Excerpts of the submissions made by Minister RO Lamola, MP, at the Eighth Session of the Conference of the States Parties to the United Nations Convention against Corruption, Abu Dhabi, UAE
A high level South African delegation is currently participating in the Eighth Session of the Conference of the States Parties to the United Nations Convention against Corruption (UNCAC) being held in Abu Dhabi.
At the Conference, the Minister of Justice and Correctional Services, Mr R Lamola, MP, stressed South Africa’s commitment to fight corruption and strengthen international cooperation and coordination in this regard. He also commented that corruption is the greatest obstacle to economic and social development the world over and the fight against this, calls for concerted efforts by all of us.
Herewith follows excerpts from his submission made on 18 December:
“Mr President, South Africa therefore remains unwavering in our commitment to the fight against corruption.
South Africa ratified the United Nations Convention Against Corruption (UNCAC) in 2004 and the Convention came into force in 2005. South Africa is furthermore responsible for conducting the reviews of other member countries and significant strides and progress have been made in this regard.
With 186 States Parties the Convention is unique - not only in its reach, but also for the scope of its provisions, with both preventive and punitive measures. It addresses the cross-border nature of corruption with provisions on international cooperation and on the return of the proceeds of corruption.
On Agenda Item 5 (pertaining to Asset Recovery) and Item 6 (International Cooperation), South Africa believes that international cooperation is essential for the successful recovery of assets that have been transferred to or hidden in foreign jurisdictions. At all material times, nation states cannot gather evidence without the co-operation and assistance of sister states.
There should be a voluntary willingness for states to move quickly to preserve money that might have been laundered. International cooperation is of critical importance.
As such Mutual Legal Assistance and extradition treaties are the critical instruments to fight transnational corruption. States have to be swift and timely to assist one another.
South Africa is consequently committed to bringing those guilty of corruption - and in particular offenders relating to state capture - to book. The South African government has already approached a number of countries for mutual legal assistance (MLA) and/or extradition agreements to have those suspected of state capture to face charges in South Africa.
In practice, it should not be possible for any country who states that it is serious about fighting corruption to reject Mutual Legal Assistance and/or extradition requests solely on the grounds of non-material technical or formal deficiencies.
South Africa is therefore concerned that there are some State parties who have mastered the art of delaying or refusing to ratify extradition treaties and MLAs – thus frustrating the very spirit and object of the treaty. Ultimately, these states run the risk of becoming safe havens of corruption.
South Africa’s legal framework on international cooperation in criminal matters is governed by the International Cooperation in Criminal Matters Act, 1996 (Act No. 75 of 1996) (ICCMA), and the Extradition Act, 1962 (Act No. 67 of 1962). We are able to provide the necessary assistance to other States on the basis of reciprocity and having due regard to the provisions of UNCAC and domestic law.
South Africa has a flexible approach to providing mutual legal assistance in that when dealing with incoming requests, dual criminality is not a strict requirement for executing incoming MLA requests. The South African Constitution and other relevant legislation are also taken into account in the consideration and execution of requests.
South Africa continues to conclude treaties on extradition and mutual legal assistance where necessary to facilitate and enhance international cooperation.
To date, South Africa has entered into bilateral extradition treaties with 18 countries and Agreements on Mutual Legal Assistance Agreements with 13 States.
To this end, we have recently concluded Mutual Legal Assistance and Extradition treaties with the state parties of UNCAC.
We do emphasise that state parties to UNCAC are not limited to only to the treaties for co-operation, by virtue of being signatories to this convention we are obliged to promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery.
We have negotiated treaties with a number of countries in this area of work and we are looking forward to finalising the necessary processes for operation in the near future.
The Director-General for Justice is the designated Central Authority in South Africa and to fast track, the execution of requests, a dedicated unit within the Department of Justice and Constitutional Development was established for processing and coordination.
The unit has improved the turn-around times for the processing of requests for extradition and mutual legal assistance.
In order to enhance national coordination and the execution of requests, South Africa has also established a committee on international cooperation comprising the officials from the central authority, the National Prosecuting Authority, INTERPOL and the Department of International Relations and Cooperation.
Combating corruption remains a major priority for the South African government due to its prevalence in both the government and private sector, as it is a strong constraint on growth and development.
As part of its endeavours in the fight against corruption, South Africa’s Special Investigating Unit investigates corruption, malpractice and maladministration in the State. The SIU’s Special Tribunal, appointed in March this year, is tasked with adjudicating civil processes aimed at recovering moneys syphoned off through corruption and other forms of illicit money flows.
Our Asset Forfeiture Unit, with the assistance of its law enforcement counterparts, has embarked on a program to identifying several focus areas with the view of extending its footprint in the fight against crime and corruption.
The Asset Forfeiture Unit has identified a number of priority focus areas based on priorities identified by the government. These areas include, amongst others, state capture matters and corruption.
South Africa firmly believes that the full and effective implementation of Chapter Five of the Convention pertaining to Asset Recovery remains a fundamental principle, which requires member states to extend to one another the widest possible measure of international cooperation.
Equally, the South African delegation maintains that the management, administration and utilisation of returned stolen assets is the sole responsibility of the requesting state, from where the assets were unlawfully stolen, and that in the circumstances, there can be no conditions imposed on such assets, as a matter of principle.
In the international domain, the tracing of illicit flows could pose dire circumstances where there is no immediate or delayed co-operation from the requested States.
In this regard, we urged States Parties to continue adhering to the obligation under Chapter IV of the Convention in order to foster international cooperation in criminal matters in accordance with articles 44 to 50 of this Convention. The articles in this regard state amongst others:
“Where appropriate and consistent with their domestic legal systems, States Parties shall consider assisting each other in investigations of and proceedings in civil and administrative matters relating to corruption.”
Appreciating the critical role of international cooperation in combating the scourge of corruption, we reiterated the call on member States to make every effort to intensify collaboration with each other to investigate, repatriate assets and to extradite fugitives.
The fight against crime and corruption has become a transnational phenomenon and cannot, therefore, be confined to national borders.
We should continue to work towards the enhancement of cooperation so that our law enforcement and anti-corruption agencies are able to access critical information required for monitoring financial flows, investigations, prosecutions, and the pursuing of proceeds of crime.
As parties to the United Nations Convention Against Corruption, we should negate and eradicate impunity by working together to ensure that we are not co-perpetrators of crimes ourselves, it is our duty to ensure the criminals do not feel safe in our beloved countries.
In conclusion, the South African delegation called on all States to make every effort to intensify collaboration with each other to repatriate assets and extradite suspects, if the citizens of the world are to benefit from the instruments such as the UNCAC.
A failure to do so will go against our commitments and undermines our collective efforts to effectively address this scourge and reduce inequality.
Various jurisdictions have illustrated a tangible appreciation towards South Africa’s constitutional commitment to maintain the rule of law.
We appeal to all those who we have approached and may still be approaching to cooperate and assist us. It would be a travesty of justice if States decide to stand-by and watch as our stolen assets are laundered through their financial systems whilst our economy is on a brink of collapse with dire consequences for our population.
The implications, of a lack of action, will ultimately destroy the future of pending generations.”
Enquiries:
Chrispin Phiri
Cell: 081 781 2261
E-mail: CPhiri@justice.gov.za
