NARRATIVE
FOR PORTFOLIO COMMITTEE
South
Africa’s Accession to the Organisation for Economic Co-operation and
Development (OECD) Convention on Combating Bribery of Foreign Public Officials
in International Business Transactions
1.
The OECD is the premier economic think-tank and discussion forum of the
world’s most developed countries. It conducts research on behalf of its
members, and also has an outreach programme for non-members. Over the past few
years, there has been growing South African interest in tapping into the OECD’s
wide range of expertise and information. This has resulted in an increase in
the level of interaction between government departments in South Africa and the
OECD.
2. The OECD
Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions (hereinafter referred to as “the Convention”) is
relatively narrow and specific in its scope. Its sole focus is the use of
domestic law to criminalise bribery of foreign public officials. It applies to
both active and passive bribery but does not apply:
·
to forms of corruption other than bribery,
·
to bribery that is purely domestic, or
·
to bribery in which the direct or indirect recipient of the benefit is
not a public official.
It also does not include cases where the bribe was paid for purposes
unrelated to the conduct of international business and the gaining or retaining
of some undue advantage in such business.
In terms of the Convention, punishment must be “effective, proportionate
and dissuasive”, and of sufficient seriousness to trigger the application of
domestic laws governing mutual legal assistance and extradition (Article 3).
3. Since the
Convention came into force, the OECD Working Group on Bribery in International
Business Transactions (hereinafter referred to as the “Working Group”) has
adopted a rigorous process of assessing the status of implementation and
compliance with its terms. Countries assess their own progress as well as that
of other States Parties. For each of the countries reviewed, the OECD adopts a
report, including an evaluation.
4. Both the
Convention and the Revised Recommendations of the OECD Council on Combating
Bribery in International Business Transactions provide for outreach activities
with non-member countries. The purpose of these activities is two-fold: to
secure accession of the broadest range of non-OECD countries to the Convention
and to provide a forum for consultations with countries that have not yet
adhered in order to promote wider participation in the Convention, its related
texts and their follow-up. A key element of this strategy is the continuous
development of partnerships with major stakeholders. It is against this
backdrop that the OECD initiated discussions regarding South Africa’s accession
to the Convention.
5. Cabinet approved
that South Africa commence with preparation to accede to the Convention
(Cabinet Memorandum 17 of 2004). This was communicated to the Secretary-General
of the OECD. The OECD Council has examined the request of South Africa to accede to
the above-mentioned Convention and to join the OECD Working Group. In accordance with procedures concerning
such requests, the Council referred the matter to the Working Group for a
technical opinion and decided to invite South Africa to accede to the
Convention and to participate in the Working Group.
6.
The technical opinion of the Working Group was based on an assessment of
South Africa’s economic situation and its legal and institutional framework to
fight corruption. Inputs for a response to the questionnaire were made through
a technical Sub-Committee of the Anti-corruption Co-ordinating Committee.
7. As a Non-member
participant of the Working Group on Bribery in International Business
Transactions, a country has all the privileges of membership, other than voting
on new member applications or on the status of observer countries. Non-member
participants can make interventions and draw on the full capacity of meetings.
8.
Factors that influence the OECD’s decision to grant accession include
the mutual benefit that could be gained in policy studies and institutional
reviews, and the important role that South Africa plays in the region. South Africa is a key role-player in matters
economic, political and social on the African continent. Increasingly, South
Africa is also becoming a major role-player in the global economy. Given the
importance of international trade and investment to our country, bribery in
international business transactions raises serious concerns for us.
9.
South Africa has adopted legislation that is at the cutting edge of
current anti-corruption measures to combat corruption. The Convention binds
parties to full transparency in international commercial dealings, and seeks to
root out corrupt business practices. Full acceptance of such a legally binding
document would contribute to the improved perception of South Africa abroad.
Some of the benefits that would accrue from South Africa’s accession to the
Convention include:
9.1
With the OECD interest in promoting regional harmonisation, accession
would allow for further opportunities for engagement on the regional and
continental level, vis-à-vis the SADC Regional Programme against Corruption and
the AU Convention on Preventing and Combating Corruption;
9.2
It would offer wider opportunities for the training of government and
private sector officials;
9.3
A strong positive impact in the minds of the international community, in
that South Africa would not only be the first African country to accede to the
Convention and participate in the Working Group, but it would become evident
that South Africa already surpasses most of the standards set by the
Convention;
9.4
As a Non-member Participant, annual reviews can be carried out at the
request of the country concerned.
9.5
An opportunity to address the
“supply side” of this type of corruption is provided.