intimidation when they give testimony in relation to offences covered by the Convention.

 

Article 5(5): Protection of informants and witnesses

In terms of Article 5(5), States Parties undertake to adopt legislative and other measures to protect informants and witnesses in corruption and related offences, including protection of their identities.

 

 

 

Not dealt with.

 

 

We are covered in this regard through our legislation in the Witness Protection Act, 112 of 1998.

Furthermore, the Prevention and Combating of Corrupt Activities Act, 2004, in section 11 establishes various offences in respect of corrupt activities relating to witnesses and evidential material during certain proceedings.

Article 33: Protection of reporting persons

This Article deals with the protection of whistle-blowers.

Article 5(6): Reporting of corrupt activities

Makes provision for the adoption of measures that ensure citizens report instances of corruption without fear of consequent reprisals.

Article 4(1)(e): Preventative Measures

Article 4(1)(e) provides that for the purposes set forth in Article 2 of this Protocol, each State Party undertakes to adopt measures, which will create, maintain and strengthen systems for protecting individuals who, in good faith, report acts of corruption.

 

 

The Witness Protection Act, 112 of 1998, and the Protected Disclosures Act, 26 of 2000, are aimed at protecting whistle-blowers.

Furthermore, the Prevention and Combating of Corrupt Activities Act, 2004, goes further by imposing a duty to report corrupt transactions. A person who fails to comply with this duty commits an offence. See section 34.

 

Article 34: Consequences of acts of corruption

This Article deals with the consequences of corruption in respect of third parties.

 

 

 

Not dealt with

 

 

Not dealt with.

 

 

Our domestic law provides a remedy for third parties by way of instituting civil action.

Article 35: Compensation for damage

This Article provides for compensation of persons who have suffered damage as a result of an act of corruption.

 

 

Although the Convention does not deal with this in the same way as the UN text, it does cover the other side of the coin by making provision for national legislative measures in order to punish those who make false and malicious reports against innocent persons in corruption and related offences.

 

 

 

Although the Protocol does not deal with this in the same way as the UN text, it does cover the other side of the coin by making provision for national legislative measures in order to punish those who make false and malicious reports against innocent persons in corruption and related offences [Article 4(f)].

 

 

 

Our domestic law provides a remedy for third parties by way of instituting civil action. See also sections 297 and 300 of the Criminal Procedure Act, 1977.

Article 36: Specialised authorities

The Article deals with bodies specialising in combating corruption, with emphasis on the independence of such bodies.

Article 5(3): Independent authorities and agencies

In terms of Article 5(3), States Parties undertake to establish, maintain and strengthen independent national anti-corruption authorities or agencies.

Article 4(1)(g): Preventative Measures

Article 4(1)(g) provides that for the purposes set forth in Article 2 of this Protocol, each State Party undertakes to adopt measures, which will create, maintain and strengthen institutions responsible for implementing mechanisms for preventing, detecting, punish-ing and eradicating corruption.

 

 

South Africa has the following relevant bodies:

  • DSO (Scorpions), which has a unit which deals specifically with corruption cases,
  • The SIU, AFU and SAPS.
  • The Public Protector, the Auditor-General and the Office of the Public Service Commission are independent and also investigate allegations of corruption.

Article 37: Co-operation with

law enforcement authorities

This Article provides for measures to enhance co-operation between law enforcement authorities and an accused who participated in the commission of an offence and is prepared to supply the authorities with useful information for investigative and evidentiary purposes.

 

 

 

Not dealt with

 

 

Not dealt with.

 

 

The Criminal Procedure Act provides for co-operation between accused persons and law enforcement authorities

Article 38: Co-operation between national authorities

This Article provides for co-operation between law enforcement authorities and public officials (administration)

 

 

Not dealt with

 

 

Not dealt with.

 

 

Section 34 of the Prevention and Combating of Corrupt Activities Act, 2004, imposes a duty on persons in authority to report corrupt transactions. The requirements of minimum anti-corruption capacity for all Departments state that there should be mechanisms in place so that employees can report acts of corruption, and that there should be campaigns aimed at raising awareness and encouraging co-operation with law enforcement officials.

The FIC Act requires Financial Institutions to report suspicious transactions.

The Supply Chain Management Framework compels Departments to act on incidents of corruption.

Article 39: Co-operation between national authorities and the private sector

This Article provides for co-operation between national law enforcement authorities and the private sector. It also provides for encouragement of citizens to report corruption.

 

 

 

 

Not dealt with specifically, but covered generally under encouraging the reporting of corruption.

 

 

 

Not dealt with specifically, but covered generally under encouraging the reporting of corruption.

 

 

 

As mentioned above, the Prevention and Combating of Corrupt Activities Act, 2004, creates a duty to report corrupt transactions. The Protected Disclosures Act, 2002, and Witness Protection Act, 1998, encourage persons to blow the whistle. The Financial Intelligence Centre Act also covers the provisions of this Article.

The National Anti-corruption Forum is also instrumental to co-operation among national authorities and the private sector.

Article 40: Bank secrecy

 

This Article provides for development of mechanism in accordance with the domestic law of state parties to overcome obstacles created by bank secrecy.

Article 17: Bank Secrecy

 

Each State Party shall adopt such measures necessary to empower its courts or other competent authorities to order the confiscation or seizure of banking, financial or commercial documents.

The Requesting State shall not use any information received that is protected by bank secrecy for any purpose other than the proceedings for which that information was requested.

State Parties shall not invoke banking secrecy to justify their refusal to co-operate.

Article 8(3): Confiscation and Seizure

Article 8(3) provides that the Requesting State Party shall not use any information received that is protected by bank secrecy for any purpose other than the proceedings for which that information was requested, unless with the consent of the Requested State Party.

 

 

 

 

The Financial Intelligence Act provides for transparency by the financial institutions, and the reporting of suspicious transactions.

The Criminal Procedure Act, 51 of 1977, allows for bank records to be subpoenaed in certain circumstances.

Article 41: Criminal record

The Article provides for consideration of previous convictions in another state of an alleged offender for purpose of using such information in criminal proceedings relating to an offence covered by the Convention.

 

 

 

Not dealt with

 

 

Not dealt with

 

 

The Criminal Procedure Act provides for consideration of previous convictions in the imposition of sentence.

Article 42: Jurisdiction

This Article deals with the jurisdiction of State Parties over offences established in accordance with the Convention.

Article 13: Jurisdiction

Each State Party has jurisdiction over acts of corruption and related offences when:

  1. the breach is committed wholly or partially inside its territory;
  2. the offence is committed by one of its nations outside its territory or by a person who resides in its territory;
  3. the alleged criminal is present in its territory and it does not extradite such person to another country;

(iv) when the offence, although committed outside its jurisdiction, affects, in the view of the State concerned, its vital interests or the deleterious or harmful consequences or effects of such offences impact on the State Party.

Article 5: Jurisdiction

Each State Party shall adopt measures necessary to establish its jurisdiction over the offences established in accordance with this Protocol when:

(a) the offence in question is committed in its territory;

(b) the offence is committed by one of its nationals or by a person who habitually resides in its territory; and

(c) the alleged criminal is present in its territory and it does not extradite such person to another country.

 

 

Section 35 of the Prevention and Combating of Corrupt Activities Act, 2004, makes provision for similar extra territorial jurisdiction.

Article 43: International co-operation

 

This Article calls for co-operation among States Parties in respect of mutual legal assistance, extradition, transfer of criminal proceedings, joint investigations, etc.

Article 19

 

 

The provisions of Article 19 are somewhat different from those of the UN document. It does not go into the same detail. This document includes the following:

  1. Collaborate with countries or origin of multi-nationals to criminalise and punish the practice of secret commissions and other forms of corrupt practices during international trade transactions.
  2. Foster regional, continental and international co-operation to prevent corrupt practices in international trade transactions.
  3. Encourage all countries to take legislative measures to prevent corrupt public officials from enjoying ill-acquired assets by freezing their foreign accounts and facilitating the repatriation of stolen or illegally acquired monies to the countries of origin.
  4. Work closely with international, regional and sub regional financial organisations to eradicate corruption in development aid and co-operation programmes by defining strict regulations for eligibility and good governance of candidates within the general framework of their development policy.

Co-operate in conformity with relevant international instruments on international cooperation on criminal matters for purposes of investigations and procedures in offences within the jurisdiction of this Convention.

 

Article 7: Development And Harmonisation Of Policies And Domestic Legislation

  1. State Parties undertake, to the extent possible, to develop and harmonise their policies and domestic legislation for the attainment of the purpose of this Protocol.
  2. Each State Party shall adopt the necessary legislative or other measures to establish as criminal offences under its domestic law the acts of corruption described in Article III.

The provisions of Article 10 also cover this.

 

 

 

Our legislative framework already covers this through, amongst others, the Extradition Act, Criminal Procedure Act, International Co-operation in Criminal Matters Act and Prevention of Organised Crime Act.

Article 44: Extradition

This Article provides for extradition of persons accused of an offence covered by the Convention, provided that the offence committed is punishable in terms of the domestic law of both the requesting state party and the requested state party. In the absence of extradition treaties, the Convention may be considered the legal basis for extradition in respect of offences covered by the Convention.

Article 15

Article 15 deals with this, but does not deal with as many scenarios as the UN text.

Article 9

Article 9 deals with this, but does not deal with as many scenarios as the UN text.

 

South Africa has extradition treaties with other countries (Botswana, Lesotho, Malawi, Swaziland, USA, Canada, Australia and Israel. Treaties negotiated but yet to be signed with Zambia, Argentina, Hungary, Namibia, Hong Kong and China). In a case where there is not such a treaty, the UN Convention may be used as a basis for extradition.

 

Article 45: Transfer of sentenced persons

This article deals with agreements which may be entered into be state parties for the transfer of sentenced persons

 

 

Not dealt with

 

 

Not dealt with

 

 

South Africa has such agreements with other countries in this regard, and it may consider doing so even in future. In particular, the International Co-operation in Criminal Matters Act 75 of 1996 deals with this.

Article 46: Mutual legal assistance

 

This Article provides for the measure of mutual legal assistance that state parties can afford one another in investigations, prosecutions and judicial proceedings in relation to offences covered by the convention, and the manner in which assistance may be sought.

 

Article 18: Cooperation and Mutual Legal Assistance

 

In accordance with their domestic laws and applicable treaties, State Parties shall provide each other with the greatest possible technical cooperation and assistance in dealing immediately with requests from authorities that are empowered by virtue of their national laws to prevent, detect, investigate and punish acts of corruption and related offences.

The Convention goes on to cover other areas where MLA would apply.

Article 10: Judicial Co-operation and Legal Assistance

State Parties shall afford one another the widest measure of mutual assistance by processing requests from authorities that, in conformity with their domestic law, have the power to investigate or prosecute the acts of corruption described in this Protocol, to obtain evidence and take other necessary action to facilitate legal proceedings and measures regarding the investigation or prosecution of acts of corruption.

State Parties shall provide each other with the widest measure of mutual technical co-operation on the most effective ways and means of preventing, detecting, investigating and punishing acts of corruption.

The provision of this Article shall not affect the obligations under any other bilateral or multilateral treaty that governs, in whole or in part, mutual legal assistance in criminal matters.

Nothing in this Article shall prevent State Parties from affording one another more favourable forms of mutual legal assistance allowed under their respective domestic law.

 

 

 

 

Mutual legal assistance is provided for in the Harare Scheme relating to mutual legal assistance of which South Africa is a signatory. However this instrument is designed for commonwealth countries.

South Africa has mutual legal assistance in criminal matters treaties with Canada, USA, Lesotho. Such treaties negotiated, but not yet signed with Brazil, Zambia, Hong Kong and Namibia.

 

Article 47: Transfer of criminal proceedings

This Article provides for the transfer of criminal proceedings where several jurisdictions are concerned for the concentration of the prosecution.

 

 

 

Not dealt with

 

 

Not dealt with

 

 

Section 111 of the Criminal Procedure Act, 51 of 1977, and section 22(3) of the National Prosecuting Authority Act, 32 of 1998, makes provision for such jurisdictional matters; as does the International Co-operation in Criminal Matters Act.

Article 48: Law enforcement co-operation

This Article provides for co-operation between law enforcement authorities of state parties, such as exchanging information.

Article 18

 

Not deal with specifically, but covered under Article 18.

Article 10

 

Not deal with specifically, but covered under Article 10.

 

 

The International Co-operation in Criminal Matters Act and the Harare Scheme relating to Mutual Assistance in Criminal Matters provide for law enforcement co-operation.

Article 49: Joint investigations

This article provides for the conclusion agreements for purposes of conducting joint investigations

Article 19(5)

 

Not dealt with specifically, but covered generally under Article 19(5)

 

 

Not dealt with

 

 

South Africa can enter into such agreement as it has done in the past like in the Lesotho Highlands Water case.

Article 50: Special investigative techniques

This Article provides for special investigative techniques that may be applied, such as electronic surveillance and allowing admissibility in court of evidence derived therefrom.

 

 

Not dealt with

 

 

Not dealt with.

 

 

The Criminal Procedure Act, 1977, provides for the admissibility of evidence derived in this manner. The legislation on Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002 regulates the interception of certain communications, the monitoring of certain signals and radio frequency spectrums and the provision of certain communication-related information. It has facilitated such investigative techniques, by providing for their admissibility as evidence in court.

Article 51: General provision

This Article simply under-scores the importance of the provisions on the return of assets, and encourages State Parties to offer each other the widest measure of co-operation in this regard.

Article 19

Article 19 covers this broadly.

Article 12

Not dealt with in the same manner. Article 12 (Authority) provides:

1. For the purposes of cooperation and assistance under this Protocol, each State Party shall designate an Authority.

2. The Authority shall be responsible for making and receiving the requests for assistance and co-operation referred to in this Protocol.

 

 

This Article was inserted partly through pressure from developing countries because of the importance of the provisions of this Chapter to them.

Article 52: Prevention and detection of transfers of proceeds of crime

This Article provides for the prevention and detection of illicitly acquired assets. It seeks to place a duty on financial institutions to scrutinise suspicious transactions.

 

 

 

 

Broadly covered in terms of Article 6.

 

 

 

Not dealt with

 

 

 

The Financial Intelligence Act provides such measures. Legislation governing the South African Revenue Services, such as the Income Tax Act, also covers us in this respect.

Article 53: Measures for direct recovery of property

This Article provides for measures that may be applied to enable the State Party, which owns the property to recover such property.

Article 16(1)(c)

 

Article 16(1)(c) makes provision for the repatriation of proceeds of corruption.

Article 8(5) and (6): Confiscation And Seizure

In terms of Article 8(5) a State Party that enforces its own or another State Party’s judgment against property or proceeds described in paragraph 1 of this Article, shall dispose of the property or proceeds in accordance with its laws.

Article 8(6) provides that to the extent permitted by a State Party’s laws and upon such terms, as it deems appropriate, it may transfer all or part of property referred to in paragraph 1 of this Article to another State Party that assisted in the underlying investigation or proceedings.

 

 

 

The International Co-operation in Criminal Matters Act, 75 of 1996 is applicable in such cases and bilateral agreements may be applied as another measure for implementation of this Article.

Article 54: Mechanisms for recovery of property through international co-operation in confiscation

The Article specifies measures that must be incorporated in respect of foreign confiscation orders, and freezing or seizure of property on the request of another State Party

 

 

 

 

Although the Convention does not deal with these issues in the same manner as the UN document, such provisions are broadly covered in Articles 16 (2) and 19(3).

 

 

 

 

 

Not dealt with.

 

 

 

 

The various bilateral and multilateral treaties that we have signed make provision for such co-operation. However, they do not go so far as the recommendations of the Convention. Such specificity would have to be incorporated into existing and future agreements.

Article 55: International co-operation for purposes of confiscation

This Article complements the preceding one in that it sets out the mechanisms that must be in place to facilitate the process and to standardise procedures throughout States Parties.

 

 

 

Same comment as above.

 

 

 

Not dealt with.

 

 

 

The National Prosecuting Authority usually deals with such requests. The various bilateral and multilateral treaties that we have signed make provision for such co-operation. However, they do not go so far as the recommendations of the Convention. Such specificity would have to be incorporated into existing and future agreements.

Article 56: Special co-operation

This Article allows for a State Party to furnish information to another in the absence of a formal request.

 

 

Not dealt with

 

 

Not dealt with

 

 

The International Co-operation in Criminal Matters Act, 1996, is applicable in such cases and bilateral agreements may be applied as another measure for implementation of this Article. However, we do not need to revise our law in this regard.

Article 57: Return and disposal of assets

Property confiscated can be returned according to the provisions of the Convention. Various inroads were made through the negotiation process in order to arrive at a euphemistic "happy medium". Some of the inroads include ‘final judgement’; there must be a request; only priority consideration shall be given if the request does not concern the offence of embezzlement of public funds.

Article 16(2)

 

The Convention only makes mention of "repatriation of the proceeds of corruption".

Article 16(2) does go on to state that the Requested State Party shall, in so far as its law permits and at the request of the Requesting State Party, seize and remit any object…mainly for purposes of criminal proceedings.

Article 8(6)

 

Article 8(6) entitled "Confiscation And Seizure" provides for a lesser version of these provisions. It states as follows:

" To the extent permitted by a State Party’s laws and upon such terms, as it deems appropriate, it may transfer all or part of property referred to in paragraph 1 of this Article to another State Party that assisted in the underlying investigation or proceedings.".

 

 

 

 

Section 21 of the International Co-operation in Criminal Matters Act, 1996, provides for the Director-General of the Department of Justice, subject to any agreement or arrangement between a requesting State and the RSA, to pay over to the former, any amount recovered in terms of a foreign confiscation order, less all expenses incurred, in connection with the execution of such an order.

Section 64(b) of the Prevention of Organised Crime Act, 1998, provides for the balance of all monies derived from the execution of foreign confiscation orders after payments have been made to a Requesting State, to be paid into the Criminal Assets Recovery Account

 

 

Article 58: Financial intelligence unit

The article states that such a unit shall be responsible for receiving, analysis and disseminating to competent authorities reports of suspicious financial transactions.

 

 

 

Not specifically dealt with

 

 

Not dealt with

 

 

The Financial Intelligence Centre Act already deals with this matter.

Article 59: Bilateral and multilateral agreements and arrangements

The purpose of entering into such is to enhance the effectiveness of international co-operation.

Articles 18 and 19

 

Dealt with broadly in articles 18 and 19

Articles 10 and 13

 

Dealt with broadly in articles 10 and 13

 

 

South Africa is compliant in this regard.

Article 60: Training and technical assistance

This article provides for training and technical assistance to state parties personnel responsible for preventing and combating corruption

Article 18(4)

 

Article 18(4) deals with technical assistance.

Articles 10(2) and 11(3)(b)

 

Article 10(2) deals with technical co-operation. Article 11(3)(b) makes the implementing Committee responsible for organising training programmes as and when appropriate.

 

 

With the assistance of the UNODC, there has been the development of a manual for investigators and prosecutors.

Training is to be provided by SAMDI through PSLDP, and is another example of technical assistance and training to be provided to personnel responsible for combating corruption.

The University of Pretoria, in partnership with the OPSC offers a weeklong intensive anti-corruption course.

The capacity of court officials in respect of the new Act will also be addressed through training.

Article 61: Collection, exchange and analysis of information on Corruption

This Article provides for collection and exchange of information by state parties through international and regional organisations.

Articles 18(3) and 22

 

 

Article 18(3) deals with this. The Advisory Board to be established in terms of Article 22 also covers this area.

Article 11(3)(a)

 

 

Article 11(3)(a) makes the implementing Committee responsible for gathering and disseminating information amongst State Parties.

 

 

 

 

The South African Government has such a relationship with United Nations Office on Drugs and Crime. The Country Assessment Project, which was conducted with the assistance of the latter, is an example of what this article seeks to achieve.

The Corruption Management Information System will fulfil this function.

Article 62: Other measures: implementation of the Convention through economic development and technical assistance

This Article provides for measures (including technical and financial assistance to developing countries) to be taken by state parties to the extent possible for optimal implementation of the Convention.

 

 

 

 

 

 

Not specifically dealt with.

 

 

 

 

 

Not specifically dealt with.

 

 

 

 

 

South Africa’s legislative framework is such that it will enable it to implement the Convention

Article 63: Conference of the States Parties to the Convention

This article provides for the establishment of the Conference of State Parties (COP) to improve capacity and co-operation between state parties. It also sets out the functions of the COP

Article 22: Follow up Mechanism

 

There shall be an Advisory Board on Corruption within the African Union.

The Board shall comprise 11 members elected by the Executive Council from among a list of experts of the highest integrity, impartiality, and recognised competence in matters relating to preventing and combating corruption and related offences, proposed by the State Parties. In the election of the members of the board, the Executive council shall ensure adequate gender representation, and equitable geographical representation.

The Convention goes into detail in respect of the functions of the Board.

Article 11: Institutional Arrangements for Implementation

A Committee consisting of State Parties is established to oversee the implementation of the Protocol.

Each State Party shall report to the Committee within one year of becoming a Party, on the progress made in the implementation of this Protocol. Thereafter, each State Party shall report to the Committee every two years.

The Protocol goes into detail in respect of the functions of the Board.

 

 

 

 

Cabinet has given approval for South Africa to prepare to ratify the UN Convention against Corruption. It is anticipated that South Africa will be an active participant in the Conference of the States Parties to the Convention.

 

Article 64: Secretariat

This Article provides for the provision of secretariat ser-vices to the COP by the Secretary-General of the United Nations, and sets out the service that would be provide by the secretariat.

 

 

Not dealt with.

 

Not dealt with

 

No implications for SA

Article 65: Implementation of the Convention

States Parties must take legislative and administrate measures in this regard, and may adopt more severe measures than those provided for in the Convention.

 

 

Not dealt with.

Article 11

 

Article 11 only provides for institutional arrangements for implementation of the Protocol.

 

 

In preparation for the Signing Ceremony, it is the opinion of the State Law Advisor that there are no obstacles in the current text that would prevent us from ratifying the Convention and implementing its provisions.

The drafting of the Prevention and Combating of Corrupt Activities Act, 2004, was done in tandem with the negotiation of the UN Convention against Corruption.

Article 66: Settlement of disputes

This is a standard clause in most international conventions and is in line with the UN Charter’s Chapter that calls for the pacific settlement of disputes.

Article 21: Relationship with other agreements

Subject to the provisions of Article 4 paragraph 2, this

Convention shall in respect to those State Parties to which it applies, supersede the provisions of any treaty or bilateral agreement governing corruption and related offences between any two or more State Parties.

The Convention does not make specific provision for the settlement of disputes.

Article 14: Relationship With other treaties

Subject to the provisions of Article 3 paragraph 2, this Protocol shall in respect of those countries to which it applies, supersede the provisions of any treaty or bilateral agreement governing corruption between any two State Parties.

In terms of Article 22 any dispute arising from the interpretation or application of this Protocol, which cannot be settled amicably, shall be referred to the Tribunal.

 

 

 

It would appear that there might be some conflict in respect of which of the treaties takes precedence over the other. In spite of these clauses, it is submitted that, in the event of a dispute in this regard, the Vienna Convention on Treaties should apply.

Article 67: Signature, ratification, acceptance, approval and accession

This is a standard clause in most international conventions.

Article 23

 

 

Article 23 deals with this.

Article 16, 17 and 19

 

 

Articles 16, 17 and 19 deal with this.

 

 

 

We follow this procedure.

Article 68: Entry into force

The Convention enters into force on the 90th day after the date of deposit of the 30th instrument of ratification.

Article 23

In terms of Article 23, The Convention shall enter into force thirty (30) days after the date of the deposit of the fifteenth instrument of ratification or accession.

For each State Party ratifying or acceding to the Convention after the date of the deposit of the fifteenth Instrument of Ratification, the convention shall enter into force thirty (30) days after the date of the deposit by that State of its instrument of ratification or accession.

Article 18: Entry Into Force

This Protocol shall enter into force 30 days after the deposit of the instruments of ratification by two thirds of the Member States.

 

Article 69: Amendment

This is a standard clause in international conventions.

Article 25: Amendment

This Convention may be amended if any State Party makes a written request to the chairperson of the Commission.

Article 21: Amendment

An amendment to this Protocol shall be adopted by a decision of three-quarters of Members of the Summit.

 

 

No immediate implications

Article 70: Denunciation

This is a standard clause in international conventions.

Article 26; Denunciation

Any State Party may denounce the present convention by sending notification to the Chairperson of the Commission. This denunciation shall take effect six (6) months following the date of receipt of notification by the Chairperson of the Commission.

 

 

Not dealt with.

 

No immediate implications

Article 71: Depository and languages

This is a standard clause in international conventions.

Article 27: Depository

 

The Chairperson of the Commission shall be the depository of this convention and the amendments thereto.

No mention is made of the official languages of the AU.

 

 

 

Not dealt with.

 

 

No immediate implications