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LOCAL GOVERNMENT AND ADMINISTRATION SELECT COMMITTEE
31 May 2005
AFRICAN UNION ANTI-CORRUPTION ACTIVITIES: DEPARTMENT OF PUBLIC SERVICE AND ADMINISTRATION BRIEFING
Documents handed out:
African Union Convention on Preventing and Combating Corruption
Summary: African Union Convention on Preventing and Combating Corruption
The Department of Public Service and Administration briefed the Committee on South Africa’s role in supporting the African Union (AU) Convention on Preventing and Combating Corruption. This formed part of its drive to comply with global anti-corruption standards. Key Convention features included participation of media and civil society, collaboration amongst member states, and international co-operation. Ratification would signal political will in Africa. Nine countries had ratified the Convention. Fifteen countries’ adoption was required for the Convention to come into force.
Reservations were noted on Articles 13 (1)(d), 15(2), 21. A declaration was proposed on Article 25(3). The Committee agreed to the proposed reservations and would submit reports indicating reservations pointed out by the Department. The Committee would put this on the agenda of the Council. No debate would be necessary and one Member would make a statement on the Committee’s behalf.
Adv I Bodasing (Department International Anti-Corruption and Co- operation Portfolio specialist) The Department of Public Service and Administration briefed the Committee on South Africa’s role in supporting the African Union (AU) Convention on Preventing and Combating Corruption. This formed part of its drive to comply with global anti-corruption standards.
In December 2003, South Africa had signed the United Nations (UN) Convention against Corruption. Last year it had been among the first 20 countries to ratify this. In 2004, South Africa had applied to become part of a working group on bribery. The Committee on the AU Convention stemmed from a decision in 1998 by African heads of government to draft a convention to help combat corruption. This process had been considered in the SA National Assembly.
South Africa’s participation in theConvention process had been significant, as had its promotion of good governance principles, both on the African continent and globally. The Department of Foreign Affairs would assist in the establishment of a database of anti-corruption foreign ministers and experts who could share information. The current poor communication would improve when the AU Convention came into force.
Corruption undermined accountability and transparency in the management of public affairs. The objective of the Convention was to establish the necessary conditions to remedy the situation. Key features included participation of media and civil society, collaboration amongst member states, and international co-operation. Ratification would signal political will in Africa. Nine countries had ratified the Convention. Fifteen countries’ adoption was required for the Convention to come into force.
Mr Bodasing observed that in negotiating multilateral agreements, certain compromises had to be made. To get around the domestic provisions, it had been proposed that reservations needed to be made in terms of Article 24. These reservations related to Article 13(1)(d). South Africa did not extend jurisdiction when the offence, although committed outside the state’s jurisdiction, was considered to affected its own vital interests.
Reservation was also expressed on Article 15(2) regarding extradition. Offences covered by the Convention could not, in terms of domestic law on extradition, unconditionally be deemed extraditable offences. In terms of Extradition Act of 1962, an offence could only be considered extraditable if it was an offence in both countries, and the sentence for the offence would be a minimum of six months imprisonment.
Referring to Article 20, it was proposed that the Director-General of Justice be designated the national authority for the purposes of this Convention.
Article 21 dealing with the relationship with other agreements, slightly contradicted South Africa’s ratifciation of the SADC protocol. This also had an article stating that the provisions of the SADC protocol would supercede any other agreement.
It was proposed that a declaration be made on Article 25 (3). The current wording was possibly a drafting error because it allowed for two-thirds of AU member states to effect an amendment. It could be interpreted to mean an amendment that could only be effected by a two-thirds majority of states party to the Convention. This was in order to avoid a situation where non-member states could participate in the amendment process.
Mr R Kitshoff (Department Anti-Corruption Unit - Public Sector) commented on the significance of the Convention. Ratification would reflect political will on the continent to change the approach to combating and preventing corruption. Globalisation has brought with it increasing interdependence. There was a need for a Convention of this nature to address offences that had a cross-border aspect.
Mr J Le Roux (DA) drew attention to Article 10 (b) regarding the principle of transparency into funding of political parties. He asked how the declaring of donor funds would be handled in order to make it transparent. He suggested that a declaration be made.
Mr Kitshoff replied that there was no need to introduce a reservation. When Cabinet had considered the article, the stated aim was to proscribe the use of funds and incorporate the principle of transparency into funding.
Mr A Manyosi (ANC) asked whether political parties not in power were excluded from participation in the Convention.
Adv Bodasing replied that it was for member states only and included heads of state and government.
Mr Mokoena (ANC) asked how many countries had signed the Convention. Adv Bodasing replied that while about 35 countries had signed, only nine countries had ratified the Convention. Fifteen countries’ signatures were needed for the Convention to come into force.
Mr A Manyosi (ANC) asked the reasons for the delays in other countries ratifying the agreement. Adv Bodasing replied that there were a variety of reasons. Among these was the prioritisation of issues and political will. There was a need to ensure that the domestic regulatory framework met the standards of the Convention. The mandate of such a Convention to satisfy regulations was a slow process.
Mr Mokoena (ANC) asked which countries had ratified the Convention. Mr Kitshoff replied that they did not have that information available but would email the list to the Committee Clerk.
Mr Mokoena (ANC) observed that the briefing had been very clear. His only problem was the monitoring mechanism. It was easy to sign an agreement but not so easy to implement it. Would there be an effective monitoring mechanism in place to ensure that the Convention would be effective?
Mr Kitshoff replied that once the Board (as referred to in Article 22) was functioning, it would not only benefit states. It would look at an exchange of information and support in Africa and the needs of various countries, and assist them to close gaps identified. So the Board, although set up by states, would function for the benefit of the whole of Africa.
Mr Mokoena (ANC) commented that while a member state might ratify the Convention, it could be the first to violate it. In such a case, would the Board have power to enforce the Convention. An example was Morocco, which did not regard itself as part of the African Union and did not participate in agreements.
Mr Kitshoff replied that the Board was an advisory body that provided support but it did not have a policing role. Other structures and channels within the African Union could be used to exert pressure on countries to comply with the Convention.
Mr Moseki (ANC) asked, regarding Article 10 on political party funding, if there was a successful working model in any other African country.
Adv Bodasing replied that there was no well-researched model on the African continent. There had been comparative studies done elsewhere and the American model had been promoted as very progressive and workable.
Mr Le Roux (DA) asked if Article 10 was accepted, would it mean that in future South Africa would do its best to ensure transparency about the funding of political parties.
Adv Bodasing replied that it would not be blanket acceptance but would be incorporated within the paradigm of South Africa’s domestic framework. Transparency on public funding was there already. There would have to be a legislative process for the adoption of a national policy on the private funding of political parties. Even that could be further restricted based on the promotion of the "Access to Information Act". Transparency would be within the domestic framework.
Mr Mokoena noted that the role of the media was important and they should be allowed to participate.
Mr Kitshoff said that the Convention promoted that the states engage the media, ensure its participation and provide access to information. Each country had to act within the confines of its domestic laws. As these varied from state to state, negotiating a convention was a complex issue. The articles dealing with media and civil society were very aspirational. South Africa had a proud history of media participation and involvement of civil society in the anti-corruption drive. He used as an example the Second National Anti-Corruption Summit held in March. Here many sectors of society were invited to participate in formulating a basis for the national anti-corruption programme.
Mr Z Ntuli (ANC) referred to Article 10. If illegal funding was suspected, would it be investigated and would transparency be allowed? If legal funding was provided by a donor who wished to remain anonymous, would this be acceptable?
Adv Bodasing observed that many democratic countries regulated private donations to political parties through distinct and dedicated legislation. The right to access information was not a right that existed in the abstract. In South African law, the enquiry had to be factual and within the paradigm of the Act. Currently there are no illegal donations per se.
The common argument was that a lack of transparency would allow or infer a degree of undue influence by a private funder on a political party. The public should know this in order to make informed decisions. There was nothing in the current framework that precluded a person making an application within the "Access to Information Act" if they were able to show that they were acting in the public interest. There was nothing to preclude the granting of that information. At present, there was no dedicated legislation to deal with this. The current framework did not necessarily contradict what was contained in the Convention and did not preclude South Africa from becoming a State Party. There was a move to develop laws to prevent illegal funding.
Mr Mokoena asked if this meant that donations or funding to political parties were transparent. Adv Bodasing replied that public donations were transparent but private donations were not.
Mr Z Ntuli (ANC) asked how the transfer of funds, or the proceeds of illicit transactions, would be detected? Adv Bodasing pointed out that there were various agencies dedicated to tracking the use of illicit money. Where money laundering was concerned, international co-operation was imperative. There were structures in place to facilitate this. The Convention addressed the issue of money laundering and the return of illicit funds to the country of origin.
Mr Mokoena (ANC) observed that the briefing had been clear and he did not think a second briefing would be necessary. [Spoke in Xhosa]. He proposed the recommendations be passed.
Mr J Le Roux (DA) felt it was not necessary to bring the presenters back, but thought it would be advisable for Members to consult with their Parties.
Mr Z Ntuli (ANC), Mr Le Roux (ANC) and Mr A Manyosi (ANC) proposed the adoption. Mr D Worth (DA) seconded the motion.
Mr K Mokoena noted that the Committee had agreed to the proposed reservations and would submit reports indicating reservations pointed out by the Department. The Committee would put this on the agenda of the Council. No debate would be necessary and one Member would make a statement on the Committee’s behalf.
The meeting was adjourned.
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