Courtesy Of : Jeff Radebe
Working together to ensure there are no safe havens for the proceeds of crime
South Africa as a country and its people identifies with the efforts by the international community to make the world a more hostile place to plan and execute crime. Even more in the Ministry of Justice and Constitutional Affairs our attention also focuses on taking away the proceeds of crime from criminals regardless of where they may be hidden.
The heightened probability of being arrested must have a discouraging effect on criminals. At all times the deterrent effect must result from the assurance that those who commit crime and seek to benefit from it will have nowhere to run to. They will have nowhere to hide their assets and that the community of nations is increasingly forming a formidable force to pursue them relentlessly, no matter where they may be in the world.
It is for this reason that our country pledges it support to an initiative such the Stolen Asset Recovery (StAR) initiative aimed at recovering stolen assets and returning them to their legitimate countries. The ANC government has as one of its priorities the fight against crime and corruption, regardless of who is behind it. We are not oblivious to sophisticated methods and elaborate plans employed especially by criminal syndicates when they try to cover their tracks so that the true source of their wealth may never be discovered.
We need to be more vigilant and as part of the international community we must cooperate even more. Working together we can do more to ensure that there are no safe havens anywhere in the world for the proceeds of crime and corruption. The StAR initiative is an international effort which has our country’s full support.
As nations of the world we need to demonstrate our commitment to combat corruption through visible actions. Corruption impacts negatively on the development of any state. It has a debilitating adverse impact on the service delivery to the poor as resources get diverted from where they should go to in the first place. This puts both political and financial strain on countries that do not have measures in place to fight corruption and thus the credibility of the state get undermined in the process.
We need to mobilize and marshal our resources mindful of the dynamics involved in the fight against crime and the efforts that must be made towards recovery of proceeds of crime and corruption. The transnational nature of activities involved in hiding proceeds of crimes demands that we consider a comprehensive global plan that must take this dimension into account.
There are major challenges attendant to the recovery of stolen assets. I am of the firm belief that if we pay attention and build capacity to tackle the recovery of stolen assets, we would as the international communities accelerate the speed with which we can curb the scourge of corruption and send a clear message that committing crime and corruption pays no dividends.
We need to focus on the following:
1.Adapt our asset recovery laws to local legal frameworks.
2.Do more cases, both the litigation and the financial investigations to trace assets.
3.Work together when dealing especially with international cases.
South Africa has taken a very strong stance in tackling corruption. As a country we have demonstrated our resolve and commitment to dealing with corruption and asset recovery by putting in place the necessary legal framework to support such endeavours. We have enacted the Prevention and Combating of Corrupt Activities Act of 2004. This legislation is an expression of, or took into account the requirements and obligations set out in international conventions and protocols aimed at fighting corruption. Those conventions and protocols include:
SADC Protocol against Corruption
The AU Convention on Prevention and Combating Corruption
The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
Among other things this legislation provides for the strengthening of measures to prevent and combat corruption. It provide for the investigative measures to deal more effectively with corruption and to deal with those matters of extraterritorial jurisdiction.
Whilst our country may not have been a pioneer on the asset recovery front, we nonetheless were able to draw meaningful lessons from those countries that led the way. In turn many other countries have been able benefit from our experience. We have in place legislation that allows for non-conviction based (civil forfeiture) and conviction based (criminal) asset forfeiture.
South Africa was one of the first countries to introduce into law the non-conviction based asset forfeiture mechanism. It is not only one of the most brilliant innovations to use civil litigation to fight crime, but has proven to be one of the most effective ones. We have on the basis of this mechanism assisted a number of countries where requests for assistance have been sent through.
The use of value-based asset recovery is yet another approach towards effective implementation of asset recovery. As it is the case in the United Kingdom, focus is more on obtaining civil judgment against the perpetrator for the amount of corruption. It is not necessary to prove that a specific property is the actual proceeds of corruption.
We need to have measures in place that will facilitate for nations to work together to ensure that there simply are no havens anywhere in the world. We need to put effective international legal instruments in place intended to put a halt to criminal acts of self-enrichment. To this end we need to find ways of ensuring that there are Mutual Legal Assistance agreements in place and where such exist, the speed with which requests receive attention is accelerated.
We must also encourage states to put measures in place that recognize and enforce foreign orders without duplicating legal proceedings. As it was the case in the matter of one Nigerian governor, application for forfeiture of his assets was not heard on merit in South Africa. We simply enforced foreign orders. In this way there is no double litigation on the same facts in various jurisdictions. Cases get finalized without delay.
We need to build more capacity for our investigators and prosecutors in the field. Exchange programs that involve experts can go a long way as those who have the necessary skill and expertise can impart knowledge by among other things through supervision and training.
In March 2009 delegates from law enforcement and prosecution agencies from Botswana, Lesotho, Mauritius, Namibia, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe met in Pretoria to discuss the creation of a new, informal network of investigators and prosecutors working on cases involving the identification, tracing, freezing, seizure, confiscation and recovery of proceeds and instrumentalities of crime.
The Asset Recovery Inter-agency Network of Southern Africa (ARINSA) is an informal network of contacts and a cooperative group in all aspects of tackling the proceeds and instrumentalities of crime. The intention is that ARINSA develops as an informal cooperative body, which will increase the effectiveness of members’ efforts, individually and collectively, on a multi-agency basis.
We trust that the international community and the G20 summit later this month will adopt an even tougher stance on the issue of safe havens. Issues that continue to hamper inroads in the area of asset recovery of crime proceeds include bank secrecy, opaque ownership arrangements with no records of beneficial ownership as well as the lack of effective “know your client” measures that must among other things identify those politically exposed persons.
I am grateful that South Africa has taken an international platform to lobby for the support of global efforts in the fight against corruption and asset recovery. I sincerely hope and believe that the StAR initiative will go a long way towards ensuring that there in fact are no havens anywhere in the world.
Jeff Radebe in an ANC NEC member and Minister of Justice and Constitutional Affairs. This article first appeared in ANC Today, the weekly online newsletter of the African National Congress.