Corruption is generally defined as the abuse of entrusted power for private gain. It can take many forms that vary in degree, ranging from the minor use of influence, to institutionalised bribery. The Organisation for Economic Co-operation and Development (OECD) notes that corruption can harm democratic institutions, undermine attempts by citizens to achieve higher levels of economic, social and environmental welfare, and impede efforts to reduce poverty. As a result, it has created a full chapter on the topic in its Guidelines for Multinational Corporations (MNCs), to remind enterprises that they have an important role to play in combating these practices.
The UN Guiding Principles (UNGPs) recognise that corruption can undermine access to remedy for victims of human rights abuse. Commentary Principle 25 clarifies that States should ensure that “Procedures for the provision of remedy should be impartial, protected from corruption and free from political or other attempts to influence the outcome”.
Businesses may directly and indirectly adversely impact human rights through corruption in a number of ways. For example, the supply of counterfeit or expired drugs adversely impacts the right to health of vulnerable people (Fletcher and Herrmann; 2012). In 2017, the UK Serious Fraud Office confirmed its investigation of claims that British American Tobacco (BAT) was involved in bribery and corruption in East Africa to obstruct the passing and implementation of tobacco control legislation that helped save millions of lives in the Global North. In Thailand, an International Labour Office report on the country’s fishing sector documented allegations that corruption and complicity by government officials has enabled a human trafficking gang to routinely torture and execute migrant workers who attempt to flee.+ Read more
Corporate capture is another important aspect of the link between corruption, business, and human rights. Corporate capture is defined as “the undue influence that corporations exert over national and international public institutions, manipulating them to act according to their priorities, at the expense of the public interest and the integrity of the systems required to respect, protect and fulfil human rights, and safeguard the environment”. A report by ESCR-Net notes separate requests from extractive sector companies that the UK Government support their position in litigation before appellate courts in the United States over alleged extraterritorial human rights abuses. Notably, released emails show that one of the UK Government’s concerns about taking a position is that such intervention would contravene the State’s obligations with respect to the UN Guiding Principles. Ultimately, the UK Government did submit opinions in support of the two companies. The rulings in these cases set important precedents on the ability of victims to seek access to remedy for extraterritorial corporate-related human right abuse.
Therefore, the fight against corruption is central to the struggle for human rights, as a whole, and not only in a business and human rights context. [See e.g. International Council on Human Rights Policy, Corruption and Human Rights: Making the Connection, 2009].
Addressing corruption is an important measure in supporting the implementation of the 2030 Agenda for Sustainable Development and its goals. SDG targets 16.5 and 16.6, in conjunction with the Addis Ababa Agenda for Action, call for a “substantial” reduction of corruption and bribery in all their forms and commit states to increase the transparency and accountability of all institutions. The achievement of these targets is important as transparency and accountability are enablers of the successful implementation of all other SDGs. Through efforts that aim to reduce corruption and bribery, companies can also contribute to human rights as well as the full range of SDGs that are dependent on sufficient funding for their achievement.
Addressing corruption is also an essential step in achieving gender parity, as corruption disproportionately affects vulnerable populations and hits the poor the hardest, especially women, who represent a higher share of the world’s poor. (UNODC).
States are implementing anti-corruption efforts as a means to promote responsible business. Initiatives to eliminate corruption include the Foreign Corrupt Practices Act (FCPA) in the United States, and the United Kingdom’s Bribery Act 2010 to criminalise corruption including for acts of corruption abroad. Examples of companies that the U.S. Securities and Exchange Commission has brought enforcement actions against for FCPA violations include: Teva Pharmaceutical, which agreed to pay $519 million to settle civil and criminal charges that it violated the FCPA by paying bribes to foreign officials in Russia, Ukraine, and Mexico; Halliburton, which paid $29.2 million to settle charges for falsifying accounting records as part of the efforts to secure lucrative oilfield services contracts in Angola; and SQM, a Chilean chemical and mining company, which paid more than $30 million to resolve parallel civil and criminal cases finding that it violated the FCPA by making improper payments to Chilean political figures and others. (SEC website).
The Publish What You Pay Coalition and the Extractive Industries Transparency Initiative (EITI) aim to promote and open and accountable extractive sector, so as to minimise corruption. Countries that sign up to EITI must publish what they received from extractive companies, and extractive companies within their jurisdiction must publish what they pay. In so doing, citizens are empowered to hold their governments accountable for public revenue, and civil society organizations can assess whether spending is going towards priority development areas. States such as Canada and Norway have implemented laws, namely the Extractive Sector Transparency Measures Act, and Regulations on reporting and reconciliation of cash flows from petroleum activities, respectively, that require compliance with EITI cash flow reporting standards. Furthermore, Principle 10 of the UN Global Compact on Anti-Corruption urges businesses to “work against corruption in all its forms, including extortion and bribery”.
The GRI has published ‘Strengthening business accountability in the National Action Plans on Business and Human Rights: Policy recommendations on transparency (November 2019)‘
16) Peace, Justice and Strong Institutions
What National Action Plans say on Corruption
Based on preliminary mapping, Belgium has identified “the fight against corruption” as one among seven principal tasks that the NAP will engage with.
Action point 2
Prepare a brochure on grievance mechanisms related to public authority
Elaborer une brochure sur les mécanismes de réparation liés à l’autorité publique
This point briefly presents the issue of corruption in regards to reparation procedures, which “must be neutral, protect against corruption and be free from any attempt, political or other, to influence its outcome.”
Action point 3
Recommendations for improving access to a judicial grievance mechanism
Formulation de recommandations en vue d’améliorer l’accès à un mécanisme de reparation judiciaire
This point mentions that reparation procedures “must be neutral, protect against corruption and be free from any attempt, political or other, to influence its outcome.”
Action point 4
Promote existing qualitative initiatives on human rights and social responsibility
Promouvoir les initiatives qualitatives existantes relatives aux droits de l’Homme et à la responsabilité sociétale
The federal government explains that the Belgian National Contact Point will organize a seminar targeting the fight against corruption for SMEs with the provision of a practical toolbox prepared in partnership with the Belgian Confederation of Enterprises and the International Chamber of Commerce and the Ministry of Justice.
Action point 16
Promote social reporting, including human rights
Promouvoir les rapports sociétaux, droits de l’Homme inclus
The NAP describes that given the adoption of the European directive 2014/95/EU, major companies, in their annual reporting, are required to include a non-financial statement containing information on the issues of environment, social and human resources, respect for human rights as well as the fight against corruption and bribery.
Action point 19
Promote best practice of SMEs that adopt responsible supply chain management, especially through the « CSR Compass » tool
Promouvoir les bonnes pratiques des PME qui adoptent une gestion de la chaine d’approvisionnement responsable, notamment grâce à l’outil « CSR Compass »
This point briefly presents corruption as one among several issues that the CSR Compass covers.
Action point 27
Educate Belgian companies on the problem of corruption and strengthen Belgian commitments on this theme
Sensibiliser les entreprises belges à la problématique de la corruption et renforcement des engagements belges sur cette thématique
This is the main action point covering corruption. As Belgium has ratified all related anti-corruption conventions, the federal government explains that the Belgian State has several legal obligations vis-à-vis the prevention and repression of corruption. In the framework of the NAP, engagements will be as followed:
- Systematic reference in international and bilateral fora of Belgium’s ratification of the international anti-corruption conventions.
- Coordination by the Ministry of Foreign Affairs on the different ministerial techniques involved in the fight against corruption to respond to the periodic evaluations of international organizations in compliance and effectiveness of internal anti-corruption measures.
- Follow-up and presence at the working groups of international organizations on anti-corruption issues and development of best practice.
- Awareness-raising of Belgian companies on the problem of corruption (Brochure of the Belgian Federal Authorities (NCP, Ministry of Economy and Ministry of Justice) with the Confederation of Belgian Enterprises and the International Chamber of Commerce on the prevention of corruption in companies, the Ministry of Justice: capacity training of investigation and judicial authorities in the field of corruption).
- Awareness-raising of Belgian companies abroad to the risk of corruption through the network of Belgian diplomacy through instruction emails sent out to the diplomatic posts in order for the 1999 OECD Convention and the Guide to best practice to reach Belgian companies that are active within their jurisdiction.
Chile’s NAP makes no explicit reference to corruption in its main text.
`The Colombia NAP does not explicitly address this issue’
Existing plans, initiatives and strategies [page 8]
“The Czech Republic has long set great store by the topic of human rights both generally and in connection with the activities of businesses. Human rights in a business context is covered, for example, by the following strategy documents: …
Criminal liability of legal persons in the field of human rights [page 12]
“Current state of play:
- The Czech Republic is party to a number of international treaties on legal assistance and on the prosecution of various types of international criminal activity, including the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.”
External policy [page 28]
“Current state of play:
- The Czech Republic has been a party to the OECD Anti-Bribery Convention since 2000, in accordance with which law enforcement agencies prosecute foreign corruption where the perpetrator is a Czech citizen.”
- Provide businesses abroad – through embassies – with advice and assistance to help them navigate the local environment, including the issues of the rule of law, human rights and corruption risks.
Coordinator: Ministry of Foreign Affairs
Deadline: Running, with an assessment in 2020″
Voluntary non-financial reporting [page 38]
“… The application of internationally acknowledged standards for non-financial reporting is recommended. These include: …
Global Reporting Initiative, an independent international organisation specialising in the reporting of the impacts of business operations in the fields of human rights, the environment and corruption”
2. The state duty to protect human rights
2.3 Actions taken
Protection of human rights through state regulation and policy [page 12]
“Denmark works to ensure that companies involved in Danish development cooperation respect human rights and act responsibly within the areas of worker’s rights, human rights, environment and anti-corruption within the framework of ILO conventions, UN Global Compact, the OECD guidelines for multinational enterprises and work towards implementation of the UN Guiding Principles on Business and Human Rights.” …
Companies owned or controlled by the state [page 13]
“When Danida signs contracts with companies, it is a requirement that companies live up to Danida’s anti-corruption policy and to the UN Global Compact. A description of the applicant’s approach to quality assurance and how it will comply with Danida’s anti-corruption code of conduct and the principles of the UN Global Compact during implementation are requested from pre-qualified tenderers and form part of the tender evaluation.” …
Providing effective guidance on how to respect human rights [page 14]
“The revised Global Compact Self-Assessment Tool works as a self-Assessment guide to a CSR due diligence going through a questionnaire covering aspects of human rights, worker’s rights, environment and anti-corruption and including a template for a follow-up action plan.” …
Appendix 1, GP 3c
Initiatives taken or planned as a dedicated measure to implement the UNGPs (after the UN ratification of the Guiding Principles) [page 27]
“Companies involved under Danida Business Partnerships are required and guided to undertake a CSR due diligence covering human rights, workers’ rights, environment and anti-corruption and to follow-up with an action plan in order to mitigate adverse impacts of business activities on employees and society at large.”
Appendix 1, GP 4
Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles) [page 28]
“As part of the approval process, Danida Business Finance analyses potential human rights related risks including local legislation and policies and other CSR issues. Access to finance is based on buyer’s and exporter’s compliance with ILO principles on human and workers’ rights. When Danida signs contracts with companies, it is a requirement that companies live up to Danida’s anti-corruption policy and to the UN Global Compact. A description of the applicant’s approach to quality assurance and how it will comply with Danida’s anti-corruption code of conduct and the principles of the UN Global Compact during implementation are requested from pre-qualified tenderers and form part of the tender evaluation.”
1 The state obligation to protect human rights
1.3 Activities in the EU [page 16]
“On 18 April 2013, the European Commission made a proposal to amend the accounting directive for the disclosure of so-called non-financial information of certain large companies.
The proposal shall be applied to companies of significant public interest with more than 500 employees on average on the account closing date. According to the proposal, such companies should include in their annual report a declaration stating material data related to the environment, social affairs, employees, human rights, and the prevention of corruption and bribery.”
4 Access of victims of human rights violations to legal remedies [page 30]
“Finland cooperates in various ways with human rights defenders and non-governmental organisations exposing corruption. Mainly within the framework of EU cooperation, Finnish representatives are involved in the monitoring of legal processes on a case-by-case basis when monitoring is believed to have a positive impact on the protection of the rule of law.”
I- The State’s Obligation to Protect Human Rights
The National Framework
10. The Reinforcement of Legislation [page 23]
… France also played a key role in developing transparency obligations for companies at the European level. It was the main supporter of the draft directive on non-financial reporting obligations, published on 22 October 2014, which requires large European listed companies to publish reports on their social, environmental, human rights and corruption policies. France encouraged the European Commission to take an ambitious approach when adopting the guidelines discussed in the directive. The directive is currently in the final stages of being transposed into French law. This will reinforce existing non-financial reporting requirements for companies …
11. The Inter-Ministerial Exemplary Administration Action Plan and the National Action Plan for Sustainable Public Procurement
Public Procurement Policy [page 25]
The new legal framework for public procurement gives purchasers several ways of addressing social and environmental impacts. Having transposed Article 57 of Directive 2014/24/EU of 26 February 2014 on public procurement, French law now states that public contracts may not be awarded to economic operators that have been found guilty of fraud, corruption or the trafficking or exploitation of human beings (Article 45 of Ordinance 2015-899).
The Extractive Sector [page 34]
… France helps monitor and finance the implementation of the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas. This document is an international reference in the field of good practices for businesses seeking to identify and manage non-financial risks in their mineral supply chains (… corruption, etc.).
II- Businesses’ Responsibility to Respect Human Rights
3. Risk Analysis and Impact Assessment
Existing Tools and Responsible Practices – At the European level [page 42]
- The Business Anti-Corruption Portal for recruitment agencies, oil and gas industries and ICT.
5. Employee Representatives [pg. 43]
… A number of different laws contain provisions on whistleblowers: Article L 1161-1 of the Labour Code applies to corruption;
III – Access to Remedy
1. Judicial Mechanisms – At the National Level
The Jurisdiction of French Courts to Hear Criminal Matters [page 49]
Generally speaking, unless otherwise stipulated in legislation, companies and legal entities are liable for the criminal offences they commit, provided that these offences can be attributed to one of the company’s “organs” or representatives, and the offences were committed on their behalf.
More specifically, French legislation is strict in combating human rights violations by legal entities. Under French law, it is a criminal offence for companies to engage in activities that breach … equality laws (… corruption) …
1.6 Whistleblower Rights [page 53]
The Act 2016-1691 of 9 December 2016 on transparency, fighting corruption and modernizing the economy replaced earlier sector-specific provisions on whistleblowers. Under the new Act, a single framework was created to protect whistleblowers who now share a common status regardless of the field concerned.
There is no mention of corruption in the Business and Human Rights Chapter of the Georgian Human Rights NAP.
4.1 Access to justice and the courts for injured parties
Measures [page 38]
“The IRZ Foundation established by the Federal Government will include in its consultancy programmes advice for partner states on the areas of procedural and substantive law with a significant bearing on business and human rights, focusing on the need to ensure access to justice. At the Fifth International Conference of the Parliamentary Committees on Legal Affairs of IRZ partner states, held in October 2016, issues of CSR and anti-corruption efforts were among the subjects discussed under the Conference theme of “Politics, business and human rights”.”
Section 2: Current legislative and Regulatory Framework
Anti-Corruption [page 13]
“In recent years, United Nations and regional organisations have increasingly recognised the negative impacts of corruption on the enjoyment of human rights. Moreover, the treaty bodies and special procedures of the united Nations human rights system have regularly identified corruption as a critical factor contributing to the failure of States to satisfy their human rights obligations.
The most recent peer review of Ireland’s implementation of the OECD anti-Bribery Convention made a number of specific recommendations around awareness raising and reporting. Since that report, the Government has introduced the Protected Disclosures Act 2014 which provides a robust statutory framework within which workers can raise concerns regarding potential wrongdoing in the workplace. Ireland will continue to follow up the recommendations of the report to ensure that we fulfil our Convention commitments.”
Supply Chain [page 15]
“Exploitation or corruption along the supply chain can have major negative reputational impacts for companies and States.”
Non-financial reporting [page 15]
“The EU Directive on disclosure of non-financial and diversity information (2014/95/EU) 9 entered into force in December 2014. Iit requires certain companies known as ‘public interest entities’ to include a declaration in their annual management report containing information stating material data related to the environment, social affairs, human rights, and prevention of corruption. This Directive will shortly be transposed into Irish law.”
Section 3: Actions
II. Initial priorities for the Business and Human Rights Implementation Group [page 18-19]
“ii. Ensure that relevant public servants are made aware of their obligation to report suspected cases of bribery under the OECD Convention on Foreign Bribery.
xii. Create a fact sheet on the OECD Anti-Bribery Convention, the criminal offences in Irish law on bribery, the reporting systems in place for reporting suspicions of foreign corruption and the protections provided by the Protected Disclosures Act to be distributed by Enterprise Ireland to all Irish companies engaged in trade missions.”
IV. Italian ongoing activities and future commitments
Administrative liability of companies
“Furthermore to enhance the tool, a targeted collaboration between the Antitrust Authority and the National Anti-Corruption Authority has made it possible to increase the guarantee of the level of protection of human rights by businesses by configuring an additional tool of the business rating. With respect to this tool, ruled between June and August 2020, more than 200,000 applications were submitted by Italian businesses for recognition of the standard.” (p. 17)
“In addition, ANAC is working with other stakeholders in the project “Measuring the risk of corruption at territorial level and promoting transparency” (funded by the National Operational Programme Governance and Institutional Capacity 2014-2020 – ERDF, ASSE 3 – Specific Objective 3.1 Action 3.1.4), to identify quantitative indicators of the effectiveness of anti-corruption measures implemented by the administrations (so-called contrast indicators). The project also intends to create inter-institutional collaboration networks to 50 guarantee transparency in every sector of the Public Administration. The intent is to raise awareness of the private sector, academia and civil society on the need to overcome the current approach, based on exclusively subjective corruption indicators, and to promote a further approach to measuring corruption, based on reliable data in line with the principle of “leading by example”. As suggested by the OECD “investing in improving data quality to enhance risk assessments can provide a context for organizations to address broader issues along the value chain, improving the use of data within decision-making processes” (OECD, 2019).” (p. 49)
Fight against corruption
“The Italian legal framework on anti-corruption has been strengthened by Law No. 3/2019 (“Measures to combat crimes against the public administration, as well as on prescription and transparency of political parties and movements”), which consolidates a process regulated by Law No. 190/2012 and Law No. 69/2015 (strengthening the anti-corruption system). This most recent legislative measure is an important step towards a more comprehensive anti-corruption regime, in particular with regard to the fight against corruption in the public sector. Its main features are as follows: – the law introduces a dual approach: it strengthens the prosecution and (criminal) sanctioning of the act of corruption as well as the (administrative) prevention of the act itself in the public and private sector; – it encourages coordination between the public institutions involved; – it promotes a multi-stakeholder approach, calling on the private sector to play an active role in preventing corruption; – it demonstrates the relevance of the impact of multilateral conventions, recommendations and standards developed in the relevant forums (G20, OECD, Council of Europe), against which there is now an important alignment of the national anti-corruption system. In Italy Whistleblowing was introduced by the anti-corruption law (Law No. 190 of 6 November 2012, “Provisions for the prevention and repression of corruption and illegality in public administration”), adopted in compliance with recommendations and conventional obligations emanating from the UN, OECD, Council of Europe and European Union. This law provides for a system of enhanced protection for public employees who report unlawful conducts. Law No. 179 of 30 November 2017 strengthened the pre-existing whistleblower protection for public employees and partially extended the same protection to the private sector. With regard to the public sector, the law provides that a public employee who reports illegal or unethical conduct in the public interest cannot be retaliated against through sanctions, dismissal, demotion, transfer to other offices or other measures that have a negative effect on his/her working conditions. The protection is guaranteed to: employees of public administrations; employees of public economic entities; employees of private law entities subject to public control; employees and collaborators of private companies that provide goods, works or services to the public administration. Employees can report a violation : – to the person responsible for the prevention of corruption and transparency, – the National Anti-Corruption Authority (ANAC), and – to the judicial or accounting authority. The law covers misconduct and ethical errors, including (but not limited to): criminal conduct; violations of codes of conduct; mismanagement of public resources; nepotism; 51 accounting irregularities; violations of environmental and occupational safety regulations, etc. The protection entails, albeit within certain limits, the confidentiality of the whistleblower’s identity. The main protection mechanisms also include: the reversal of the burden of proof on retaliation on the administration, the reinstatement of the employee whose dismissal has been found to be retaliatory, and a financial penalty against the author of the retaliatory act or conduct ranging from € 5,000 to €30,000 imposed by ANAC. A desk service is available to whistleblowers who report cases of unlawful conduct in their workplace. The reports are acquired through a dedicated software, which guarantees confidentiality, security and reliability of whistleblowers. ANAC has made the computer application used for the acquisition and management of reports of wrongdoing by employees (“Whistleblower” software) available for re-use by administrations and companies with a European Union Public License (EUPL), which allows free use without further authorization from ANAC. Focusing on the private sector, the law provides some mandatory whistleblowing requirements for those companies that have chosen (or choose) to implement a “231 Model”. In particular, companies must provide communication channels that allow the submission of reports based on precise and factual elements connected with crimes as listed in Legislative Decree No. 231/2001. These communication channels must guarantee the confidentiality of the whistleblower in the management of the report; in addition, at least one alternative reporting channel must be provided which guarantees – using ad hoc software – the confidentiality of the whistleblower’s identity; the 231 model must also prohibit acts of retaliation, direct or indirect discriminatory actions against the whistleblower for reasons connected to the report/alert. Sanctions must be introduced in the disciplinary system adopted with the 231 model, both for those who violate the whistleblower protection measures and for the whistleblowers themselves who make malicious or seriously negligent reports that turn out to be unfounded; discriminatory measures may be reported to the Labour Inspectorate and to the competent trade union organizations. In addition, discriminatory dismissals, job changes and any discriminatory measures taken against the whistleblower will be void unless the company can demonstrate that they are in no way related to the whistleblowing activity. EU Directive 2019/1937, which regulates the “protection of persons who report breaches of Union law”, is currently being transposed in Italy, introducing common rules aimed at ensuring the protection of employees who report wrongdoing or breaches (“Whistleblowers”) in the Member States’ legal systems. It should be noted that some large Italian companies, announcing a policy of “zero tolerance” towards fraud and corruption, have been pioneers in this field, having created protected channels of reporting with a guarantee of anonymity even before the entry into force of the above-mentioned law. With the support of Transparency International – Italy, they have recently voluntarily adopted an online whistleblowing platform that is more advanced than the tools currently in use and that conforms to the highest standards of confidentiality” (p. 50)
Internationalization of companies
“Formal adherence to the principles of the UN Global Compact such as those relating to respect for human rights, workers, environmental protection and the fight against corruption, is a necessary requirement not only for sustainable economic growth, but also for the affirmation of democratic and participatory principles and the elimination of discrimination and inequality” (p. 55)
ANNEX 1 – Accountability Grid and Assessment Tools for the Implementation of the NAP
“35. continuing the promotion and protection of human rights, with a proactive role of the Inter-ministerial Committee for Human Rights, in correlation with the priority lines introduced in the framework of the PNRR and the SNSVS, including – among others – issues such as anticorruption, non-financial information disclosure , supply chain, environmental issues, decent work and non-discrimination in favour of competing companies in public calls for tender and within contracts stipulated with companies for the purchase of goods and services, with particular regard to (i) Italian companies operating abroad; (ii) Italian companies using foreign suppliers; (iii) foreign companies” (p. 66)
Chapter 2. Action Plan
2. Areas of the NAP
(2) Measures of the Government as an Actor regarding State Duty to Protect Human Rights
A. Public Procurement
(Future measures planned）
- Continue to promote measures to exclude organized crime groups from public works, etc in accordance with the Initiative on Exclusion of Organized Crime Groups from Public Works, etc. (Agreement by the Working Team on Comprehensive Measures, Including the Control of Organized Crime Groups dated December 4, 2009). [All Ministries]
CHAPTER TWO: SITUATIONAL ANALYSIS AND THEMATIC AREAS OF FOCUS
2.4 Revenue Transparency [Page 9-10]
Tax justice and the regulation of financial behaviour of companies can no longer be treated in isolation from the corporate responsibility to respect human rights, outlined in the UNGPs and business commitments to support the SDGs. Indeed, the SDGs include specific targets on reducing illicit financial flows (IFFs), returning stolen assets, reduction of corruption, and strengthening domestic resource mobilisation. In this respect, Goal 16 on the promotion of peaceful and inclusive societies includes specific targets on reducing illicit financial flows (target 16.4) [and] corruption (target 16.5). […]
The 2017 amendments to the Proceeds of Crime and Anti-Money Laundering Act, 2009 establish the Financial Reporting Centre (FRC), an independent financial intelligence agency charged with combating money laundering and identifying proceeds of crime including tax evasion. The Ethics and Anti-Corruption Commission Act, 2012 creates the Ethics and Anti-Corruption Commission (EACC) whose mandate is to combat and prevent corruption and economic crimes set out in the Anti-Corruption and Economic Crimes Act. The Bribery Act, 2016 seeks to address the supply side of corruption by placing a duty on businesses to put in place appropriate measures relative to their size, scale and nature of operations towards the prevention of bribery and corruption, and also requires any person holding a position of authority in a business to report any knowledge or suspicion of bribery within twenty-four hours. Kenya is also party to international and regional initiatives on combating bribery and corruption.
Despite the above efforts, the NAP consultations identified several challenges that affect revenue transparency:
- Corruption in the process of revenue collection and the management of public revenue. Stakeholders identified corruption in the business licensing process, the process of tax collection and public procurement attributed to both public and private sector actors.
- Lack of disclosure of contracts particularly those that have significant economic and social consequences.
- Lack of transparency in administration and management of revenues from the exploitation of natural resources including from mining and oil and gas activities.
- The absence of legal beneficial ownership disclosure aids the veil of secrecy in determining who owns and controls business entities inhibiting law enforcement’s ability to ‘follow the money’.
Objective 1: ensuring State’s duty to protect, defend and respect human rights [page 1]
“The Government has the obligation to ensure the above mentioned human rights in these areas. Government’s actions and measures include legislative instruments aimed at the development of a legislative framework providing for responsible business practices and elimination of corruption in the public sector.”
B. Anticorruption measures [page 2]
1. “Effective implementation of coordinated anti-corruption policy. The aim is to ensure proactive and effective fight against corruption, thus reducing the overall scope of corruption.
Draft amendment to the National Anti-corruption Programme for 2011-2014 was drafted by the Ministry of Justice of the Republic of Lithuania and adopted through the Resolution of the Seimas of the Republic of Lithuania of 3 December 2013. The revision and updating of this programme focussed particularly on key problems in certain areas of the public sector.”
E. Measures related to international obligations [page 4]
2. “Accession to the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. The aim is to create conditions for the ratification of the Convention following Lithuania’s accession to the OECD. To successfully accede to this Convention, criminal legislation must contain a special rule providing for the liability of natural and legal persons for the bribery of foreign public officials in international business transactions. The legislation must also prohibit tax deductions from money obtained as bribes, irrespective of this money being accounted for in accordance with applicable legal requirements.”
Objective 2: promoting corporate responsibility and respect in the field of business and human rights
B. Government measures encouraging business enterprises to secure respect for human rights [page 7]
2. “Competition of business initiatives on anticorruption. With regard to the fact that in 2003 on the initiative of the UN 9th of December was declared the International Anti-Corruption Day, in order to support anti-corruption initiatives each year the Ministry of Economy announces the competition of business initiatives on anti-corruption and subsequently awards the initiators for the most effective business initiatives on anti-corruption.”
‘Luxembourg’s NAP does not explicitly address this issue’
The 2020-22 NAP states the second edition of the National Action Plan complements the first NAP. Additional information about the first NAP can be found here.
Content from the BHR specific chapter in the Human Rights NAP:
Strategic priority 3.6. Promote public policies aimed at the prevention and mitigation of adverse impact caused by private, public or mixed business activities.
3.6.6. Strengthen the complaint mechanisms that allow victims to report human rights infringements, corruption and malpractice in the business sector confidentially and anonymously, ensuring their protection.
2. Current policy [page 9]
“To prevent abuses in terms of working conditions, child labour, environment, corruption and human rights in their supply chains, the government expects companies to act in accordance with the OECD guidelines wherever possible.”
3.4 Transparency and reporting
Reporting [page 29]
“As it points out in its policy letter ‘CSR Pays Off’, the government supports the European Commission’s proposal to amend accounting legislation in relation to non-financial reporting. Large companies will be required to disclose information on human rights, environmental matters, social and employee-related matters and corruption.”
1.1 Developing an International Framework for CSR [pages 12-13]:
There is an increasing trend for international organisations, individual countries and civil society to establish partnerships and cooperation with companies. The UN Global Compact is one such initiative. This is a network-based organisation that works with business enterprises. The enterprises are committed to aligning their strategies and operations with 10 principles in the areas of human rights, labour, environment and anti-corruption….
…The UN Guiding Principles are intended to promote more sustainable, socially beneficial economic development. Promoting human rights is directly and indirectly linked with environmental protection, climate and anti-corruption efforts.
2.2 The State as adviser [page 20]:
Many Norwegian enterprises operate in new markets in weak states with poorly developed legislation or a poor capacity to enforce human rights legislation. Such companies are requesting advice and cooperation on CSR and related subjects such as security, risks and corruption.
The NAP provides examples of measures taken to address this risk, which includes: [page 21]: “strengthen guidance and dialogue with companies on human rights, business ethics, security and corruption in especially demanding markets.”
Due Diligence by GIEK, Export Credit Norway and Innovation Norway [page 24]:
The information on the company and the project for which support has been requested is assessed on the basis of a red flag checklist and a checklist based on the 10 principles of the UN Global Compact and adapted to Innovation Norway’s mandate and target groups. The red flags are: risk of corruption, the nature of the company’s activities in low-cost countries, ethical dilemmas and environmental pressure from commercial activities. CSR scores reflect the level of CSR-related risk connected with the project or whether CSR may be a reason for giving the case priority. One of the conditions laid down in the contract with the client is that the enterprise must have high ethical standards and avoid contributing to corruption, human rights violations, poor working conditions or adverse impacts on local communities or the environment.
2.6 Human Rights in Conflict Affected Areas [page 26]:
Companies themselves have a responsibility to identify serious risks connected with areas that have been or are affected by conflict. There is an increasing demand from the business sector for dialogue and cooperation with the public authorities on security, risk assessment and corruption in conflict areas and demanding markets in these areas.
The NAP then provides examples of measures to address human rights in conflict affected areas [page 26], namely: “strengthen the dialogue with the business sector through the missions abroad on the risks associated with human rights violations, security concerns and corruption in conflict areas” and “strengthen project cooperation with the business sector on ethics, security and corruption.”
Responsible Business Conduct [page 32]:
Political unrest and conflict entail a particularly high risk of human rights abuses. Companies that operate in such areas should therefore exercise particular due diligence if they are to avoid becoming involved in such abuses. A typical example is abuses perpetrated by security personnel hired to protect the company. There is also a higher risk of corruption, illegal transactions, sexual abuse and other forms of violence against civilians.
CHAPTER 1: National Action Plan on Business and Human Rights
1.4. Coherence between the National Action Plan, Other Government Policies, and Pakistan’s International Commitments (Page 10)
‘Pakistan’s GSP+ Status […] was granted in light of and to support Pakistan’s efforts at strengthening compliance with the 27 core international conventions pertaining to human rights, labour, corruption and the environment […] and will be further strengthened through the protection of human rights in business activity. The NAP provides a strong framework to support Pakistan’s commitments under schemes such as GSP+.’
Chapter 2: Protect, Respect, Remedy Framework
Pillar I | State Duty to Protect Human Rights (page 12)
‘There are several other laws that specifically deal with the human rights of citizens with regards to protection from environmental degradation, corrupt practices, unlawful land arrangements, tax evasion, etc.’
Pillar II | Corporate Responsibility to Respect Human Rights (page 13)
‘Pakistan also has in place laws relating to corruption & bribery, protection of the environment, taxation, land arrangements, consumer protection and the right to information in the context of business activity.’
CHAPTER 3: National Action Plan Priority Areas and Proposed Actions
3.2. NAP Priority Areas
3.2.1 | Financial Transparency, Corruption and Human Rights Standards in Public Procurement Contracts (page 18)
‘As established during the NBA and consultative process, lack of financial transparency especially in relation to corruption and bribery are prevalent in Pakistan. These have a direct correlation with human rights as the lack of financial transparency contributes to money laundering, terror financing and tax evasion, which negatively impact social development programmes and human rights. Additionally, the nexus between corruption and the adverse impact on human rights needs to be explicitly highlighted in legislation and policies, and in the working of law enforcement bodies.
Various laws and regulations have been introduced by the State of Pakistan to curb corrupt practices and activities involving bribery. Similarly, enforcement mechanisms have also been established to ensure the effective implementation of the laws and regulations prohibiting corruption and activities involving bribery. […]’
- Federal (page 18)
‘9. Pass the Whistleblower Protection and Vigilance Commission Bill 2019 to ensure protection of whistle-blowers disclosing information related to financial discrepancies and corruption.
Performance indicator(s): Enactment of the Whistleblower Bill
UN Guiding Principle(s): 1, 3
Relevant SDG(s): Goal 16 – Peace, Justice and Strong Institutions’
This information is also covered under Appendix I: Implementation Plan, Proposed Action 9 designating the Ministry of Human Rights and the Ministry of Law and Justice as Leading Entities (page 46).
’12. Further strengthen judicial processes and create awareness on issues related to Anti-Money Laundering/Counter Terror Financing (AML/CTF) to encourage financial transparency.
Performance indicator(s): Number of trainings on AML/CTF
UN Guiding Principle(s): 1, 2, 3, 25
Relevant SDG(s): Goal 16 – Peace, Justice and Strong Institutions’
This information is also covered under Appendix I: Implementation Plan, Proposed Action 12 designating the Ministry of Human Rights, the Ministry of Law and Justice and the Anti-Corruption and Economic Crime Wing (Federal Investigation Agency) as Leading Entities, and designating the National Accountability Bureau, the Securities and Exchange Commission of Pakistan, the State Bank of Pakistan, the Provincial Home Departments, the Provincial Law Departments, the Supreme Court of Pakistan, the High Courts, the District Courts, the Federal and Provincial Judicial Academies, the Federal and Public Service Commissions, the Anti-Narcotics Force, the Anti-Terror Courts, the Provincial Anti-Corruption Bodies as Additional Entities (page 46).
ANNEX II | Actions Already Undertaken by Pakistan
B. Measures Relevant to the NAP Priority Areas
i. Financial Transparency, Corruption and Human Rights Standards in Public Procurement Contracts (page 73)
‘Corruption in the public sector has been criminalised under various legislative instruments such as the Pakistan Penal Code 1860 and the Prevention of Corruption Act 1947.
The Local Government Acts and Ordinances, which apply at both Federal and Provincial levels, also provide guidance to public officials to ensure that their actions do not constitute corruption or misuse of authority.
The Eradication of Corrupt Business Practices Ordinance 1998 has also been promulgated to enforce anti-corruption laws against companies. This law criminalises any act of corruption carried out during business activity.
The National Accountability Bureau (NAB) has been established to ensure the enforcement of laws and to investigate and prosecute crimes of corruption. In recent years, the independence of NAB has been strengthened to ensure that all cases of corruption and financial misrepresentation are thoroughly investigated. In this regard, the Federal Investigation Agency, and the Federal Board of Revenue supplement the work of the NAB to ensure that criminal actions involving corruption are adequately addressed.
The Provincial Anti-Corruption Establishments have also been set up to investigate offences of corruption by public servants.’
CHAPTER II: THE BUSINESS AND HUMAN RIGHTS SITUATION IN PERU
In terms of transparency and integrity, it is necessary to have specific trade union instruments on the implementation of integrity and anti-corruption policies in the value chains. In this regard, the initiative to adopt codes of ethics and the explicit anti-corruption commitment adopted by associations such as Confiep should be highlighted. – page 37
CHAPTER III DIAGNOSIS AND BASELINE: ACTION AREAS
3.2. Conclusions of the specific issues
Transparency, integrity, and fight against corruption
In recent years, the conviction has been established that corruption cuts across different areas and has a direct and unacceptable impact on human rights. For this reason, the State has signed the main treaties on the subject, which it has been implementing in its internal regulations through a National Policy and a National Integrity and Anti-Corruption Plan. It has also created integrity offices or units at the central government level, which has made relative progress at the sub-national level. In terms of transparency, progress has been made with measures such as the mandatory presentation of the declaration of interests. On the other hand, it is also necessary to strengthen the autonomy and effectiveness of the National Transparency Authority. Likewise, it is necessary to strengthen the public procurement model to include incentives for companies that meet integrity standards, as determined by the evaluation of the state of the art of the GP-RBC approach in the public procurement system, which will be carried out within the framework of the implementation of the NAP.
From the business sector, there is an explicit commitment of the unions to articulate their efforts with public policy on the matter. Proof of this are measures such as the Technical Secretariat of the Global Compact, the incorporation of SDGs in business work, the Private Anti-Corruption Council, the Ethics Committee, the Code of Conduct, the participation of important business associations in the High-Level Anti-Corruption Commission, the Transparency Initiative in the Extractive Industry, among others. Regarding reparation mechanisms, progress has been made in incorporating the ad- ministrative responsibility of companies for corruption offenses, which should be complemented with expeditious and accessible reparation procedures and a system of precautionary measures or guarantees of non-repetition. – page 43
Table 8: NAP strategic guidelines and objectives, and alignment with the axes of the Peru Vision 2050
Strategic guideline No. 4: Promotion and design of due diligence procedures to ensure the respect of human rights by companies
Objective 2: Establish mechanisms for companies to report on their human rights due diligence processes.
Action: Promote the implementation of compliance and corruption prevention mechanisms, considering the GP- RBC approach.
Background: It consists of generating spaces for discussion on the benefits of corporate compliance, as well as providing support to the business sector, both private and public, for the implementation of these corruption prevention schemes.
Indicator: Number of activities to disseminate and promote the measure. – page 109
Strategic guideline No. 5: Design and strengthening of mechanisms to ensure that those affected by human rights violations have access to judicial, administrative, legislative, or other means of redress.
Objective 1: Strengthen mechanisms at the state level to redress human rights violations in the corporate sphere.
Action: Promote and encourage expeditious and accessible procedures for the redress of persons directly affected by serious acts of corruption or when their commission involves legal persons, incorporating the GP-RBC approach and, therefore, evaluating the inclusion of guarantees of non- repetition, apologies, and non-judicial mechanisms based on mediation
Background: Peru has made significant progress focused on sanctions, through the incorporation of administrative liability of companies for corruption offenses, as well as the establishment of a legal framework to ensure that companies involved in corruption cases comply with the payment of civil reparations.
Indicator: Number of activities to promote and encourage the aforementioned procedures. – page 121
2017-2020 NATIONAL ACTION PLAN
Pillar I: The State’s duty to protect human rights
7. Planned and ongoing activities [page 27]
“Training in business and human rights based on the United Nations Guiding Principles on Business and Human Rights run by the Ministry of Foreign Affairs for heads of embassies, consulates-general, and Polish institutes, and in CSR/RBC, business and human rights, and corruption prevention run by the Ministry of Economic Development for individuals delegated to work in Trade and Investment Promotion departments and the Permanent Representation of the Republic of Poland to the OECD”.
Pillar II: The Corporate Responsibility to Respect Human Rights
2. Dialogue and Exchange of Knowledge and Experience in Implementing CSR [page 30]
“There are four categories of corporate activities that relate to corporate social responsibility: corporate governance, employees, the environment, and the product. The activities conducted within these categories may include: the shaping of an ethical organisational culture, codes of ethical conduct, risk management, communication of CSR/RBC activities through disclosure of non-financial data (social reporting, integrated reporting), anti-corruption measures; (…).”
3. Non-financial reporting: implementation of Directive 2014/95/EU [page 31]
“The implemented provisions of the directive aim to increase the transparency of information with respect to corporate social responsibility (CSR) presented in the activity report (in the form of a statement) or in a separate report on environmental, social, and occupational issues, respect for human rights, and anti-corruption measures.”
Appendix 1: International non-binding mechanisms and international legal framework in force in Poland in relation to business and human rights
International non-binding mechanisms [page 55]
“Corporate responsibility for infringements of international human rights standards/norms is provided for in non-binding mechanisms. In this regard, besides the UN Guiding Principles on Business and Human Rights, the following documents should be mentioned: (…)
2. 10 Principles of the Global Compact, an initiative of the UN Secretary-General: A declaration from 2,000 containing voluntary commitments for those enterprises that signed it. The document covers the principles of human rights, labour law, environmental protection, and anti-corruption provisions. The declaration was signed by 82 entities from Poland;
International legal framework in force in Poland [page 56]
“In international law, there are no treaty provisions that impose obligations on international enterprises to respect human rights and make them liable for human rights infringement. Nevertheless, in certain multilateral conventions, states undertake to establish their jurisdiction over the extraterritorial activities of legal entities falling within the scope of the convention in question. Treaties of this kind provide for the obligation to introduce criminal liability for legal entities in national legislation. The agreements of this type to which Poland is a party include: Council of Europe Criminal Law Convention on Corruption of 27 January 1999 (Journal of Laws of 2005, Item 249) (…) ”.
2021-2024 NATIONAL ACTION PLAN
|Appendix 2 (information of the Ministry of Foreign Affairs)
GOOD PRACTICE CATALOGUE FOR FOREIGN MISSIONS IN THE FIELD OF BUSINESS AND HUMAN RIGHTS2
– avoid corruption-generating situations and regularly train employees in this area, particularly with regard to acceptable practices for maintaining social relations with business partners and accepting gifts in accordance with Polish and local laws and customs in the host country; – page 47
Principle 1 – State’s duty to protect human rights
In accordance with its international commitments and national legislation, Slovenia will strive for the effective implementation of policies and measures…combating corruption. (pg. 9)
Principle 2 – States sets expectation for respecting human rights
Respect for human rights in the business sector is also required by the laws governing…the fight against corruption. (pg. 10)
Principle 3(d) – Non-financial reporting
In accordance with the Act Amending the Companies Act, which transposed Directive 2014/95/EU into the Slovenian legal order, large companies which are public-interest entities exceeding the average number of 500 employees must include a non-financial statement in the management report, containing information…relating to the fight against corruption and bribery. (pg. 23)
Principle 9 – Adequate domestic policy to meet HR obligations
Channeling development cooperation towards ensuring human rights is indirectly reflected in the…fight against corruption, endeavours to achieve responsible management of public finance. (pg. 31)
South Korea’s NAP makes no reference to corruption.
The Spanish NAP makes no explicit reference to corruption.
1 The State duty to protect human rights [page 11]
Criminal law provisions to protect human rights
“Sweden has a number of criminal law provisions for the protection of human rights regardless of the context in which an offence is committed, including in the business context. Through these criminal provisions Sweden also fulfils its international commitments in relevant respects. Examples include: …
- Protection of property, against corruption, etc., through criminal liability for offences such as theft, robbery, fraud, extortion, receiving stolen goods, bribery, dishonesty to creditors and infliction of damage (Chapter 8–12, Penal Code).”
Annex: Measures taken [page 22-24]
The State as actor
- “Corruption is a global problem and often plays a significant role in human rights abuses. International cooperation against corruption has become more intense and several important agreements have been entered into, including the United Nations Convention against Corruption, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and two Council of Europe conventions. Sweden attaches great importance to international cooperation against corruption and works actively to implement the conventions and spread knowledge about their contents to relevant parties. In 2010, Sweden took over the chair of the management group of the Business Anti-Corruption Portal. It has developed the Portal, in part through cooperation with the European Commission, to cover approximately 100 countries since the beginning of 2014. The information, which mainly targets the business community, is available in English, German, Russian, Chinese and Arabic. Sweden provides support to the Extractive Industries Transparency Initiative (EITI), which works to combat corruption in the mining industry. …
- Like other state-owned companies, Swedfund International AB (Swedfund) and the Swedish Export Credit Corporation (SEK) are required to comply with the government state ownership policy for CSR, as described above. Moreover, Swedfund and SEK have social mandates specially adopted by the Riksdag. Swedfund is required to ensure that its investments comply with international standards and CSR principles, within clear and sound corporate structures that do not contribute to tax evasion, money laundering or terrorist financing. SEK is required to take account of conditions such as the environment, corruption, human rights and working conditions in its credit assessments.
Action by government agencies
- “The Swedish Export Credits Guarantee Board (EKN) has been instructed in its appropriation directions to pursue continuous development of its work on human rights, working conditions, the environment, corruption and internet freedom, based on OECD recommendations in these areas (‘Common Approaches’ and ‘Bribery and Officially Supported Export Credits’). EKN also has instructions to ensure that its activities comply with, and information has been provided about, the OECD Guidelines for Multinational Enterprises, the principles of the UN Global Compact and the UN Guiding Principles on Business and Human Rights.”
Annex: Measures planned [page 27]
Regulations and legislation
- “The interim report Implementation of the EU’s new accounting directive (Swedish Government Official Reports 2014:22) proposes enhanced transparency regarding payments made by some companies active in the extractive industry and in the logging of natural forests. The provisions will require companies to publish annual reports on payments made to authorities in the countries in which they operate. The aim is to combat corruption.
- The EU has adopted a Directive amending the Accounting Directive on disclosure of non-financial and diversity information. Corporate disclosure of sustainability and diversity policy (Ministry Publications Series 2014:45) proposes that certain companies prepare a sustainability report providing information on, for example, respect for human rights and anti-corruption activities. It is also proposed that the corporate governance reports of certain listed companies disclose the diversity policy that applies to their board.”
Annex: Links [page 30]
“Anti-corruption steering group portal: www.business-anti-corruption.com”
2 National Action Plan on Business and Human Rights 2020-23
2.2 Pillar 2: the corporate responsibility to respect human rights
The growing interdependence of businesses resulting from their involvement in global value chains has pushed issues such as working conditions, human rights, corruption and the environment to the top of the political and social agenda.
Guiding Principles 1 to 3
Measure 5: Multi-stakeholder initiatives on business and human rights
The federal government also backs multi-stakeholder initiatives that focus on human rights issues in sectors such as textiles, cocoa and gold. As these initiatives cover other subjects such as corruption and the environment, they are dealt with in Measure 10 of the 2020–23 CSR [Corporate Social Responsibility] Action Plan.
|Support multi-stakeholder initiatives on business and human rights||Federal government support for at least two projects launched as part of multi-stakeholder initiatives.||FDFA [Federal Department of Foreign Affairs],
EAER [Federal Department of Economic Affairs, Education and Research]
III. The state duty to protect human rights
B. Actions taken
- Voluntary commitment to implementation of international covenants (page 6)
‘The Taiwan government has committed to fully implement human rights both at home and abroad. […] although Taiwan is not a member of the United Nations, it has nevertheless signed and ratified important United Nations human rights covenants in recent years, including the […]”Convention against Corruption.”’
- Business-related human rights safeguards in Taiwanese legislation (page 7)
The Taiwan government has already incorporated the […] “Convention against Corruption,” and other such UN covenants and conventions into domestic legislation, so they can be directly applied as Taiwan law.’
V. Access to remedy
B. Actions taken
- Actions taken
Extraterritorial jurisdiction (page 18)
‘With respect to any human rights abuses that occur overseas, Taiwan already has laws and regulations which provide that such abuses are subject to the jurisdiction of Taiwan’s judicial authorities no matter where the abuses have taken place. For example, if a responsible person or an employee of a company […]offers a bribe to a public servant from Taiwan or a foreign nation in connection with cross-border trade, investment, or other business activities (as referred to in Article 11 of the “Anti-Corruption Act”), the offense will be subject to the jurisdiction of Taiwan’s judicial authorities regardless whether the offense is punishable or not under the law of the land where the crime is committed.’
Appendix 1: Concrete actions taken by Taiwan to fulfill the state obligation to protect
- Taiwan’s commitment to human rights and international participation (pages 23-24)
‘The “Act to Implement the United Nations Convention against Corruption,” which entered into force on 9 December 2016, was enacted in response to international trends and challenges in the fight against corruption. Our government issues periodic reports on the state of Taiwan’s implementation of the UN Convention against Corruption.’
Appendix 3: Concrete actions taken by Taiwan to provide effective remedy systems
- Extraterritorial jurisdiction
Article 11 of the “Anti-Corruption Act” provides that a public servant who offers (in connection with cross-border trade, investment, or other business activities) to bribe a public servant from Taiwan, the Chinese mainland, Hong Kong, or Macao shall bear criminal liability, and the offender will be dealt with according to the provisions of the “Anti-Corruption Act” regardless whether the offense is punishable or not under the law of the land where the crime is committed.
3. The core content of the National Action Plan on Business and Human Rights
3.1 Action plan on labour
3.1.3 Action Plan (2019–2022)
Pillar 1: State duties in protecting (Protect)
|Responsible agencies||Time-frame (2019–2022)||Indicators (wide frame)||Compliance with National Strategy/ SDGs/UNGPs|
|4.||Recruitment||Arrange for informers of corruption cases to enter the witness protection programme||– Royal Thai Police
– Ministry of Justice
|2019–2022||Number of witnesses entering protection and receiving safety||– National Strategy for Public Sector Rebalancing and Development
– SDG 16
– UNGPs Articles 1, 3, 4, 10 and 25
CHAPTER THREE: SITUATIONAL ANALYSIS
3.4 Revenue Transparency, Tax exemptions and corruption
Uganda has been consistently attracting the highest foreign direct investment (FDI) in East Africa by attracting between $250 – 300 million in FDI annually between 2010 and 2016 – largely due to its stable and consistent macro-economic policies including liberalization of business environment and tax incentives to investors in selected sectors like manufacturing, oil and gas and Energy (URA, 2019; a Guide on Tax Incentives/Exemptions Available to the Uganda Investors).
Stakeholders, particularly national business owners’ and private providers, noted that tax exemptions were not provided transparently and they were provided to large or foreign companies, making the State to lose needed revenue and causing unfair competition between those who receive and those who do not. The participants also noted that if tax exemptions/ tax incentives are to be granted, the business owners should demonstrate that the exemptions/ tax incentives are justified and their implementation will ensure deliberate, concrete and targeted steps to guarantee protection and fulfilment of human rights, particularly through employment creation and delivery of social services thus improving lives of the Ugandans. In addition, the exemptions should be monitored, their social benefits and the human rights compliance periodically assessed. The assessments should be informed by broad public participation, especially of individuals that are directly affected.
Revenue transparency particularly revenue in the extractives sector has become an increasing concern to the public. There has been a wider call for resources justice through arrangements such as Publish What You Pay (PWYP), the Natural Resources Charter, Extractives Industries Transparency Initiative among others. The NAP consultations enlisted several challenges that affect revenue transparency. There is an inflow of investors opera ng in the districts but without licenses from the district authorities. This was typically raised in Karamoja region where many business owners in the mining sector emerge with mining licenses purportedly from Kampala and do not contribute any taxes to the local government authorities. This has led to reduction in local revenue collection as well as affected social service delivery to the communities.
Corruption is one of the major challenges leading to violation of human rights in business operations in Uganda. Many business operators reported corruption in procurement, acquisition of licenses and tax collection. Imprudent utilization of tax and other resources through corruption undermines positive outcomes of businesses in Uganda. This weakens the economic and social efforts of the government to provide services and even further discourages transparency in matters of business operations.
The UK 2013 NAP states in Actions taken that [page 10]:
“To give effect to the UN Guiding Principles, we have: … (vi) continued to provide financial support to the UN Global Compact, a global mechanism that encourages and enables companies to align their operations and strategies with ten universally accepted principles in the area of human rights, labour, environment and anti-corruption.”
The UK 2016 Updated NAP refers to corruption in the section on Actions Taken to Support Business Implementation of UNGPs [page 16]:
“To help businesses to fulfil their responsibility to respect human rights the Government has: (…) (viii) continued to provide financial support to the UN Global Compact, a global mechanism that encourages and enables companies to align their operations and strategies with ten universally accepted principles in the area of human rights, labour, environment and anti-corruption.”
The topic of corruption and methods address it features heavily in the U.S. NAP.
Foreword [page 1]
“The United States is committed to promoting human rights and leading the global fight against corruption. Corruption is not only immoral, it diverts public and private resources away from priorities such as feeding children, improving schools, and building the infrastructure that promotes development. Corruption enables the abuse of human rights, erodes democratic institutions, fuels organized crime and terrorism, and contributes to economic inequality. For companies investing overseas, corruption is a significant market access barrier that impedes business and economic growth.
Through our partnerships with the private sector, labor groups, civil society, other governments, and international organizations, the United States has fought corruption overseas by encouraging companies to embrace high standards of responsible business conduct. U.S. companies are among the most sought-after partners across the globe because they take seriously their responsibility to follow the rule of law, uphold human and labor rights, and strengthen the communities in which they operate.”
Purpose of the NAP [page 5]
“The NAP focuses on a broad range of issues including but not limited to: … anti-corruption …”
The National Action Plan
Leading by Example [page 7]
“The U.S. government remains committed to working with governments to raise global standards for RBC, including on labor rights, human rights, and anti-corruption, and to lead a race to the top. Promoting RBC benefits companies from all countries that fight corruption, combat human trafficking, promote labor and human rights, and adhere to high standards. Through leadership on these issues in various international organizations, including the UN and OECD, the U.S. government will continue to advocate for effective implementation of relevant international provisions in order to advance RBC”
Outcome 1.1: Promoting RBC Globally
New Actions [page 8]
“Corruption Consortium: An important deliverable from the International Anti-Corruption Summit held in the United Kingdom in May 2016, State and the U.S. Agency for International Development (USAID) will launch the Global Anti-Corruption Consortium (GACC), a new initiative to support international efforts to expose corruption, raise public awareness, and facilitate action by government, law enforcement, and multilateral organizations. GACC will expand the quality and scope of civil society investigations and reporting by mentoring investigative journalists and facilitating collaboration among anticorruption civil society actors. The initiative will improve civil society’s ability to pursue action by government and international bodies to combat corruption.” – Implementing Department or Agency: State, USAID
Ongoing Commitments and Initiatives [page 8]
“Inter-American Convention Against Corruption: The United States will continue to actively support implementation of the Inter-American Convention Against Corruption, including through active participation in the country review process” – Implementing Department or Agency: DOJ, State, Treasury, Commerce
“Asia–Pacific Economic Cooperation (APEC): The U.S. government has played an important role in numerous APEC initiatives to combat corruption, including the recent APEC Principles on the Prevention of Bribery and Enforcement of Anti-Bribery Laws, as well as the APEC General Elements of Effective Voluntary Corporate Compliance Programs adopted by APEC Leaders in 2014. For example, in August the United States and Peru hosted an all-day APEC Workshop on anti-bribery corporate compliance programs and incentives, organized by the Peruvian High-Level Anticorruption Commission and the Department of Commerce. The U.S. government is also actively engaged in the Business Ethics for APEC Small and Medium Enterprise Initiative, the world’s largest collective action mechanism to strengthen ethical business practices in the medical device, biopharmaceutical, and construction and engineering sectors.” – Implementing Department or Agency: State, Commerce
Outcome 1.2: Utilize U.S. Law, Multilateral Agreements, and Diplomacy to Promote and Enforce High Standards
Ongoing Commitments and Initiatives [page 9-10]
“Free Trade Agreements: … All U.S. FTAs since 2004 also contain transparency and anti-corruption provisions, including requiring our trading partners to criminalize both domestic and foreign bribery. For instance, the TPP includes a historic transparency and anti-corruption chapter. The TPP Parties have also agreed to encourage companies to voluntarily adopt corporate social responsibility principles that the TPP parties have themselves supported or endorsed relating to labor and environment issues.” – Implementing Department or Agency: USTR, State, Commerce, DOL
“Anti-Bribery and the OECD: The United States plays a leadership role in the Anti-Bribery Convention’s monitoring mechanism, conducted by the OECD Working Group on Bribery in International Business Transactions, which has been instrumental in increasing the number of countries enacting and enforcing foreign bribery laws. In the coming year, the U.S. government – led by State, the Departments of Justice (DOJ) and Commerce, and the Securities and Exchange Commission (SEC) – will continue to push for robust country reviews of Parties to the Antibribery Convention and examine obstacles to advancing the global efforts to address international bribery and corruption.” – Implementing Department or Agency: State, Commerce, DOJ, SEC
Outcome 1.2: Utilize U.S. Law, Multilateral Agreements, and Diplomacy to Promote and Enforce High Standards
Ongoing Commitments and Initiatives [page 10]
“International Anti-corruption and Good Governance Act (IAGGA): The U.S. government will continue its commitment to implement the IAGGA.” – Implementing Department or Agency: State, USAID, Commerce
Collaborating with Stakeholders [page 13]
“U.S. companies doing business around the world encounter a range of challenges, from lack of infrastructure, to corruption, to difficult operating environments. These challenges can hinder their ability to produce and deliver goods and services, and can also present dilemmas for companies seeking to operate responsibly and adhere to high standards.”
Outcome 2.1: Enhance the Value of Multi-Stakeholder Initiatives on RBC
New Action [page 14]
“Promoting Rights and Accountability through RBC: In May 2016, USAID launched a new Broad Agency Announcement calling for organizations and companies to collaborate in the development, piloting, testing, and scaling of innovative, practical, and cost-effective interventions to address human rights and anti-corruption in business activities globally. USAID seeks through this announcement to create more strategic, focused, and results-oriented approaches to generate solutions to rights abuses and corrupt practices in global commerce, and form partnerships to target risks and prevent violations. Under this umbrella announcement, USAID will continue its Supply Unchained initiative to better identify — and counter — human trafficking and other labor exploitation at its source.” – Implementing Department or Agency: USAID
“Wildlife Crime Tech Challenge: USAID’s Wildlife Crime Tech Challenge recently selected sixteen Prize Winners and four Grand Prize Winners who submitted the most creative, innovative, and promising science and technology solutions to combat terrestrial and marine wildlife crime, with a focus on combating corruption and reducing consumer demand for illegal wildlife products. Grand Prize Winner New England Aquarium’s solution will digitize customs paperwork and conduct real-time analysis to identify illegal wildlife products hidden in legitimate trade. The National Whistleblower Center, another Grand Prize Winner, will build a secure, transnational reporting system designed to fight corruption by incentivizing insiders to securely report wildlife crime.” – Implementing Department or Agency: USAID
Ongoing Commitments and Initiatives [page 14-5]
“Open Government Partnership (OGP): In 2011, President Obama joined seven other heads of state to launch the OGP, a global platform between governments and civil society to promote government transparency, participation, and accountability to citizens. By June 2016, OGP had grown to 70 member states that have made over 2,500 commitments to further government transparency and accountability in just five years. OGP member states — and hundreds of civil society leaders — are committed to working together to promote transparency, empower citizens and civil society, fight corruption, and transform how governments deliver services for their citizens. The United States has released three NAPs under OGP, most recently publishing an update to its third action plan this past September. In demonstration of U.S. commitment to OGP, the USG intends to provide $4 million to support the OGP Support Unit over the next four years, potentially including support to members in the development of National Action Plans, government and civil society consultations, peer learning and exchange, and technical assistance programs. In addition, USAID Missions have financed millions of dollars-worth of OGP-related activities — $14 million in FY2015 alone — ranging from sponsoring citizen consultations, to coordinating OGP workshops with senior government officials, to providing technical assistance with implementation of OGP NAP commitments.”
Facilitating RBC by Companies [page 17]
“The U.S. government is supportive of company efforts to voluntarily report on human rights impacts, anti-trafficking measures, transparency and anti-corruption efforts, and other related aspects of their global operations, including the opportunities and challenges they face.”
Outcome 3.1: U.S. Government Reports
Ongoing Commitments and Initiatives [page 18]
“Country Commercial Guides: Commerce will continue to include an anti-corruption section in U.S. and Foreign Commercial Service Country Commercial Guides.” – Implementing Department or Agency: State, DOJ, SEC, Commerce
“Anti-Corruption Publications: U.S. government agencies will continue to provide information to companies through a number of U.S. and international publications designed to assist firms in complying with anti-corruption laws, including The FCPA Resource Guide.” – Implementing Department or Agency: State
Outcome 3.2: Build U.S. Government Officials’ Capacity to Support RBC
Ongoing Commitments and Initiatives [page 19]
“FCPA Training: State and Commerce will continue to provide FCPA and related anticorruption training to Commerce’s U.S. and Foreign Commercial Service officers and State Foreign Service officers so that they may raise awareness about corruption and compliance programs and assist U.S. companies as appropriate when confronted with corruption overseas.” – Implementing Department or Agency: State, Commerce, DOJ, SEC
Outcome 3.3: Capacity Building and Technical Support to Promote Enabling Environments
Ongoing Commitments and Initiatives [page 20]
“Engagement with Companies on Anti-Corruption Issues: DOJ, SEC, Commerce, State and other U.S. government agencies conduct outreach to the business community and will continue to coordinate with the private sector on anti-corruption issues. To this end, DOJ will continue to provide businesses, through its FCPA opinion release procedures, the opportunity to seek an opinion as to whether certain prospective, non-hypothetical conduct conforms with DOJ’s enforcement policy. Commerce and State, including through Foreign Commercial Service officers and State Foreign Service officers, will continue to raise awareness about corruption and the importance of effective compliance programs, and assist U.S. companies as appropriate when confronted with corruption overseas. High-level Commerce officials also meet with business leaders around the world and advocate with government officials on rule of law and anti-corruption issues, and the Commercial Law Development Program (CLDP) meets regularly with U.S. businesses to better understand their concerns about, and provide programming in priority countries on, the legal and regulatory reforms needed to reduce corruption and level the playing field in developing countries for U.S. companies.” – Implementing Department or Agency: DOJ, SEC, State, Commerce
Recognizing Positive Performance [page 22]
“Rewarding activities helps affirm and draw attention to the significant efforts of deserving companies, and serves to reinforce how the U.S. government and U.S. firms work together to leverage comparative advantages to accomplish shared objectives, whether it be in environmental sustainability, labor rights and human rights, or anti-corruption measures.”
Annex II: Key Domestic Executive Orders and Regulatory Efforts [page 26-29]
“… The U.S. Foreign Corrupt Practices Act of 1977 (FCPA): In general, the FCPA prohibits certain classes of entities and individuals, including U.S. companies and citizens and companies publicly traded on a U.S. securities exchange, from offering to pay, paying, promising to pay, or authorizing payments to foreign officials to influence their acts or decisions or to secure other improper advantages.
”No Safe Haven” Initiative: The “No Safe Haven” initiative aims to deny entry into the United States and U.S. citizenship to the corrupt, to bribe payers, to those who benefit from corruption, those who commit certain human rights violations, and to human rights abusers and war criminals. The initiative is complemented by Presidential Proclamation 7750, which suspends the entry, in part, of public officials who accept bribes and the individuals who provide them, along with immediate family members of public officials who benefit from the corruption.
Kleptocracy Asset Recovery Initiative: DOJ uses legal tools to trace and recover the proceeds of foreign corruption in the United States. A team of prosecutors works with federal law enforcement agencies to track the proceeds of foreign corruption, prosecute those who launder the proceeds of corruption, and put forfeited assets to use for the benefit of the people of the country victimized by such abuses of public trust. The Initiative ensures that corrupt foreign leaders cannot seek to launder or spend their stolen wealth in the United States. DOJ also participates in various international fora on asset recovery and, along with the Departments of Treasury and State, pushes to strengthen the global implementation of the international anti-money laundering and counter-terrorist financing standards through the FATF. In addition to the Kleptocracy Initiative established in 2010, DOJ has five other anti-corruption programs. DOJ focuses on investigating and prosecuting domestic public integrity offenders, bribe payers, taxpayers who seek to conceal foreign accounts, and money launderers who facilitate the movement, use, and concealment of corrupt funds, and DOJ continues to provide legal assistance to its foreign partners to fight corruption and ensure it is not a profitable enterprise.
Money Laundering and Bank Integrity: Treasury administers the Bank Secrecy Act (BSA), which, among other things, requires financial institutions to maintain effective anti-money laundering (AML) compliance programs. Effective AML programs include, among other things, the ability to detect and report suspicious activity, including corruption, and to conduct due diligence and enhanced measures when banks, broker-dealers, or other institutions deal with senior foreign political figures. DOJ prosecutes criminal violations of the BSA focusing on criminal violations by financial institutions whose actions threaten the integrity of the individual institution or the wider financial system, as well as professional money launderers and gatekeepers. These unique cases reinforce the obligation on U.S. businesses in the financial sector to harden their infrastructure against financial crime—including bribery, misappropriation, and theft—and reinforce the private sector’s role as a strong line of defense against the introduction of ill-gotten gains to the U.S. financial system. …
“Transparency: The U.S. government is engaging in efforts to strengthen financial and corporate transparency to make our country even less attractive for the corrupt looking to spend the proceeds of their crimes. To that end, DOJ has submitted to Congress a package of legislative proposals that will improve the United States’ ability to combat money laundering, particularly when linked to foreign official corruption, and to locate and recover stolen assets and other criminal proceeds. Additionally, Treasury recently announced a final rule to increase transparency in the financial system. The final Customer Due Diligence rule, which was first noticed in 2014 and was subject to a public comment process, will require that financial institutions—including banks and other entities—collect and verify the personal information of the real people (also known as beneficial owners) who own, control, and profit from companies when those companies open accounts. It clarifies and expands BSA obligations and will be fully implemented by financial institutions no later than two years after its effective date (i.e. May 11, 2018). Finally, Treasury, on behalf of the Administration, sent to Congress draft legislation that would require companies formed within the United States to file adequate, accurate, and current information on its beneficial owners with Treasury. The proposed legislation includes penalties for failure to comply and is necessary to prevent the misuse of companies formed under state law. To address potential vulnerabilities in the domestic real estate market, Treasury uses its authorities to require certain title insurance companies to identify the natural persons behind shell companies used to pay “all cash” for high-end real estate in six major metropolitan areas.”