A/HRC/4/71
page 17
39.
Mr. Matsheza began by identifying ways in which corruption is the outcome of State
practices: the politicization of anti-corruption measures by government officials who level false
charges against their predecessors or rivals; law enforcement agents who seek and then abuse
special investigation powers. Mr. Matsheza then reviewed UNCAC for weaknesses that might
create a potential for human rights abuses and concluded that its provisions provide for human
rights protections. Mr. Matsheza continued, however, that UNCAC is considerably more
complex than most human rights treaties, making it difficult for States to understand their
obligations, to recognize that anti-corruption and human rights are not mutually exclusive, and to
implement its provisions. He added that since the Convention came into force, UNODC has
been inundated with requests for technical support in a variety of areas and that the requests
indicated that some Member States are seeking quick fixes, while others are attempting to do too
much in too short a time without developing necessary oversight and supervisory mechanisms.
Mr. Matsheza cautioned that hastily developed legislation and national strategies have the
potential to provide loopholes that could lead to human rights violations. He concluded by
noting that UNODC is aware of these potential pitfalls and is developing a legislative and
technical guide to assist Member States to unpack UNCAC’s requirements.
40.
Roberto Saba, Executive Director, Association for Civil Rights, acting as an expert,
cautioned that anti-corruption measures that undermine the rule of law and violate human rights
can be counterproductive. Although Governments and civil society complain about human
rights and civil rights protections limiting anti-corruption policies, Mr. Saba believes that some
of the best tools for fighting corruption are found in these very protections. By nature,
corruption occurs in secret and while the measures used to penetrate that secrecy (e.g.:
surveillance, wire-tapping) arguably inherently violate human rights, more often they do so
because they are selectively applied, entailing discrimination and profiling. Mr. Saba identified
four rights violations that are likely to be involved: (a) freedom of expression (of critics);
(b) freedom of information (held by Government); (c) freedom from State interference in private
life; and (d) due process of law. He contended that although they may be effective against
corruption, in the long run even “minor” restrictions of rights can subvert the rule of law and, as
a result, efforts to eliminate corruption. As such, disregard for rights in the name of combating
corruption is both morally and strategically wrong. Drawing from Argentina’s experience,
Mr. Saba noted the significance of fair trials in the country’s transition to democratic rule in
1983. By holding trials widely recognized as just, the Government demonstrated to the people
that the rule of law had been re-established and would apply to everyone. This was vital as the
selective application of law is the essence of corruption. Moreover, to do otherwise undermines
the moral authority, credibility and effectiveness of the fight against corruption, and provides to
those who commit corrupt acts the opportunity to present themselves as victims of discrimination
and persecution.
41.
The discussion that followed affirmed that corruption compromised human rights. The
appropriation of public money impairs a country’s development and welfare and, as a result, the
human rights of its citizens. However, participants expressed the need to protect human rights in
the course of combating corruption. One participant emphasized the need to prevent the
victimization of innocent people via entrapment, surveillance and other special investigative
techniques. Another participant commented that although UNCAC addressed this issue there
was a need for detailed guidelines on how to protect human rights while working against
corruption. A related point was raised regarding the implications of a weak judiciary that is poor
at achieving a balance between protecting the rights of the accused and carrying out justice, and
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