Content

Georg Huber-Grabenwarter, Supporting the Implementation of International Anti-Corruption Initiatives: The German UNCAC Project in:

Diana Schmidt-Pfister, Sebastian Wolf (Ed.)

International Anti-Corruption Regimes in Europe, page 195 - 212

Between Corruption, Integration, and Culture

1. Edition 2010, ISBN print: 978-3-8329-5846-6, ISBN online: 978-3-8452-2573-9, https://doi.org/10.5771/9783845225739-195

Series: Schriftenreihe des Arbeitskreises Europäische Integration e.V., vol. 70

Bibliographic information
195 Supporting the Implementation of International Anti-Corruption Initiatives: The German UNCAC Project Georg Huber-Grabenwarter1 1. Introduction In my father’s life, it was partly tribalism and patronage in an independent Kenya that for a long stretch derailed his career, and we know that this kind of corruption is a daily fact of life for far too many. (…) No country is going to create wealth if its leaders exploit the economy to enrich themselves, or police can be bought off by drug traffickers. No business wants to invest in a place where the government skims 20 percent off the top, or the head of the Port Authority is corrupt. No person wants to live in a society where the rule of law gives way to the rule of brutality and bribery. That is not democracy, that is tyranny, and now is the time for it to end. (B. Obama, Speech to the Parliament of Ghana, 11 July 2009) These words of US President Barack Obama illustrate the issue of corruption2 (not only) in development contexts in a nutshell: Despite the difficulties in measuring it, today it is widely recognised that corruption is a wide spread phenomenon – worldwide – having tremendous negative effects on economic, political and social developments of countries. While far from being a new phenomenon, the current degree of attention paid to corruption is unprecedented. The amount of policy statements and documents of leading politicians like Obama, within the G8 or the United Nations (UN) system, the increase in non-governmental organisations (NGOs)3 as well as of international anti-corruption instruments, most prominently anti-corruption conven- 1 The views expressed in this chapter are strictly personal and do not necessarily reflect official views of the Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) GmbH. My special thanks goes to Dr. Frédéric Boehm who made significant contributions to this chapter as well as to Stefanie Teggemann, Johanna Joerges, Johanna Beate Wysluch, Dr. Dedo Geinitz and Hannes Hechler, all very motivated (partly former) team members of the German UN- CAC Project. 2 Since corruption is a value-laden concept and some cultures do perceive certain acts as corruption while others do not (e.g. in some cultures patronage is not regarded as an act of corruption), there is currently no internationally agreed definition of corruption. For the purpose of this chapter reference to Transparency International’s (TI) definition defining corruption as the ‘misuse of entrusted power for private gain’ will be made. It is beyond the scope of the present paper to enter into the debate of defining the term corruption. For a brief discussion on this issue see Tanzi (1998: 8-10); Babu (2006: 4-6); Zimring/Johnson (2006: 3-17). 3 Apart from TI, important NGOs that have been founded in this context are, for instance, Global Integrity, Publish What you Pay, Revenue Watch Institute, Global Witness or Tiri. 196 tions like the UN Convention against Corruption (UNCAC), as well as of media reporting from major corruption incidents is indeed extraordinary. Thus it is not surprising that also the international development community today devotes fighting corruption a quite prominent chapter in its activities to reach the Millennium Development Goals (MDGs)4 and to increase the effectiveness of aid. Paragraph 24 of the Accra Agenda of Action (AAA)5, representing the currently primary guiding document for the development community, reads: Effective and efficient use of development financing requires both donors and partner countries to do their utmost to fight corruption. Donors and developing countries will respect the principles to which they have agreed, including those under the UN Convention against Corruption. Developing countries will address corruption by improving systems of investigation, legal redress, accountability and transparency in the use of public funds. Donors will take steps in their own countries to combat corruption by individuals or corporations and to track, freeze, and recover illegally acquired assets. To what extent donors in this context support the implementation of international anti-corruption instruments and conventions within their activities is going to be explored in the present paper. The paper is far from claiming completeness. On the contrary, it will entirely focus on UNCAC and the activities of German Development Cooperation (GTZ) in supporting the implementation of UNCAC. Based on the experiences of GTZ, key challenges of technical assistance in supporting anticorruption will be outlined and arguments will be made on how to overcome at least some of these challenges. 2. The 1990s as a Starting Point For many decades, fighting corruption has been a taboo topic for both the international community in general and for development cooperation in particular. Up until the 90s, within the international community no meaningful international instrument addressing corruption existed, corruption was perceived as a non-touchable issue for the development community and sovereign countries though criminalising corruption within their own borders, for a long time treated transnational acts of corruption as a necessary evil, unavoidable and even tax deductible in many countries.6 With the ex- 4 The MDGs mark the most important goals of development efforts worldwide. They cover the areas poverty and hunger (goal one), education (two), gender equality (three), child and maternal health (four and five), HIV/AIDS (six), environmental sustainability (seven) and global partnership (eight). Each of these goals has certain parameters that the development community aims to achieve until 2015. 5 The Accra Agenda for Action (AAA) was adopted in 2008 as the successor of the Paris Declaration of Aid Effectiveness (2005). Both instruments generally aim at increasing the effectiveness of aid. 6 In Germany, e.g., it was only with the entering in force of the 1998 ratified OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 197 ception of the US, where the Watergate scandal yielded the adoption of the Foreign Corrupt Practices Act (FCPA)7 criminalising bribery of also foreign public officials, almost no country penalised foreign bribery within its criminal system. From the 1990s onwards there was a shift in this perception and the international community started putting a major focus on fighting corruption. Consequently, many regional (the first one was the Inter-American Anti-Corruption Convention in 1996) and international anti-corruption instruments (most importantly the UNCAC) were adopted, recognising corruption as a transnational phenomenon and, inter alia, requiring member states to criminalise acts of corruption committed abroad. Literature often outlines multiple factors for this new focus on anti-corruption: the end of coldwar area, the accelerating globalisation process and increasing economic interdependencies, increasing pressure of NGOs on governments, new findings on the costs and consequences of corruption and pressure by the U.S. fearing competitive disadvantages for their companies due to the FCPA (Wolf 2007: 13-14; 2008: 368). Within the international development community, in particular, corruption was treated as a non-issue for almost 40 years. This was due to two major assumptions: 1) Corruption was considered as an issue entirely falling into the internal affairs of sovereign countries, and 2) some economists considered corruption not as a major impediment to development or at least as a necessary evil on the developing country’s path to modernisation (Huntington in Heidenheimer 1989: 8-11). Easterly (2001: 214) states in this context: Despite the obvious importance of corruption in economic development, it has not attracted much attention from economists until recently. The prestigious four-volume Handbook of Development Economics, published from 1988 to 1995, does not mention corruption anywhere in 3,047 pages of text. Starting in the early 1990s, it was inter alia pressure by Transparency International and the famous speech of the then World Bank President Wolfensohn on the ‘cancer of corruption’ in 1996 that finally yielded that fighting corruption was prominently put on the agendas of international development community. Today, almost all multilateral and bilateral donors put a strong emphasis on fighting corruption – arguing that corruption is unqualifiedly bad for sustainable development. 3. Why Donors (Should) Engage in Anti-Corruption This argument, however, has traditionally been challenged by many economists. While some argued that corruption is not necessarily inconsistent with development (Barguinsky 1996) others even claimed ‘that corruption facilitated development by (OECD Anti-Bribery Convention) in 1999 that bribing of public officials abroad was criminalized and not tax deductible anymore. 7 More on the FCPA see Colares (2006: 4 et seq.). 198 greasing the wheels of a rigid administration’ (Huntington 1968; Leff 1964).8 D. de Tray, vice-president of the Centre for Global Development, only recently pushed donors to ‘get back to development work’ and not to focus too largely on corruption (de Tray: 2006). Even though arguments in this manner today represent a minority opinion only, they are serious since up until now macroeconomic studies have not found a robust direct relationship between growth and corruption (Kolstad 2008: 2). Since donors in turn primarily justify their anti-corruption policies with corruption’s negative consequences on growth and the economy, it is important to have a closer (but brief) look on the issue of costs and consequences of corruption. 3.1. Negative Economic Consequences of Corruption Corruption is considered a phenomenon that is difficult to measure. Therefore its impact on development cannot easily be quantified neither. The increasing awareness of and research on corruption, however, also yielded some new insights and tools that aim at measuring this phenomenon (UNDP, Global Integrity: 2008). At least estimates on the amplitude of corruption are nowadays possible: The World Bank Institute estimates that more than US $ 1 trillion are paid each year only in bribes (Kaufmann 2005: 83). 30% of official development assistance supposedly disappears due to corruption. Compared with foreign assistance provided to developing countries, it is estimated that the amount of money stolen or extorted from developing countries is more than ten times higher than the amount of foreign assistance (approximately US $ 100 billion) that is provided each year (UNDP 2008: 10). Even though the macroeconomic relationship between growth and corruption cannot be clearly established, there is theoretical evidence that corruption has negative economic consequences: Corruption distorts markets and the allocation of resources, it distorts incentives in that individuals might turn to corrupt practices instead of investing into productive areas of engagement (The German UNCAC Project 2008: 3 et seq.). Some empirical studies underscore these impacts. Corruption has negative effects on productivity (Lambsdorff 2003), and tends to deter (foreign direct) investments. For business, corruption increases risks, functioning like unexpected taxes, sometimes pushing firms into unofficial markets (Kaufmann in Stapenhurst 2006: 14). The Corruption Perception Index (CPI) from TI not only significantly correlates with the Global Competitiveness Index from the World Economic Forum, but also, e.g., with Human Development Index (HDI) of the United Nations Development Programme (UNDP 2008a: 15, 16, 25). It should be also noted that there are obvious direct effects of corruption on the economy: this is the looting of millions of 8 Huntington claimed: ‘In terms of economic growth, the only thing worse than a society with a rigid, over centralized, dishonest bureaucracy is one with a rigid, over centralized, honest bureaucracy. A society which is relatively uncorrupt … may find a certain amount of corruption a welcome lubricant easing the path to modernization’ (quoted in Kaufmann 2006: 13). With respect to similar arguments, see Tanzi (1998: 21 et seq.). 199 US$ of former political leaders.9 All these negative effects and correlations are at least strong indicators that corruption also has negative effects on growth, despite the fact that there is no direct macroeconomic evidence that corruption deters growth. 10 3.2. Social and Political Consequences of corruption But even if only focusing on the social and political consequences of corruption, a strong argument can – even must – be made that donors should put anti-corruption prominently on their agenda. At least since A. Sen’s ‘Development as Freedom’, it is widely recognised that sustainable development does not only include economic prosperity but also and particularly social and political freedoms. Quoting Aristotle who stated that the maximisation of income and wealth is ‘merely useful and for the sake of something else’, Sen argues that ‘(f)or the same reason, economic growth cannot sensibly be treated as an end in itself’ and that ‘political liberty and civil freedoms are directly important on their own, and do not have to be justified indirectly in terms of their effects on the economy’ (Sen 1999: 14, 16). This includes first and foremost the protection and promotion of civil and political rights. And yet it is exactly these rights that are heavily infringed by corruption.11 Corruption, e.g., fosters inequality, thus violating inter alia the right to equal protection before the law and the prohibition of discrimination (see, e.g., Articles 2, 26 International Covenant on Civil and Political Rights, ICCPR)12. Particularly the poor suffer disproportionally from corruption: administrative barriers and weak property rights make it almost impossible to escape from corruption; it is often reported that the poor cannot even afford bribes that are demanded for basic services like health and education and thus sometimes are excluded from these services. In fact, also almost all economic, social and cultural rights enshrined in the International Covenant 9 TI estimates that the former Indonesian leader Suharto has embezzled around US $ 15-35 billion. Ferdinand Marcos from the Philippines, Mobutu from Zaire and former dictator Sani Abacha (1993-1998) from Nigeria supposedly have stolen around US $ 5 billion (Smith/Pieth/ Jorge 2007: 1). 10 Results of investigations demonstrating that if a country were to improve its corruption score by 2.38 points on a 10-point scale, its annual per capita gross domestic product (GDP) growth would rise by more than half a percentage point also clearly show into this direction (Mauro 1997: 91). 11 On a more detailed analysis of the human rights consequences of corruption see, e.g., International Council on Human Rights Policy/Transparency International (2009); Koechlin/Carmona (2009); Mbonu (2005). 12 Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966; entry into force 23 March 1976, in accordance with Article 49. 200 on Economic Social and Cultural Rights (ICESCR)13 like the rights to food or adequate housing (both Art. 11) might be seriously infringed by corruption. Corruption may directly violate civil and political rights, e.g., if bribes are offered to judges in order to influence the final decisions thereby directly affecting major principles of the right to a fair trial like the independence and impartiality of the judiciary (Art. 14 ICCPR). Corruption may also indirectly violate human rights, for example, if whistleblowers are harassed or tortured as a consequence of reporting corrupt behavior to relevant official bodies Art. 7 and 9 ICCPR). Very importantly, those accused of corruption often act with impunity, thus denying (not only) the poor effective means of redress (Art. 2(3) ICCPR), yielding public distrust in government and invading moral systems – often for decades. Ngozi Okonjo-Iwiela, former Finance Minister of Nigeria emphasises particularly the long lasting negative noneconomic effects of corruption Nigeria has suffered after the Abacha dictatorship (Okonjo-Iweala 2007: 7): In Nigeria prior to recent reforms, the culture of impunity and corruption that crept in under non-transparent, authoritarian regimes were so pervasive that it had corroded the psyche and moral fiber of Nigerian society. There was complete invasion of our moral and values system and well beyond the economic sphere (…). Despite a vigorous fight launched against corruption, Nigeria is still fighting these ills today. It is by no means the only country in Africa or even the developing world struggling with these issues at present. These words are serious and the consequences are enormous. Hence, even if corruption has no negative effects on the economy (but it does), donors morally were to engage in anti-corruption. 4. Donor Support for Implementing International Anti-Corruption Initiatives Almost all donors – also due to pressure by civil society groups – today thus have adopted policies and initiatives that aim at 1) fighting corruption within their own operations as well as 2) supporting developing countries in their efforts to fight corruption. To what extent donors thereby make use of international anti-corruption instruments is going to be explored in the following chapter. Focus will be put on the activities of German Development Cooperation (GTZ) in the context of capacity development of developing countries.14 The primary guiding documents for this area of 13 Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966; entry into force 3 January 1976, in accordance with article 27. 14 Almost all donors also dispose of extensive regulations – mostly in the form of Codes of Conduct – to internally prevent corruption within their own operations (e.g. the Danish International Development Agency (DANIDA) has elaborated a comprehensive code of conduct, see http://www.um.dk/NR/rdonlyres/04D50FCB-E98F-4031-94C3-AD888E66F7CC/0/CodeofCo nductUK.pdf; based on the Federal Government Directive concerning the Prevention of Corruption in the Federal Administration from 2004 also the Federal Ministry for Economic Cooperation and Development (BMZ) as well as its implementing agencies like GTZ or the 201 engagement are the Paris Declaration on Aid Effectiveness as well as the Accra Agenda for Action outlining ownership, alignment, harmonisation, managing for results, and mutual accountability as key principles that are to be complied with. 4.1. The German UNCAC Project Commissioned by the German Federal Ministry for Economic Co-Operation and Development (BMZ), within GTZ a project specifically aiming at supporting the UN Convention against Corruption (UNCAC) was launched in 2004: the German UN- CAC Project15. Its aim is to support partner countries of German Development cooperation in the implementation of the UNCAC.16 Even though, the German UNCAC Project de facto functions as an anti-corruption focal point for GTZ, taking into account many anti-corruption instruments and providing advisory services within German development cooperation to anti-corruption not only focusing on the UNCAC, the UNCAC remains the principal reference document for the German UNCAC project. This provides the German UNCAC Project not only with the possibility of depoliticising a politically sensitive issue by ‘merely’ supporting partner countries in implementing an international treaty (to which they are obliged to);17 since the UNCAC covers almost every aspect of (anti-) corruption, it provides German Development Cooperation also with many opportunities to fight corruption. 4.2. The UN Convention against Corruption The UNCAC is the first globally applicable international convention explicitly aiming at fighting corruption.18 The Convention entered into force on 14 December Credit Agency for Reconstruction (KfW) dispose of substantial code of conducts – for GTZ see http://www.gtz.de/en/unternehmen/20368.htm). Since this chapter focuses on the external anti-corruption efforts of donors, however, reference should be only made to the internal codes mentioned above. 15 See http://www.gtz.de/en/themen/politische-reformen/korruption/19075.htm. 16 German Development Cooperation concentrates its activities on around 80 countries, most of them in Sub-Sahara Africa and Asia (in about 60 of those countries specific country programmes and priority areas have been developed; in around 20 of those countries support is provided via regional or thematic programmes). 17 According to the principles of pacta sunt servanda and bona fide of international public law, member states are legally obliged to fully comply with the provisions of the convention. C.f. only Art. 26 of the Vienna Convention on the Law of Treaties: ‘Every treaty in force is binding upon the parties and must be performed by them in good faith’. 18 It complements already existing conventions on a regional level and goes both in geographical reach as in terms of content further than all the Conventions that have been adopted so far. This includes the Inter-American Convention against Corruption (IACA, 1996), the OECD Convention on Combating Bribery of Foreign Public Officials in International Business 202 2005. As at October 2009, 140 countries have signed the Convention, 141 are Member States.19 The Convention does not entail a definition of corruption; it defines only certain aspects related to corruption (like ‘public official’ or ‘proceeds of crime’). In combination with the criminalisation of such concepts as bribery, embezzlement, money laundering (etc.) that encompass almost all aspects currently referred to as corruption, many speak of a ‘de facto’ definition within the Convention (Babu 2006: 6). The UNCAC is divided into five major, substantial chapters. The chapter on preventive measures (chapter II) obliges member states inter alia to establish preventive anti-corruption bodies (Art. 6), take measures that prevent corruption in the public sector (Art. 7, 8, 9, 10), or promote the active participation of groups outside the public sector (particularly civil society organisations) in the prevention and fight against corruption (Art. 13). Within the chapter on criminalisation and law enforcement (chapter III) member states are required to establish authorities specialised in law enforcement (Art. 36), criminalise active and passive bribery of (foreign) public officials and public officials of international organisations (Art. 15, 16) as well as illicit enrichment (Art. 20) or bribery in the private sector (Art. 21), take measures that ensure the liability of legal persons (Art. 26) or take measures to protect witnesses and whistleblower (Art. 32, 33). The chapter on international cooperation (chapter IV) requires member states especially to provide mutual legal assistance as well as to cooperate in extradition issues. Chapter V on asset recovery in turn was treated with enormous depth during the negotiation period (see Webb 2005: 198 et seq.). Especially developing countries, largely supported by the U.S., required provisions that facilitate this legally and practically complex issue of recovering proceeds that were illegally acquired and deposited at foreign bank accounts. The chapter on asset recovery was thus also outlined as a ‘fundamental principle of the convention’ (Art. 51). It aims at facilitating the processes of detecting, freezing, seizing, confiscating and returning proceeds of crime (see Smith/Pieth/Jorge 2007). Through including a chapter on technical assistance (chapter VI) in the Convention, the UNCAC is one of the few conventions explicitly requiring member states to also provide technical assistance. Chapter VI inter alia requires member states to consider ‘affording on another the widest measure of technical assistance’ or to make concrete efforts to provide technical assistance to developing countries to assist them in their needs for the implementation of this convention (Art. 62 par. 2 lit c). The final two chapters prescribe the role of United Nations Office on Drugs and Crime (UNODC) as secretariat of the UNCAC, outlines the role of the Conference of Transactions (OECD Anti-Bribery Convention, 1997), the Criminal Law and Civil Law Conventions of the Council of Europe (1998), or the African Union Convention on Preventing and Combating Corruption (AUCPCC, 2003). With the exception of Asia and the Pacific and the Middle-East, all regions have adopted regional anti-corruption conventions. 19 This is an enormous amount of countries being Member States of the Convention and demonstrates the political prominence fighting corruption and the UNCAC in particular currently enjoy. 203 States Parties (COSP) that meets biannually in order to discuss important challenges in the implementation of the Convention as well as to establish a mechanism or body to review the implementation of the Convention, and contain rules on ratification, amendment or entry into force of UNCAC. The COSP so far has met in Jordan (2006), Indonesia (2008) and Doha, Qatar (2009). It has established permanent working groups on technical assistance, asset recovery and for the establishment of a review mechanism for the convention. All these chapters contain relatively detailed obligations for member states. A legislative guide and a technical guide support countries in implementing the Convention.20 However, the Convention distinguishes between provisions that are ‘mandatory’ (obligation to take legislative or other measures), measures states parties ‘must consider applying or endeavour to adopt’ (obligation to consider), ‘optional’ measures (measures States parties may wish to consider),21 and thus leaves Member States (in some important areas) a certain discretionary power whether they deem it necessary to implement a provision or not.22 Hence, despite its very comprehensive nature, this distinction might weaken the Convention to a meaningful extent. The most important shortfall of the Convention, however, is that the Convention currently does not contain of a mechanism or body that monitors the proper implementation of the Convention. Currently, the working group on review of implementation is conducting negotiations in order to develop such a body. Since member countries have opposite views in some important areas like civil society participation, country visits and the publication of reports, the negotiations so far have been difficult. In November 2009, the COSP reached a rather weak agreement (see Wolf/ Schmidt-Pfister, in this volume). 4.3. Activities of the German UNCAC Project to Support Implementing UNCAC Chapter VI of the UNCAC is the basis for the German UNCAC project. The project operates at four different levels: 1) Advisory services and support to the BMZ, other relevant German resorts as well as within GTZ with respect to all aspects related to (anti)-corruption in general and the UNCAC in particular. 2) International network- 20 Most of the provisions in the UNCAC are non-self-executing, i.e. they impose a duty on lawmaking organs of States parties to transform international into national law. Thus if member states are not in full compliance with the requirements of the Convention, they have to – according to their own legal tradition – adopt or amend existing legislation or take other measures in order to substantiate the provisions of the Convention. 21 Several provisions further dispose of ‘safeguard clauses’, which limit States obligations to implement the relevant provision ‘only’ in accordance with constitutional and fundamentals principles of its legal system. 22 Important areas like transparency in political party financing (Art. 7 par. 3 UNCAC), passive bribery of foreign public officials or officials of a public international organisation (Art. 16 par. 2 UNCAC) or bribery in the private sector (Art. 21 UNCAC) are, for instance, provisions states parties have to consider only. 204 ing as well as supporting and influencing international initiatives and organisations to combat corruption (UN, Organisation for Economic Co-operation and Development/OECD, European Union, U4 Anti-Corruption Resource Centre). 3) Knowledge-management including fostering the issue of anti-corruption within German development cooperation in general and GTZ in particular. 4) Supporting pilot projects that facilitate the implementation of the UNCAC in selected partner countries. The first level includes, e.g., political advice to the BMZ at G8 summits, advisory services to the German executive director of the World Bank or consulting the Ministry on issues such as which initiative or organisation aiming at fighting corruption might ideally be supported by the Ministry. Additionally, the German UNCAC project aims at putting the issue of anti-corruption prominently on the agenda of German development cooperation. The second level is international networking and supporting and influencing international initiatives and organisations to combat corruption so as to make them most effective for the work in the partner countries. Representing and in cooperation with BMZ, the German UNCAC project is actively involved in the UNCAC working group on Technical Assistance (TA) and supports the German Ministry of Justice in the working groups on Asset Recovery and Review Mechanism. Within the working group on TA, the German UNCAC project together with other OECD Development Assistance Committee (DAC) Anti-Corruption Task Team Members elaborated a document outlining the importance of TA for the implementation of the UNCAC. The strengthening of national policy processes as well as the improvement of the relationship and dialogue between governments and external partners thereby are key aspects. The UNCAC was outlined as the major reference instrument for future anticorruption initiatives, the review mechanism considered as fundamental for the implementation of the UNCAC and also for the provision of TA and it was stressed that there are no one-size-fits all solutions and therefore especially assessments were considered as essential (UNCAC Working Group on Technical Assistance 2008). Within the working group on review mechanism, the German UNCAC project supports the Ministry of Justice in its efforts to contribute to the establishment of an effective review mechanism having largely contributed to the German proposal on Terms of Reference for the review mechanism that was requested by UNODC at the beginning of the negotiations. The German UNCAC Project is also actively engaged in the OECD DAC Anti- Corruption Task Team (ACTT) or supports the OECD ADB Anti-Corruption Initiative for Asia and the Pacific. The ACTT aims at donor harmonisation in the area of anti-corruption in order to implement the Paris Declaration on Aid Effectiveness. The ACCT has, e.g., elaborated principles on donor coordination in anti-corruption in which is outlined that donors should support local capacities in fighting corruption, should also address the supply-side of corruption and should coordinate as 205 much as possible in order to avoid duplication of efforts.23 The German UNCAC Project is also financial and conceptual partner of the U4 Anti-Corruption Resource Centre (U4) that provides anti-corruption trainings, information on anti-corruption for donors, a help desk or a list of anti-corruption projects of all partner agencies. U4 functions as the linkage between policies such as those of the OECD ACTT and the practical work in the field.24 Within the third level, the German UNCAC project works like a focal point to anti-corruption within GTZ and provides advisory services to other sectors like water, health, education or the private sector. It provides also consultancy to internal processes or to highly risky sectors like emergency aid. One of the German UNCAC projects tools in this context is the provision of an anti-corruption weblog for staff of German development cooperation. The fourth level is the level of pilot projects that aim at supporting the implementation of all chapters of the UNCAC or of some parts of it in partner countries. The German UNCAC project together with projects in the field and international experts, e.g., has supported UNCAC Compliance Reviews in Colombia, Indonesia, Bangladesh and Kenya: A compliance review compares national anti-corruption legislation and practice with the UNCAC and establishes to what degree the country complies with UNCAC requirements de jure and de facto (UNCAC Project 2009a). It not only serves as a tool to bring the country into full compliance with its international obligations, but also to initiate comprehensive governance and anti-corruption reforms. Implementing action plans thus frequently follow the analysis – as has happened, e.g., in Bangladesh. Within the process of conducting such compliance reviews, multiple stakeholders are involved, including government institutions, civil society, the private sector, international experts and GTZ. During the Kenyan Compliance Review, e.g., the national (legal) framework and the practical implementation thereof were analysed and gaps identified against the background of UNCAC via using leading and coordinating committees and multi-stakeholder workshops. The product is a narrative report as well as a matrix that outlines gaps and mentions recommendations to the country how to best implement the respective provision. Figure 1: The German UNCAC Project – structure of a compliance review UNCAC Provisions Domestic legal / regulatory regime Compatibility between UNCAC and domestic regime Compliance and gaps between law and practice Remarks / recommendations Source: author. 23 ‘To meet commitments agreed in relevant international and regional conventions including the UN Convention against Corruption (UNCAC)’ is explicitly outlined in the paper (OECD 2007: 43). 24 U4 has, e.g., elaborated a special thematic page providing donors with information on how to best support developing countries in implementing UNCAC. C.f. in this context also the U4 study on implementing UNCAC by Hussmann/Penailillo (2007) or Schultz (2007). 206 Generally, the German UNCAC Project’s activities fall into a wider range of explicit and implicit anti-corruption projects of German Development Cooperation that support, e.g., the judiciary (Ghana, Liberia, Ivory Coast, Sierra Leone), audit institutions (Chile, Peru, Mauritania), anti-corruption commissions (Kenya, Indonesia, Yemen) or the private sector (Malawi) in their anti-corruption efforts. In cooperation with these and other projects inter alia the following initiatives that also aim at implementing UNCAC have been supported: support to the Kenyan and Indonesian anonymous whistle-blowing systems (Art. 32, 33 UNCAC); supporting the CRINIS project of TI to make political party financing more transparent (Art. 7 par. 3 UN- CAC); advisory services to Yemen with respect to the establishment of an internal code of conduct for public officials (Art. 8 UNCAC), support to asset recovery trainings in Indonesia (chapter V UNCAC), support to the Anti-Corruption Commissions in Indonesia (KPK) or Sierra Leone to raise awareness with respect to corruption (Art. 6, 13 UNCAC), civil society support in the Arab region (Art. 13 UNCAC), or support to the elaboration of a Commentary to the Bangalore Principles of Judicial Conduct (Art. 11 UNCAC). 5. Opportunities, Challenges and Limitations The experiences the German UNCAC Project has made suggest that technical assistance make sometimes limited, but valuable contributions to the implementation of international anti-corruption instruments. UNCAC compliance reviews, e.g., are essential for many reasons: i) they offer a comprehensive and structured analysis of the anti-corruption framework of the respective country that not only helps countries to identify gaps in their legislative framework and its practical implementation but also to stick to their international obligations; ii) the multi-stakeholder process contributes to democratic and participatory governance reform processes; iii) the affiliation to national processes as well as the general principle of having a national organisation leading the whole process25 corresponds to important principles of the Paris Declaration on Aid Effectiveness (particularly the principles of alignment and ownership); iv) reviews offer an excellent entry point for all-embracing national reform processes and help identifying further technical assistance needs. Smaller initiatives like supporting the establishment of anonymous, electronic whistle-blowing systems help implementing a limited number of issues outlined in international instruments. Since whistle-blowing systems also serve the protection of those reporting of corrupt offences, they also – at least to a limited extent – contribute to the states’ duties to respect, protect and fulfil human rights.26 However, there 25 Lead organisations in Indonesia and Kenya were the Kenyan Anti-Corruption Commission (KACC) and the Indonesian Komisi Pemberantasan Korupsi (KPK). 26 This might be relevant, e.g., for the right to life, liberty and security or the prohibition of torture, c.f. Articles 6, 7, 9 ICCPR. 207 are also a number of challenges and limitations particularly with respect to technical assistance’s efforts to implement international anti-corruption instruments. 5.1. How to Measure Success of Anti-Corruption and Aid Effectiveness? For donors and technical assistance it is very difficult to measure success of their initiatives, particularly in the area of anti-corruption. Given the fact that measuring corruption itself is an extremely complex and difficult task, including large margins of error, the same is true for measuring donor success. Using UNCAC compliance reviews again as an example, it is – apart from the impacts mentioned above – difficult to establish their impact on contributing to a reduction of corruption or to more effective anti-corruption institutions, since this process is first and foremost an analytical process. It is thus not only of utmost importance to follow-up on the findings of the compliance review27 and to accompany the implementation,28 it might be important and necessary to develop new tools in this respect, also to legitimate donor efforts to their own population. 5.2. Cultural and Political Sensitive issue Second, technical assistance has to operate within concepts of international law. Thus, official development assistance is bound by the principles of the UN Charter and other instruments of international public law that, inter alia, contain the provision of non-interference into the internal affairs (c.f. Art. 2 par. 7 UN Charter). Donors must negotiate with governments of developing countries. During the negotiations, attention has to be paid so as not to infringing internal affairs of member states, not blaming them, cooperating with them while at the same time engaging in moral issues. Using UNCAC helps in this context, since support is offered to implement a complex international convention only, without being suspected of accusing the Government of being corrupt. Circumscribing the term corruption with transparency, integrity and/or accountability also provides an excellent entry point for doing anti-corruption work in partner countries in this context. It is often argued that some behaviour that is corrupt, is not necessarily considered corrupt in another country and western donors often try to import their values into 27 It should be noted also in this context that the establishment of effective mechanisms that review the implementation of conventions is key for success. See in this context also Peñailillo (2009). 28 If this is not done by the stakeholders, then the danger of window-dressing occurs. The Kenyan population, for instance, is tired of numerous so far often meaningless anti-corruption reports and action plans by the Government. Even though the multi-stakeholder approach yields some hope that the entire process obtains more credibility, the people want to see real change on the ground. 208 different cultures with different social systems. Here, too, the UNCAC provides a perfect tool to overcome some of these concerns. While it is perfectly true and essential to align anti-corruption efforts to the partner country’s needs thereby taking into account and analysing in detail the cultural specialties within the country, the UN- CAC provides universally agreed requirements most of our partner countries have agreed upon when ratifying the convention as well as during the negotiations. 5.3. Political Will A thorough genuine political will of donor and recipient governments is a conditio sine qua non to support partner countries in their efforts to implement conventions. Attention has to be paid to government approaches that try to please donors while not effectively implementing measures necessary to counter corruption. In some countries, governments have upon donor request established anti-corruption commissions as required in Article 6 UNCAC. However, while the establishment of anticorruption commissions might in some instances be an effective tool to fight corruption,29 in many instances governments do not provide these commissions with sufficient human and financial resources or with the necessary independence so that they are not capable of also investigating and prosecuting cases of high ranking politicians. In fact, harassments, intimidation and even imprisonment and sometimes torture are increasingly reported in a couple of countries especially when commissioners aim at investigating into cases involving high ranking officials. These and similar ‘window-dressing’ activities of governments have to be carefully monitored. At the same time, donors might also play an important role in pushing governments to anti-corruption reforms. In Yemen, e.g., the World Bank suspended parts of its support to the government due to bad governance and high levels of corruption. Also the US in not accepting Yemen for the US Millennium Challenge Account put some pressure on the government to introduce governance reforms. As a consequence, the government adopted a National Governance Reform Agenda including the establishment of an anti-corruption commission (the Supreme National Authority to Combat Corruption) that might meet the high expectations that have been put in the institution. Donors thus can play an important role in putting pressure on governments while at the same time being careful so as to not infringe into the internal affairs of their partner countries. 29 The Anti-Corruption Commissions in Hong-Kong, Singapore, partly also in Indonesia proofed to be successful. 209 5.4. Whole of Government, Mainstreaming Corruption, and New Modes of Delivery The whole of government approach is a constraint both within developing countries and within the organisational structures of donors. It is sometimes difficult to coordinate between the different resorts responsible for similar areas. In Germany, for example, more and more resorts are engaging in development efforts. Apart from the Ministry for Economic Cooperation and Development (BMZ), this is true for the Ministry of Foreign Affairs or the Ministries of Environmental Affairs. In addition, the Ministry of Justice is responsible for the implementation of UNCAC within Germany30 and sometimes it appears to be difficult to coordinate different views of the resorts engaged with similar issues. The same is true in partner countries where it happens to be difficult to ascertain the final official position out of different government representatives. It is not only concurring interests that might cause confusions, it might also be simple issues such as a lack of communication or transparency in certain operations. Fighting corruption clearly is an issue affecting all sectors. Thus it is a crosscutting issue that should be considered in all development operations. Incentives to integrate anti-corruption components within single development projects are not always sufficient and donors also are confronted with the difficulty that they can only preach what they practice themselves. Thus, it is equally important to establish internal procedures that aim at preventing corruption within its own structures. However, since it is almost impossible to completely eradicate corruption in large operational structures, it remains difficult to be too forthright on this issue.31 A remaining challenge is the approach of development cooperation to more frequently support partner countries via direct budget support – meaning to provide financial support and agree on certain parameters as well as on mutual accountability if countries fulfil certain good governance criteria, including control of corruption. Even though this approach of providing developing countries thorough ownership and direct responsibility appears to be promising, it also bears a huge risk of corruption. Hence, it is equally important to at the same time continue supporting countries in the establishment of transparent, integer and accountable institutions. 6. Conclusion Fighting corruption is of utmost importance for sustainable development since it has enormous negative effects on economic, social and political development. Making use of international or regional anti-corruption initiatives thereby is a useful approach for development cooperation since it provides de-politicised entry points to 30 Note, however, that Germany has not yet ratified the UNCAC. 31 C.f., e.g., the reputational loss the WB suffered after the adoption of the World Bank Governance and Anti-Corruption Strategy and the subsequent corruption scandal of the then President Wolfowitz. 210 tackle politically sensitive issues. While technical assistance can make some valuable contributions to the implementation of international instruments at different levels (e.g. improving the effectiveness of international instruments, supporting developing countries in their efforts to implement these instruments), technical assistance is also confronted with many limitations in effectively supporting the implementation of anti-corruption instruments. 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Zusammenfassung

In dieser aktuellen und interdisziplinären Analyse der internationalen Antikorruptionsregime werden mit Schwerpunkt Europa ausgewählte staatenübergreifende Bemühungen der letzten Jahre zur Eindämmung der Korruption einer kritischen Bestandsaufnahme unterzogen. Die Beiträge stammen aus der Politikwissenschaft, Rechtswissenschaft, Soziologie, Wirtschaftswissenschaft und von PraktikerInnen.

Der Band vereinigt sowohl qualitative als auch quantitative Analysen und berücksichtigt darüber hinaus kulturwissenschaftliche Fragestellungen im Rahmen seiner vier Teile: „The European Dimension“, „Political and Legal Instruments“, „Culture, Perceptions, and Experiences” sowie „Practitioners’ Perspectives”.

Mit Beiträgen von: Tanja A. Börzel, Donald Bowser, Ben Elers, Angelos Giannakopoulos, Åse B. Grødeland, Leslie Holmes, Georg Huber-Grabenwarter, Anja P. Jakobi, Anne Lugon-Moulin, Bryane Michael, Holger Moroff, Yasemin Pamuk, Diana Schmidt-Pfister, Gefion Schuler, Andreas Stahn, Dirk Tänzler, Michael H. Wiehen und Sebastian Wolf.