Phase 4 monitoring of the implementation of the Organisation for Economic Co-operation and Development's (OECD) anti-bribery convention will soon get under way. The fourth phase, driven by the working group on bribery (WGB), is currently in the planning stage – the WGB recently called for comment from interested organisations, institutions and parties on how the next round of monitoring could proceed more smoothly and efficiently.
The previous three phases each focused on a different aspect of the convention:
* Phase 1 evaluated the adequacy of a country's legislation to implement the convention;
* Phase 2 assessed whether a country is applying its legislation effectively;
* Phase 3 focused on enforcement of the laws implementing the convention and associated instruments;
* Phase 4 will focus on detection, enforcement, and corporate liability, and other major topics relevant to adequate implementation of the convention's obligations.
Transparency International (TI) has submitted comments for consideration. The organisation has called for a study into the methods used by convention countries to collect enforcement statistics – this would lead to a better comparison of their enforcement efforts. TI also mentioned that in the case of some convention countries, it is difficult to gain access to case information.
Studies in sectors that are prone to foreign bribery – such as the construction, defence, extractive and manufacturing sectors – would support detection and investigation efforts of law enforcement bodies.
TI recommended an analysis in all parties of the availability of sufficient resources to investigate and prosecute foreign bribery, using a common methodology, and an assessment of the levels of independence of enforcement bodies.
TI asked that the OECD WGB follow up on outstanding recommendations from the three previous review phases.
In the case of countries that continue to inadequately implement their OECD obligations and ignore OECD recommendations, TI suggested various measures, including making the findings of the WGB known to the public in those countries; promoting greater transparency, such as translating reports into the official language of the country in question; and discussing the findings in an open parliamentary session.
The organisation also suggested a name and shame tactic, where an easily accessible section on OECD’s website would feature “outstanding recommendations of each convention country from all review phases, indicating the date of the recommendation given, the text of the recommendation and the dates when the WGB already followed up on them”.
If the country continues to disregard its obligations, the WGB should define a point at which that country should be referred to the OECD council. If this does not work the OECD and WGB should call for the country’s withdrawal from the convention.
TI also commented on issues such as private sector and civil society engagement in the forthcoming round, saying, among other things, that the business sector and civil society should have equal access to the public consultations organised by the OECD WGB, and sit as observers at the meetings of the OECD WGB.
Also, representatives of both sides in bribe recipient countries should attend public consultations and OECD WGB meetings, where they could share their experiences on the effects of cross-border corruption so as to inform the work of the OECD WGB.
Access to information on these issues is just as important, and the WGB’s website should make all foreign bribery related information more accessible, says TI. Also, the OECD WGB should “regularly disclose information on recipients of foreign bribery”.
SA failing to effectively implement OECD convention
In October 2014 TI published its annual progress report, titled Exporting Corruption, on the implementation of the OECD anti-bribery convention. At the same time TI released individual reports for selected countries – Corruption Watch prepared the analysis of the South African report.
Earlier in the year, the OECD published its Phase 3 Report on Implementing the OECD Anti-bribery Convention in South Africa, which showed that South Africa has thus far failed in its implementation of the anti-bribery convention.
The reports concur that South Africa, in the seven years since it adopted the convention, has under-performed. Only 10 cases of foreign bribery have received attention from authorities, and none have been successfully prosecuted.
“For the anti-bribery convention to achieve a fundamental change in the way companies operate, we need a majority of leading exporters to be actively enforcing it, so that the other countries will be pressured to follow suit,” said TI chairperson José Ugaz in a statement.