Act No. 2015-16 06 July 2015 Act No. 2015-16 06 July 2015 authorising the President of the Republic to ratify the Protocol A/P3/12/01 bearing on the fight against corruption adopted in Dakar, on December 21, 2001.
EXPLANATORY statement corruption may be defined as the perversion or the diversion of a process or interaction with one or more persons for the purpose either for the corrupter of have benefits or special prerogatives, or, for the corrupt, to obtain compensation in Exchange for his benevolence.
Complex and multifaceted, corruption spares no country; It undermines all the efforts to achieve harmonious development. Also must be fought everywhere. It is active when it is to offer money or a service to a person in Exchange for an advantage unfair or passive if the person accepts this money or this benefit.
Aware of the pernicious effects of the phenomenon, the United Nations adopted the universal Convention against corruption in December 2003 in Merida (Mexico). Much earlier, the heads of State of ECOWAS countries, meeting in Dakar on 21 December 2001, adopted the Protocol A/P3/12/01 for the purposes of combating corruption, with as main objectives:-promote and strengthen the development of effective mechanisms to prevent, punish and eradicate corruption; in each of the States parties,
-intensify and make more dynamic cooperation between the Parties in order to make more effective the measures against corruption;
-promote the harmonization and coordination of laws and national policies of combating corruption.
Moreover, this Protocol is an additional instrument for the Government of the Republic of Senegal in its anti-corruption policy. Without a doubt, that corruption, by significant withdrawals she poses to the budgets of States, very seriously reduced the ability of the latter to provide basic services essential to the well-being of populations.
Composed of twenty-seven (27) items, this Protocol may be amended or revised by States parties which can also denounce it. The designation takes effect one (1) year after the deposit of the instrument of denunciation.
Any dispute which would be born from the interpretation or application of this Protocol shall be settled amicably by a direct agreement between the Parties. If it fails, the dispute shall be referred to the Court of Justice of the community whose decision is binding and without appeal.
This Protocol shall enter into force upon the deposit of the 9th instrument of ratification in accordance with the provisions of article 22. So far, only eight (08) countries have ratified it. Thus, the performance by Senegal of this formality will allow its entry into force.
Such is the economy of this Act.
The National Assembly adopted in its session of Thursday, June 25, 2015, the President of the Republic enacts the law whose content follows: sole Article. -The President of the Republic is authorized to ratify the Protocol A/P3/12/01 on the fight against corruption, adopted in Dakar, 21 December 2001.
This Act will be enforced as law of the State.
Made in Dakar, July 06, 2015 Macky SALL.
By the President of the Republic: Prime Minister Mahammed Boun Abdallah DIONNE Protocol A/P3/12/01 on the fight against the CORRUPTION preamble we, heads of State and Government of the Member States of the economic community of the West Africa States.
WHEREAS the aims and objectives of the community are to realize the integration of its members;
CONCERNED with the application of the provisions of Article 5 of the revised Treaty which requires Member States to take all necessary measures to harmonize their strategies and policies and to refrain from taking any action that may affect the achievement of the objective said;
Recalling the provisions of Articles 48 and 49 of the Protocol relating to the mechanism for prevention, management and settlement of conflicts, maintenance of peace and security which require Member States of ECOWAS to eradicate corruption, to adopt measures to combat money laundering and to promote transparency, accountability and good governance in their respective territories;
AWARE of the serious consequences of corruption on investment, economic growth and democracy;
CONFIDENT that transparency and good governance to strengthen democratic institutions;
Recognizing the role of the States; in the prevention and punishment of corruption
CONVINCED that the success of the fight against corruption requires cooperation in criminal matters;
Having A the mind the Conventions of ECOWAS relating to mutual assistance in criminal matters and extradition;
We welcoming the efforts of the United Nations, as well as efforts of international, regional and non-governmental, organizations in the fight against corruption;
CONVINCED of the need to adopt preventive and repressive measures to combat corruption and in particular take appropriate measures against those who commit acts of corruption in the performance of their public and private functions.
RESOLVED to unite the efforts of our States in the fight against corruption;
HAVE agreed the following: Article 1. -Definitions for the purposes of this Protocol: "Public official", any person designated, appointed or elected, exercising public functions on a permanent or temporary basis.
"Public service" means any temporary activity or permanent, paid or volunteer, accomplished by an individual on behalf of a State or under its direction, its control and authority.
The term "State" includes national, provincial, regional, local, municipal entities and their services, as well as other public agencies;
"Goods", means all assets, tangible or intangible, movable or immovable, tangible or intangible, and legal documents or instruments evidencing ownership of such assets or the duties y;
"Legal persons", any entity having such status under the national laws except for States or other public bodies in the exercise of public authority and public international organisations;
"Treaty", dated 24 July 1993 ECOWAS revised Treaty and includes all amendments relating thereto;
'Member (s) State (s)', Member State of the community as defined in paragraph 2 of Article 2 of the Treaty;
"Conférence", the Conference of Heads of State and Government of ECOWAS created by article 7 of the Treaty;
"Council", the Council of Ministers of the community established by Article 10 of this Treaty;
"Executive Secretary", the Executive Secretary appointed in accordance with the provisions of Article 18 of the Treaty;
"States Parties", the States which have acceded to the present Protocol, including the States members of ECOWAS.
"Foreign public official", any person exercising a public function in a company or a public body in another Member State;
'Court of Justice of the Community', the Court of Justice established in accordance with Articles 6 and 15 of the Treaty;
"Predicate offence" any offence as a result of which a product is generated, which is likely to become the subject of an offence as defined in article 6 of this Protocol.
Section 2. (- Goals and objectives this Protocol aims: i) promote and strengthen, in each of the States parties, the development of effective mechanisms to prevent, punish and eradicate corruption;
(ii) to intensify and make it more dynamic cooperation among States parties in order to make more effective measures against corruption;
III) to promote the harmonization and coordination of laws and national policies of combating corruption.
Article 3. -Scope 1. This Protocol shall apply whenever an act of corruption is committed, or has produced its effects in a State party.
2. this Protocol shall apply whenever a national institutional system is not able to apply the basic preventive measures listed in Article 5 below.
Article 4. -Jurisdiction 1. Each State party shall adopt the necessary measures to establish its jurisdiction over the offences established in accordance with Articles 6, 7, and 12 of this Protocol when: a. the offence has been committed on its territory;
b. the offence has been committed by one of its nationals or a habitual resident.
2. a State party on whose territory an alleged offender is, if it does not extradite that person for the offence to which applies the Convention of ECOWAS on extradition, on the pretext that it is one of its nationals even though it is seized of a request for extradition, shall submit, without delay, the case to the competent authorities of his country to that of prosecution against the offender.
3. each State party shall consider whether current legal jurisdiction is effective in the fight against the bribery of foreign public officials and harmonization.
4. States parties shall consult each other in the event of conflict of jurisdiction in order to determine the jurisdiction most suitable for prosecution.
Article 5 -Preventive measures
Order achieve the objectives defined in Article 2 above, each State party undertakes to take measures to implement and consolidate: a) national laws, ethical guidelines, regulations and Codes of conduct that could eradicate conflicts of interest, to focus on the methods of recruitment based on merit and produce measures to ensure reasonable living levels;
b) systems of recruitment of staff in the public service and acquisition of goods and services by the State in order to ensure or enhance their transparency and efficiency as well as their characters open and fair;
c) laws and other measures deemed necessary to ensure an effective and adequate protection of persons who, acting in good faith, provide information on acts of corruption;
(d) the laws and regulations to discourage bribery of national and foreign public officials;
(e) the participation of civil society and non-governmental organizations (NGOs) to the efforts of prevention and detection of acts of corruption);
f) collection systems of government revenue which will eliminate opportunities for corruption, as well as the non-payment of fee and put in place regulations that require companies and organizations keep accounts and to adhere to international standards of financial control;
(g) the measures that oblige public officials to declare their assets, debts and provide copies of their tax returns). The rules of income tax must extend at least to their spouses, their children and people who are dependent on them. Provisions would need to be taken to ensure that the information provided will not be improper use;
(h) specialized bodies responsible for the fight against corruption haves independence and capacity requirements which guarantee adequate training to their staff, and the financial resources necessary for the fulfilment of their missions; and i) the freedom of press and the right to information;
j) policies to ensure that public officials do not take official decisions related to a private company in which they have an interest.
Section 6. -Criminality 1. This Protocol is applicable to the following acts: a. failure of a public official to ask or accept, either directly or through an intermediary, any object with a monetary value, such as a gift, promise or advantage of any kind, whether for himself or for another person, in Exchange for the fulfillment or the omission of an act in the exercise of its functions;
b. due to offer or grant, directly or indirectly, to a public official, an object that has a monetary value as a gift, favour or an advantage of any kind, either for himself or for a third party, in Exchange for an act or omission in the exercise of its functions;
v. the fact of promise, offer or give, directly or indirectly, any unfair advantage to any person who declares or confirms that it can exercise an influence on decisions or actions of persons occupying positions in the public or private sector, that this influence has been exercised or not, or whether or not the supposed influence has led to result;
d. the fact for anyone who declares or confirms that it can exercise an influence on decisions or actions of persons occupying positions in the public or private sector that this influence is exercised or not and whether or not it leads to the desired result, request or accept, directly or indirectly, any advantage unfair on the part of anyone.
e. the diversion by a public official of his original subject, for its own account or on behalf of a third party, of any movable or immovable property, property titles and values belonging to the State, an independent agency or an individual, that this public official has received under its position and for the purposes of Administration, for their conservation or for other reasons.
2. each State party shall adopt legislative or other measures as may be necessary to establish as criminal offences in accordance with its domestic law, the acts of corruption described in this Protocol.
3. a) illicit enrichment consisting of a significant increase in the assets of a public official that he cannot reasonably justify from revenue collected legitimately in the exercise of its functions will be considered an act of corruption for the purposes of this Protocol by those States Parties which introduced it as such.
(b) any State party that will however not confer a character of criminal offence illicit enrichment will assist and cooperate with other States in relation to this offence, as stipulated in the Protocol.
4. each State party shall adopt such legislative and other measures that may be necessary to establish as offences liable to criminal sanctions or of a different nature under its internal law, the acts or omissions following if they are perpetrated intentionally, in order to achieve, conceal or disguise the offences listed in the Protocol: a. the creation or use of a fracture or any other document or accounting record containing false information or incomplete information.
b. failure to include intentionally leave traces of a payment.
(5 each State party shall adopt legislative or other measures which may be necessary to establish as criminal offences: a) the fact of promise to offer or give any unfair advantage to officers or employees of a company of private sector for themselves or for third parties, directly or indirectly so that they perform or refrain from performing an act in violation of their duties;
(b) the fact for executives or employees ask private undertaking or to receive directly or indirectly from any person, any advantage unduly for themselves or for third parties, so that they perform or refrain from performing an act in violation of their duties.
6. each State party shall adopt legislative or other measures which prove necessary to make punishable complicity in any criminal offence established in accordance with the provisions of this Protocol.
7. this Protocol shall be applicable also by mutual agreement between two or more States Parties, to any other Act of corruption which would not be described in these provisions.
Section 7. -Laundering of the proceeds of corruption and the neighbouring offences 1. Each State party shall adopt, in accordance with the fundamental principles of its domestic law, the legislative or other measures necessary to establish as criminal offences: has) (i) the conversion or transfer of property with that prostitute knows that they are the proceeds of crime, for the purpose of concealing or disguising the origin illegal of the property or of helping any person who is involved in the commission of a predicate offence to evade the legal consequences of his actions;
(ii) the concealment or disguise of the true nature, origin, location, available, movement or ownership of property which are related with the author knows that they are the proceeds of crime.
(b) and, subject to the basic concepts of its legal system: i) the acquisition, detention or the use of property which at the time of receipt, one who acquires, holds or uses them knows they are the proceeds of crime;
(ii) participation in any of the offences established in accordance with this Article or any other association, agreement, attempt or complicity by providing assistance, assistance, or advice for its commission.
2. for the purposes of the application of paragraph 1 of this Article: a) each State party will endeavour to be regarded as predicate offences the offences defined in articles 6, 7 and 12 of the Protocol;
(b) for the purposes of paragraph (a), predicate offences shall include offences committed inside and outside the territory under the jurisdiction of the State party in question. However, offences committed outside the territory under the jurisdiction of a State party constitute a predicate offence only when the relevant conduct is a criminal offence under the domestic law of the State party applying this article had it been committed within its territory;
(c) where the fundamental principles of the domestic law of a State party so require, it can be arranged that the offences set forth in paragraph 1 of this article shall not apply to persons who committed the predicate offence;
(d) knowledge, intent or motivation, as constituent elements of an offence set forth in paragraph 1 of this article may be inferred from objective factual circumstances.
Section 8. -Protection of witnesses 1. Each State party shall take appropriate measures within its means to protect effectively against any reprisals or intimidation witnesses in legal proceedings and that reflect in the case of offences covered by this Protocol, and, where appropriate, to protect their families and their relatives.
2. the measures envisaged in paragraph 1 of this Article may include, inter alia, without prejudice to the rights of the accused, including the right to the protection of individual freedoms: a) establishing procedures for the physical protection of such persons, as much as it is necessary and feasible, their installation in an another home and the authorisation, if need be, non-disclosure or the limited disclosure of information about the identity of these people and where they are located;
(b) the establishment of rules of evidence permit the witness to file safely in him to testify using techniques of communication such as links video and other appropriate means.
3. States Parties shall consider switching agreements or arrangements with other States to provide a new home for the persons mentioned in paragraph 1 of this article.
4. the provisions of this article also apply to victims insofar as they are witnesses.
Article 9 -Assistance and protection of victims 1. Each State party shall take appropriate measures within its means to assist and protect victims of crimes covered by this Protocol, particular in cases of threat of retaliation or intimidation.
2. each State party will introduce appropriate measures to allow the victims of the offences covered by this Protocol to obtain redress.
3. each State party, will also, under its domestic law, enable the victims to expose their opinions and concerns and that they are examined or taken into account in stages appropriate legal proceedings against the perpetrators of the offences in a manner which is not prejudicial to the rights of the defence.
Section 10. -Sanctions and measures 1. Each State party shall provide effective and dissuasive measures and penalties proportionate to the offence, including, when committed by natural persons, of custodial sanctions of freedom giving rise to extradition.
2. each State party shall ensure that any established liability under Article 11 below, entities are sanctions effective, proportionate to the infringement and dissuasive criminal or non-criminal nature including penalties.
3. each State party shall adopt legislative or other measures which may be necessary to enable it to confiscate instruments and products of the criminal offences defined in accordance with the provisions of this Protocol, or property whose value corresponds to those products.
Section 11. -Liability of legal persons 1. Each State party shall adopt measures, if necessary, consistent with its legal principles, to establish the liability of legal persons for their participation in the offences defined in Articles 6, 7 and 12 of the Protocol.
2. According to the legal principles of each State party, the liability of legal persons may be criminal, civil or administrative.
3. such liability shall be admitted without prejudice to the criminal liability of the natural persons who have committed offences.
4. each State party shall ensure, in particular, that legal persons held liable for offences under this article are liable to criminal or non-criminal sanctions effective, dissuasive and proportionate to the offence, such as financial penalties, prohibition on commercial activities, the order of liquidation, and placing under judicial supervision.
Section 12. -Acts of corruption concerning foreign public officials 1. Each State party will prohibit and sanction the fact offering or giving to a public official of another State, directly or indirectly, any object of worth such as gifts, promises or favours, in compensation for the performance by the agent of any act or omission in the exercise of its functions.
States who have established as criminal offences transnational bribery, for the purposes of this Protocol, would see this act as an act of corruption while the States that have not established such offences should, insofar as their legislation so allows, lend the assistance and cooperation provided for in this Protocol.
Article 13. -Seizures and forfeitures 1. Each State party shall adopt measures, if necessary, to enable: a) to the competent authorities to identify, find and seize property or the elements subject to possible forfeiture;
(b) confiscation of the proceeds of offences established in accordance with the provisions of this Protocol or of goods whose value corresponds to those offences.
2. in order to implement the measures to which he is made reference in this article, each State party will empower its courts to order availability or seizure of Bank, financial or commercial documents and will not invoke banking secrecy to refuse assistance requested by another State party.
3. the requesting State party shall undertake to not use information received for purposes other than those for which they were required.
4. consistent with their national laws, to the Treaty and other appropriate agreements, States Parties have a mutual assistance in the identification and seizure of the goods or obtained and which are drawn from the commission or used in the commission of offences.
5. to the extent permitted by its law, a State party, if it considers it appropriate, may transfer all or part of the goods specified in the first paragraph of this Article to another State which lent him his assistance in the conduct of investigations or prosecutions.
Section 14. – Extradition 1. Criminal offences falling within the scope of this Protocol are considered to be offences giving rise to extradition, and as being included in any Treaty of extradition in force between the parties. The parties undertake to include such offences in any extradition treaty.
2. a State party which receives a request for extradition from another State party with which it has not concluded an extradition treaty, may consider this Protocol as a legal basis for the extradition, if the offences fall within the scope of application of this Protocol.
3. States Parties which do not make the execution of a measure for extradition conditional on the existence of a treaty recognizing the offences established in accordance with the provisions of this Protocol as the offences giving rise to the extradition.
4. extradition is subject to the conditions laid down by the laws of the requested State party or by the extradition treaties in force, including the reasons underpinning the State party to reject the extradition request.
5. If extradition sought in accordance with this Protocol is refused on the basis of the nationality of the person sought, or because the requested State considers itself competent in this case, the said State shall promptly submit the case to its competent authorities for the purpose of prosecution, unless other provisions have been agreed with the requesting party and informed in good time of the final result.
Section 15. -Mutual assistance and cooperation between the departments responsible for the application of Act 1. In accordance with the provisions of their national law and the treaties in force, the States Parties undertake to assist each other by the treatment of requests from the competent authorities and to implement measures necessary to facilitate the procedures and formalities relating to the investigation and prosecution of acts of corruption.
2. States Parties undertake to assist each other as much as possible in the field of cooperation between the law enforcement agencies, to strengthen measures to prevent, detect and punish acts of corruption.
3. the provisions of this Protocol shall in no case affect bilateral or multilateral treaties governing mutual assistance in criminal matters. No provision of this Protocol shall be considered as preventing a State party to give priority to the forms of mutual assistance provided by its national legislation and its agreements with another State party.
4. States Parties shall consider concluding bilateral or multilateral agreements which provide, in relation to matters that are the subject of investigations, prosecutions or judicial proceedings in one or more of the States, that the competent authorities concerned set up mixed commissions of inquiry.
In the absence of such agreements or arrangements, joint investigations may be undertaken on the basis of the case by case. States Parties involved shall ensure that the sovereignty of the State party on whose territory such investigation is carried out, is fully respected.
5. If permitted by the basic principles of its domestic legal system, each State party shall take the necessary measures to allow the appropriate use of other special investigative techniques.
6. States Parties conclude, if necessary, bilateral or multilateral agreements suitable for the use of these special investigative means of cooperation at the international level.
7. in the absence of an agreement or arrangement as provided for in paragraph 6 of this Article, decisions to use these special techniques of investigation at the international level should be taken on a basis of case by case and can, if necessary, take into account agreements and financial arrangements in relation to the exercise of jurisdiction by the States Parties concerned.
8. States Parties may not refuse mutual legal assistance on the basis of banking secrecy.
Section 16. -Central authorities 1. Cooperation and mutual assistance advocated by this Protocol, each State party shall designate a central authority.
2. the central authorities will be responsible for formulation and receipt of requests for cooperation and assistance provided for in this Protocol. They can directly communicate with each other.
Article 17. -Application in time the acts of corruption committed before the entry into force of this Protocol may, at the request of the States Parties, make subject to judicial cooperation, subject to respect for national and international standards on extradition, and respect for the principle of non-retroactivity of the law.
Section 18. -Harmonization of national legislations States Parties undertake to harmonise their national legislation to achieve the goals and objectives of the present Protocol.
Section 19. -Technical commission 1. States Parties undertake to establish a technical commission in accordance with the provisions of Article 22 of the revised ECOWAS Treaty, which will be called the Anti-Corruption Commission. This commission shall: a) supervise the application of the Protocol both at national and regional level;
(b) collect and disseminate information among States Parties;
(c) regularly organize relevant training programmes;
d) provide to States Parties any appropriate additional assistance.
2. the technical commission will include experts from the ministries of finance, Justice, the Interior and the security of States Parties.
3. the Technical Committee will meet at least two (2) times per year.
4. the technical commission shall establish an appropriate balance between privacy and transparency in its activities, its deliberations should be carried out on the basis of consensus and cooperation between its members.
5. the meeting of the technical commission reports will be submitted to the Council of Ministers.
Section 20. -Relations with other treaties no State party may not oppose another State party of previous provisions contrary contained in other legal instruments.
Section 21. -Notification in the context of the application of Articles 7, 13 and 18, States Parties shall notify in advance their provisions internal y related to the Executive Secretariat of ECOWAS, which will inform in turn the other States Parties.
Section 22. -Ratification and entry into force this Protocol shall enter into force upon its ratification by at least nine (9) States signatories, in accordance with the constitutional rules of each signatory State.
Section 23. -Authority depositary and registration this Protocol and all the instruments of ratification and accession shall be deposited with the Executive Secretariat of ECOWAS, who shall transmit certified copies meet all States Parties, and shall notify them of the dates of deposit of the instruments of ratification and accession. The Secretariat Executive will register this Protocol with the Organisation of African Unity, of the United Nations and all other organizations as the Council may determine.
Section 24. -Accession this Protocol is open for accession by any other State.
Section 25. -Amendments and revision 1. Any State party may submit proposals for amendment or revision of this Protocol.
2. the proposals for amendment or revision will be submitted to the Executive Secretariat which shall communicate to States Parties within a period of thirty (30) days of their receipt. Such proposals will be considered by the Conference at the expiry of a period of three (3) months granted to States Parties.
3. any amendments or revisions adopted by the Conference are subject to all States Parties for ratification according to their respective constitutional procedures. They will enter into force in accordance with Article 89 of the Treaty.
Section 26. -Denunciation 1. Any State party may denounce the present Protocol. The instrument of denunciation shall be deposited with the Executive Secretariat. The Protocol ceases to have its effects on States Parties which will be denounced, one (1) year after the deposit of the instrument of denunciation.
2. for a period of one (1) year, the State which withdraws from this Protocol will continue to comply with its provisions and will be required to fulfil the obligations entrusted to it under this Protocol.
Section 27. -Settlement of disputes 1. Any dispute concerning the interpretation or application of this Protocol shall be settled amicably by direct agreement between the Parties.
2. in the case of failure to settle the dispute, it is worn by one of the parties, by any State party or by the Conference to the Court of Justice of the community whose decision is binding and without appeal.
In witness whereof, we heads of State and Government of the economic community of West African States, have signed the present Protocol.
Made in Dakar, on December 21, 2001, in a single original in French, English and Portuguese, three (3) text being equally authentic.
H.E. Mathieu KEREKOU President of the Republic of Benin H.E. José Maria Pereira NEVES Prime Minister, head of Government of the Republic of Cape Verde S. E. Yahya A. J. J. JAMMEH President of the Republic of the Gambia S. E. Lamine SIDIMÉ Prime Minister of the Republic of Guinea S. E. Monie R. CAPTAN Minister of affairs foreign for and by order of the President of the Republic of Liberia S. E. MINDAOUDOU Aichatou (Mrs.) Minister of Foreign Affairs and by order of the President of the Republic of Niger S. E. Blaise COMPAORÉ President of FASO President of Council of Ministers S. E. Abou Drahamane Sangaré
Minister of State, Minister of Foreign Affairs for and by order of the President of the Republic of Côte of d'Ivoire S. E. John Agyekum KUFUOR President of the Republic of Ghana S. E. Koumba Yala Kobde NHANCA President of the Republic of Guinea Bissau S. E. Alpha Oumar KONARÉ President of the Republic of Mali S. E. Olusegun OBASANJO President and Commander in Chief of the Armed Forces of the Republic Federal Nigeria S. E. Abdoulaye WADE President of the Republic of Senegal S. E. Alhaji Dr. Ahmad Tejan KABBAH President of the Republic of Sierra Leone S. E. Gnassingbe EYADEMA President of the Togolese Republic