VANUATU BECAME A SIGNATORY to the United Nations Convention Against Corruption (UNCAC) in 2011, also 11 other Pacific countries that have also signed the UNCAC.
Technically, when Vanuatu became a signatory to the UNCAC then the government is obliged to adapt the UNCAC regulations into Vanuatu’s legal framework in order to strengthen anti-corruption mechanisms in the country.
The United Nations Office on Drugs and Crime (UNODC) and the United Nations
Development Program (UNDP) published two reports under the Pacific Regional Anti-Corruption (UN-PRAC) project.
These reports provide an outline of the Pacific’s implementation of Chapter III (Criminalization and Law Enforcement) and Chapter IV (International Cooperation) of the UNCAC. From the reports we identify some of the mechanisms that have been implemented under from the UNCAC.
According to the report ‘Pacific Implementation of UNCAC Chapter III’ out of the 11 Pacific countries that signed the UNCAC 10 of them have established relevant anti-corruption bodies, and Vanuatu is one of them.
Vanuatu has several anti-corruption offices established by the government, they are; Office of the Attorney General (State Law), the Office of the Public Prosecutor, the Office of the Ombudsman, the Public Service Commission, the Vanuatu Financial Intelligence Unit and the Professional Standard Unit.
Public Official Offences
Secondly, the UNCAC requires state parties to establish certain offences by public officials as crimes. These includes bribery public officials, embezzlement, misappropriation, diversion of property by a public official, laundering of proceeds of crime and obstruction of justice.
Article 65(2) of the UNCAC also stipulates that; “Each State Party may adopt more strict or severe measures than those provided for by this Convention for preventing and combating corruption”.
Chapter III of UNCAC recognizes “the importance of having a means by which to deter and punish corruption. The Convention requires States to establish criminal and other offences to cover corrupt acts, if these are not already crimes under their domestic law. It includes both mandatory provisions and recommendations to be considered by States parties. Chapter III also focuses on the public and private sectors.”
Defining Public Officials
Who is a public official? According to article 2 of the UNCAC a ’Public official’ shall mean: (i) any person holding a legislative, executive, administrative or judicial office of a State Party, whether appointed or elected, whether permanent or temporary, whether paid or unpaid, irrespective of that person’s seniority; (ii) any other person who performs a public function, including for a public agency or public enterprise, or provides a public service, as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party; (iii) any other person defined as a “public official” in the domestic law of a State Party’.
In the Pacific, member States identify ‘public official’ or ‘public servant’ in line with the above UNCAC definition and to variable steps.
For Vanuatu, “it was noted that any member of a public body would be widely interpreted to include Members of Parliament. However, the reviewing experts recommended that Vanuatu ensure that the definition of public officer covers the scope defined in article 2(a) of the Convention and includes a person who performs a public function for a public enterprise”.
Abuse of Functions
Article 19 of the UNCAC obliges States parties to look into criminalizing the abuse of functions by public officials. The abuse of functions is explained as the “failure to perform an act, for the purpose of obtaining an undue advantage for him or herself or for another person or entity”.
Several States have implemented this article while others have not yet implemented theirs, Vanuatu is one of those countries that has implemented such provisions in place which is the Leadership Code Act (LCA) that was enacted in 1999, and interestingly the LCA was implemented a decade before Vanuatu signed the UNCAC.
The information contained in this this article is based on the outcome of the UNCAC Implementation Review Mechanism in the Pacific region until mid-2015. The countries that were covered are the Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Nauru, Palau, Papua New Guinea, Republic of the Marshall Islands, Solomon Islands and Vanuatu.
The implementation of Chapter III of the Convention varies across Pacific States parties. The review process identified a number of good practices, as well as differences and gaps in implementation.
The report also covers the implementation of anti-corruption mechanisms in the private sector and many other areas, and can be used as a resources for research.