Q50.

Are there effective measures in place to discourage facilitation payments (which are illegal in almost all countries)?

50a. Legal framework

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SCORE: 0/100

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50b. Enforcement

Score

SCORE: NA/100

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50c. Prevalence

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The Anti-Corruption Law of 2006 provides clear evidence that facilitation payments are illegal. Art. 25 prohibits the act of promising to offer or grant an official an undue advantage for him to perform or refrain from performing any act in the performance of the official’s duties. Moreover, Art. 38 stipulates that gifts or any undue advantage from a person likely to influence the processing of a procedure or transaction related to his duties are punishable by law (1). The articles in the Penal Code on corruption (2) refer to the Anti-Corruption Law and no further regulations were found.

No investigations or prosecutions of cases in the defence institutions involving facilitation payments could be found in articles or reports, making it difficult to assess this question. Freedom House notes that there is political influence in the judiciary (1). Moreover, there are corruption cases, for example, linked to the state hydrocarbon company Sonatrach that have been prosecuted (2), while the former head of the company and Minister of Energy has not been prosecuted although there had been evidence that he received bribes (3).

According to the Business Anti-Corruption Portal, bribery and facilitation payments are common in Algeria; although, they are illegal (1). A report from the US Department of State notes that some companies follow their internal controls against the bribery of government officials, while others supposedly offer bribes (2).

Facilitation payments are illegal in Angola, as stated in the 2010 Public Probity Law, the Criminal Code and the 2014 Money Laundering Law (1), (2).

Even though facilitation payments are illegal, they are widespread; in recent years very few cases have been prosecuted. There is no evidence that several prosecution cases of foreign officials in other jurisdictions for bribery and illegal facilitation payments have been followed up in Angola. Under President João Lourenço, there have generally been new calls to end impunity to address corruption, but it remains to be seen how this plays out in practice (1), (2), (3).

For instance, in the last few years employees of foreign companies have been prosecuted in Brazil, Spain, and the United Kingdom on charges of bribery and illegal facilitation payments in Angola; however, no prosecution cases were opened in Angola against Angolan officials allegedly involved (1).

The practice of facilitation payments to accelerate delivery of or simply to gain access to public services, as well as for doing business is widespread and part of the commonly known “gasosa” culture in Angolan society (1).

Article 31 of the Law N° 004 (2015) stipulates that “it is prohibited for public agents mentioned in Article 3, in the case of their function, to accept donations, presents and other or in-kind except conventional hospitality and minor presents, with monetary value less than the maximum authorized in Council of Minister.” Article 32 (1) makes it clear that if the monetary value of the present is higher than the maximum authorized, and the receiving public agent can not refuse due to protocol reasons, they should declare it, by informing his her hierarchy and the ASCE-LC. Article 23 (2) states that “the present in question is sent back to the national asset office, to the local governance office for which the beneficiary works for, or any other recognized institution.” The present is then recorded and the reference number is sent to the ASCE-LC. Additionally, the sanction of facilitation payments lies under Article 33. Burkina Faso has made significant progress in the battle against corruption through the adoption of Law N° 004 (2015). However, the BTI report states that its enforcement is weak because of a lack of information, a tradition of impunity and the weakness of institutions (1), (2).

According to the Business Anti-Corruption Portal, enforcement of the law is weak (1), and institutions responsible for enforcing the law are ill-equiped (1), which makes it difficult to find and investigate corruption. The ASCE-LC (2) was provided with the constitutional right to both investigate and prosecute corruption. There is no evidence of the existence of a case that the ASCE-LC or any other oversight institution, has successfully investigated and prosecuted. Facilitation payments are still widespread in the country (3).

As mentioned before facilitation payments are somehow imbedded in social behaviours throughout the country. The 2018 BTI report made it clear, by stating that “corruption, including, facilitation payments, is widespread in all sections of the economy.” However, as opposed to other types of corruption, I must agree that eradicating facilitation payments would require both time and resources, as the practice is deeply embedded in cultural behaviours in most communities. Fortunately, the Law N°-004 is already ahead of schedule, as Article 32 (1) indicates institutions at the national and local level, where facilitation payments with a value above the maximum authorized, must be declared and kept (1), (2).

The Penal Code Law No. 65-LF-24 of 12 November 1965 and Law No. 67-LF-1 of 12 June 1967) as amended by LAW No. 2016/007 of 12 July 2016 [1] criminalises and punishes facilitation payments. Article 312 says, “Corruption of the employee is punished with imprisonment for one to three years and a fine of 50,000 to 500,000 francs or either of these two penalties only if any paid employee, without the authorisation of his boss, receives donations in any form whatsoever for agreeing or promising to carry out or refrain from carrying out his responsibilities” [1].

The Penal Code specifically addresses the issue of facilitation payments. Article 312 of the Penal Code prohibits any employee, without the permission of his or her boss, from receiving funds to carry out or refrain from carrying out a service [1]. This is, however, hardly enforced when it comes to the defence and security institutions [2] [3]. There has been widespread corruption among senior military officials including the alleged involvement of the former Minister of Defence in a corruption scandal [4].

According to Business Anti-Corruption Portal, “Facilitation payments and gifts are also addressed in Cameroon’s legislation, yet insufficient implementation of anti-corruption legislation coupled with impunity among public officials has exacerbated the levels of corruption in the country” [5].

Transparency International Helpdesk reports that “According to Freedom House (2015), ‘Bribery is commonplace in all sectors, from gaining school admission to fixing traffic infractions’ (Freedom House, 2015)… and is common practice at all levels of the Cameroon state and business sector” [6].

According to the 2017 US State Department Human Rights Report, “The law provides criminal penalties for corruption by officials, although these were seldom enforced.” The report also noted that “individuals reportedly paid bribes to police and the judiciary to secure their freedom. Police demanded bribes at checkpoints, and influential citizens reportedly paid police to make arrests or abuse individuals with whom they had personal disputes. There were reports some police associated with the issuance of emigration and identification documents collected additional fees from applicants.” The report added that “Some officers convicted of corruption were relieved of their duties but continued to be paid due to weak oversight, accountability, and enforcement mechanisms for internal disciplining” [7].

According to the 2017 Investment Climate Statement, “In some extreme instances, civil servants blatantly violate laws and then offer bribes to State inspectors so that they are not investigated and prosecuted… [bribery] continues to plague the civil service at almost every level (government procurement, award of licenses or concessions, transfers, performance requirements, dispute settlement, regulatory system, customs or taxation)” [8].

There is also a report on the details of an ongoing investigation in France concerning suspicions of corrruption and bribery between the former defence minister and MagForce regarding defence contracts [4].

Corruption and the practice of facilitation payments is widespread in the country [1]. Almost every sector and ministerial department has been affected by this practice. It ranges from being admitted into a professional institution including the police and the miltary, to giving bribes to police at checkpoints [2]. There have been reports of police issuing identification papers who were paid high sums of money that went into their own pockets [3]. When dealing with customs officials, companies usually evade taxes by giving bribes to these officials [4]. Companies have to agree to give a certain percentage (usually 30%). [3].

Transparency International Helpdesk states that “According to Freedom House (2015), ‘Bribery is commonplace in all sectors, from gaining school admission to fixing traffic infractions’ (Freedom House, 2015)… and is common practice at all levels of the Cameroon state and business sector” [1].

According to the 2017 US State Department Human Rights Report, “Individuals reportedly paid bribes to police and the judiciary to secure their freedom. Police demanded bribes at checkpoints, and influential citizens reportedly paid police to make arrests or abuse individuals with whom they had personal disputes. There were reports some police associated with the issuance of emigration and identification documents collected additional fees from applicants” [3].

According to the 2017 Investment Climate Statement, “In some extreme instances, civil servants blatantly violate laws and then offer bribes to State inspectors so that they are not investigated and prosecuted… [bribery] continues to plague the civil service at almost every level (government procurement, award of licenses or concessions, transfers, performance requirements, dispute settlement, regulatory system, customs or taxation” [5].

The Criminal Code and in Order No. 2013-660, both documents consider the soliciting, offering and receiving of payments for the performance or non-performance of a public official’s function, a criminal offence. As per the Criminal Code (Law No. 81-640, Instituant le Code Pénal), the act of offering, giving or promising a bribe to a public official or the act of soliciting, authorizing or receiving a bribe is considered a criminal offence. This type of petty corruption is addressed in Section 4 (Avantage illégitime), Articles 231-235, of the Criminal Code. For example, Articles 233 and 234 consider the act of soliciting or paying a public official to perform an official function is codified as a crime (1) :

“Art. 233 – Any public official will be punished with imprisonment from three months to one year who is found guilty of soliciting or accepting a payment in cash or in kind for himself or for a third party, as compensation for an official act already performed.
Art. 234 – Whoever seeks to obtain the accomplishment, the execution or the postponement of an act through favors or benefits provided for in Article 233, or who uses threats, promises, payments, gifts or presents or gives in to solicitations for corruption, even if he/she has not taken the initiative, will be punished with the same penalties as those provided for individuals convicted of corruption, whether the coercion or corruption has or has not produced its effect. Article 233 punishes the individual who uses gifts or presents or gives in to solicitations tending to pay for an act already performed by one of the individuals referred to in Article 232” (1).

Order No. 2013-660 (Relative à la prévention et à la lutte contre la corruption et les infractions assimilées) of 20 September 2013 includes bribery as a criminal offence along with influence peddling, embezzlement and other acts of corruption. The articles on facilitation payments are contained in Title IV (Suppression of acts of corruption and related offences), Chapter 1, Sub-section 1 (Corruption d’Agents Publics Nationaux), Articles 28-30. For example, Article 30 stipulates terms of jail and monetary penalties for public officials who accept facilitation payments (2). Article 30 states:

“Any public official shall be punished with 1-5 years of jail and penalties ranging from 100,000 to 1 million FCFA for soliciting or accepting a cash payment or in-kind payment (rétribution en espèces ou en nature) for him/herself or for a third party for an official act that has already been performed” (2).

The clarity of the language in Articles 231-235 of the Criminal Code and the inclusion of bribery among the acts of corruption in Articles 28-30 of Order No. 2013-660 are justified.

IIvorian authorities have successfully initiated and prosecuted roadblock racketeers that demanded facilitation of payments, particularly the cases investigated by the military prosecutor in Abidjan in 2018. However, there is not enough evidence of a total absence of undue political influence since the anti-racketeering campaign has been a longstanding policy priority likely handed down by the executive. According to a March 2016 report by TI’s Anti-Corruption Helpdesk, there are doubts about the effectiveness of the Anti-Corruption Brigade (Brigade de Lutte contre la Corruption, BLC), launched in 2012, and the Anti-Racketeering Unit (Unité de Lutte contre le Racket, ULR), set up in 2012. The ULR has been tasked with ending the facilitation payments demanded by police agents (and their higher-ranking officers) at roadblocks in isolated areas of Côte d’Ivoire (1). However, in November 2018, Ange Kessi was widely reported to have ordered the dismantling of 33 illegal roadblocks operated by corrupt members of the police forces. Several higher-ranking brigade commanders were also successfully prosecuted in these cases at the Military Court of Abidjan (Tribunal Militaire d’Abidjan, TMA). This proves that both the investigation and the prosecution were effective in dismantling roadblocks that had been set up in the aftermath of the post-election crisis of 2010-2011 (2).

The consistent investigations, backed by the political will of the Executive, has allowed the Military Prosecutor to successfully pursue the anti-racketeering campaign. A biographical article on Ange Kessi published in Jeune Afrique (May 2016) explained how he was able to prosecute cases involving petty corruption. Kessi has also gained iconic status for his prosecution of crimes by defence personnel, including former military commanders such as Wattao and Chérif Ousmane, both of whom supported President Ouattara during the post-election crisis of 2010-2011. The article characterizes Kessi as an activist prosecutor stating:

“From his offices in Tower A of Plateau Administrative City in Abidjan, Colonel Kessi goes through his files every day. They include cases involving the abuse of power, racketeering, murders … On his table he has piled up the proceedings against soldiers, gendarmes, policemen. During trial proceedings and in the field, he has relentlessly tracked the evidence and inconsistencies” (3).

The reality in Côte d’Ivoire, where so-called facilitation payments are highly prevalent. At the same time, some progress has been made putting an end to racketeering at roadblocks, which symbolized corruption for many Ivorians. Facilitation payments, known in French as ‘backchichs’, ‘pots de vin’ or ‘commissions officieuses’, are conveyed by the generic catch-all term of ‘racket’. This is the kind of petty corruption (petite corruption) that has been taking place at roadblocks, particularly in rural districts.

The 2018 Bertelsmann’s Foundation report on Côte d’Ivoire (BTI 2018) characterizes the prevalence of facilitation payments as follows:

“The severe economic downturn during the many years of political-military conflict led to higher levels of generalized corruption (i.e. petty and bureaucratic) and venality at all levels of public administration, especially in the case of judicial proceedings, contract awards, and customs and tax issues” (1).

In its Human Rights Report from 2017, the US State Department characterized corruption in Côte d’Ivoire in the following terms:

“There were also numerous reports of judicial corruption, and bribes often influenced rulings. By September 20, no magistrate or clerk had been disciplined or dismissed for corruption. On the other hand, magistrates who advocated independence or acted in a manner consistent with judicial independence were sometimes disciplined” (2).

An article published by Le Monde in October 2017 cited a recent Afro barometer study showing that 47% of Ivorians polled (out of a total of 1,200 individuals) had made a facilitation payment to a police agent in the 12 months preceding the study. Another 31% of pollsters had made a facilitation payment to a public official to obtain a document. The most prevalent cases involved the security forces, Customs officials and tax collectors. The situation was described by those polled as ‘endemic’ (3).

Although facilitation payments are not named explicitly in the law, the Illicit Gains Law no. 62 (1975) has a broad definition of “illicit profiteering” that includes any money obtained as a result of abuse of public position (see the assessors’ comments section for a full translation of the article). This definition very broadly covers facilitation payments, and military personnel are subject to this law and its provisions under Law no. 45 (2011) (1) which gives military courts exclusive jurisdiction for prosecuting officers and personnel of illicit gains crimes as stipulated in the Illicit Gains Law no. 62 (1975) (2).

Although the law does criminalize all forms of profiteering that stem from the abuse of a public position, military personnel and officers can only be prosecuted by military courts and prosecutors, which lack the needed independence to effectively prosecute these cases, even in the face of strong evidence. All the military justice institutions are subordinate to the Defence Ministry, including military intelligence, military courts and the Military Police, and they are considered “administrative units” of the ministry (1). Accordingly, its independence is largely compromised, and it would then naturally come under the influence of top military executives as the minister of defence must be a military officer (4). However, the Illicit Gains Law no. 62 is not enforced, and there can be widespread facilitation payments (2).

According to our sources, facilitation payments are widespread at many levels and in almost every unit, mainly contracts and the industrial sector of the MoD (1), (2), (3). There are several cases from before this reporting period, such as the Mercedes Benz case and the military aircraft depot case, which suggest that facilitation payments are prevalent in the defence sector. The lack of independence and transparency of the military justice system and the increased political power of the military since 2013 does not allude to the fact that facilitation payments are currently less prevalent than they were before.

Section 240 of the Criminal Offences Act states that an officer is guilty of corruption if he is influenced by a “gift, promise, or prospect of any valuable consideration to be received by him, or by any other person, from any person whosoever” (1). Similarly, sections 244 and 245 criminalise the acceptance or offering of a bribe (defined as “any valuable consideration”). Despite not being explicitly mentioned, the facilitation of payments is illegal by the provisions of Section 240, 244, and 245 of the Criminal Offences Act.

Despite the judiciary being perceived as the second-most corrupt institution in Ghana (1), which leads to questions of its effectiveness, there have been cases of facilitation of payment successfully prosecuted. For instance, following the 2015 investigation of Anas Aremeyaw Anas, which exposed the corruption of the judicial system, 24 judges and magistrates were prosecuted and found guilty of bribery (2). Following another report by Anas in June 2018, the Ghanaian Football Association was dissolved for the facilitation of payments, the prosecution is currently ongoing (3).

The facilitation of payments is a widespread corruption practice in Ghana (1).

Bribery, including facilitation payments, is clearly prohibited by Article 30 of Law No. 35 of the year 1966, Officers Service Law of the Armed Forces, issued in accordance with Article 126 of the Jordanian Constitution [1]. In addition to that specific legislation that relates to the armed forces, Jordan has numerous legislations and regulations that prohibit bribery including facilitation payments. These include (1) The Civil Service Regulation No. 82/2013, (2) the bribery related provisions of the Jordanian Penal Code No. 16/196, (3) The Economic Crimes Law No. 11/1993, (4) the Anti-Corruption Commission Law No. 62/2006, and (5) The Higher Procurement Commission Regulation No. 50/1994 [2]. It is important to note here, whilst facilitation payments are clearly prohibited according to Article 30 of Law No. 35 of the year 1966, there are no sanctions defined by the Military Penal Code [3]. However, sanctions do exist within the Jordanian Penal Code. The Jordanian Penal Code’s definition of bribery clearly covers facilitation payments, as the code distinguishes between gifts or payments made for legitimate and illegitimate services. Therefore, facilitation payments would fall under the gifts or payments made in return of a legitimate service. Facilitation payments are strictly and clearly illegal.

The armed forces do not make the outcomes of their prosecutions public; there is in fact, no evidence of prosecutions within the armed forces at all. As explained previously, accusations levelled against the chief of the army were neither investigated nor prosecuted [1]. The corruption accusations by the association of retired military personnel against the armed forces [2] were not investigated or prosecuted. It is important to note here that corruption accusations were not related to either bribery or facilitation payments, instead most of them were related to embezzlement. Interestingly, cases of corruption often reported in the media are relevant to embezzlement, rather than bribery or facilitation payments. This could also be an indicator that bribery and facilitation payments are not as socially frowned upon as embezzlement. The fact that there were no cases of facilitation payments publicly discussed shows that there are clear failures to investigate or prosecute cases, even in light of strong evidence. The scoring also took into consideration the fact that Jordan is a country where Wasta and nepotism are rife [3].

In the armed forces, facilitation payments might happen and according to our sources, have happened before, but they are still very rare. They only happen at a very senior level and all news and rumors are speculations about possible facilitation payments across borders [1,2].

Facilitation payments are not explicitly outlawed in any of the laws related to Kuwait’s security agencies, but the security agencies must simply account for every dinar in the agreements they enter, including ones on intermediaries, according to Law no. 25 of 1996 (1, 2 and 3).

State auditors, a police official and an activist close to the Government say the security agencies often do make facilitation payments and that it is an open secret in the executive branch that does not scandalise anyone (1, 2, 3 and 4). No one is prosecuted or investigated for this. Because the practice is so accepted, no one appears to keep track of it and the officials could not give specific examples.

Auditors and an activist close to the Government say facilitation payments are effectively part of every arms procurement deal (1, 2, 3, 4 and 5).

Facilitation of Payment is illegal in Lebanon. The LPC criminalizes forms of bribery for public officials and lays down the provisions to regulate them (1). Punishments for acts of bribery include three-year imprisonment and a fine equal to three times the bribe (2).

It is not clear whether the investigated cases are regularly prosecuted because the LAF does not publish information about prosecutions (1). According to a source, the Military Police investigate and follow up on violations (2). Prosecutions and investigations of violations are pursued and enforced (2).

Facilitation payments are widespread in Lebanon due to ineffective bureaucratic procedures and lack of transparency and accountabilitiy. Bribery methods to speed up the process are percieved as a norm. Lebanon is among 20% worst countries in the world for corruption (1). Yet, LAF is percieved as the least corrupt institution by citizens (2).
In the defense sector, cases of bribery and corruption to enter the Military Academy have been present. However, the people linked to the bribery scandle were called for questioning in front of the Military Tribunal (3). Furthermore, facilitation payments at mid to senior levels are highly risky for officers, especially in positions with financial, budgetary, and procurment responsibilities. LAF Command has successively shown a willingness to penalize and punish officers who would do otherwise (4) (5).

The law is insufficiently clear on the issue of facilitation payments. The Penal Code specifically outlaws corruption and acts of bribery for all public servants, including military personnel. Article 121 states that “Anyone in either the performance or the obtaining of an act or benefits or favours, uses violence or threats, promises, offers, gifts or presents, or acts tending to corruption will be subject to the measures included in article 130, ‘five to ten years’ imprisonment and a fine of twice the value of approved promises or things received or requested, without that fine be less than 100,000 francs”.¹ Curiously, the 2014 anticorruption law makes no mention of facilitation payments.²

Corruption is so widespread within the state administration that cases of abuse are only occasionally investigated. As noted above, in the 2011 investigation, public funds were recouped, but no prosecutions occurred. Citizens are accustomed to paying small bribes to public officials to obtain services that everyone has the right to obtain free of charge.¹ 2 3 Citizens remark that they frequently incur demands for bribes of between 1,000 CFA and 10,000 CFA from civil servants to accelerate services or to certify legal documents.¹ Police and custom officials are also known to exact payments from motorists and people importing or exporting goods. The sheer scale of abuse means that the vast majority of cases go uninvestigated.¹ 2 3 The IMF says that “economic agents involved in bribery are seldom prosecuted. Embezzlement in public procurements is sanctioned by the criminal code, but there again prosecutions remain the exception rather than the rule. Administrative sanctions against bidders and holders of public contracts exist for cases of incitement to corruption or the commission of fraudulent acts. However, in practice, they are seldom or never applied”.4

Corruption is so widespread within the state administration that cases of abuse are only occasionally investigated. As noted above in the 2011 investigation, public funds were recouped, but no prosecutions occurred. Citizens are accustomed to paying small bribes to public officials to obtain services that everyone has the right to obtain free of charge.1,2,3 Citizens remark that they frequently incur demands for bribes of between 1,000 CFA and 10,000 CFA from civil servants to accelerate services or to certify legal documents.¹ Police and custom officials are also known to exact payments from motorists and people importing or exporting goods.4 The sheer scale of abuse means that the vast majority of cases go uninvestigated.1,2,3
The GAN Anti-Corruption Portal notes that “corruption is a high risk for businesses acquiring public licenses, permits or utilities. Businesses report that irregular payments in relation to public utilities commonly occur..4 Indeed, 18% of Malian survey respondents have paid a bribe or provided a favour in order to obtain public services in the past 12 months.5
Corruption is a high risk in land administration. Property rights are well defined in principle, but corruption in the Malian bureaucracy negatively affects the implementation of property rights in practice.6 This includes corrupt practices raising the transaction costs connected to obtaining a legal title and diverging concepts of ownership between nomads and the sedentary population that leads to frequent clashes between these two groups.6

Corruption in public services and authorities is explicitly prohibited by the Public Market Code. However the Public Market Code does no provide specific legislation to discourage facilitation payment (1)(2). Interviewees argued that facilitation payments were wide spread in several fields of public service, such as the police, local authorities, health, education (3)(4).

No evidence of specific legislation to discourage facilitation payment in the armed forces was found (1)(2).

The general lack of transparency surrounding the armed forces’ budget and financial management, coupled with the latest publicly available reference to the clear existence of facilitation payments within the Moroccan armed forces (A cable to the State Department sent in 2008 by the then American ambassador to Morocco) shows a wide use of facilitation payments within the military, especially in the Western Sahara region where most of the Moroccan armed forces are stationed), support the view that specific legislation might not exist, and that if it does, it is not made public and is not respected (5)(6).

Corruption in public services and authorities is explicitly prohibited by the Public Market Code(1)(2). However the Public Market Code does not provide specific legislation to discourage facilitation payments. Interviewees argued that facilitation payments were widespread in several fields of public service, such as the police, local authorities, health and education (3)(4).

No evidence of specific legislation to discourage facilitation payment in the armed forces was found (1)(2).

The general lack of transparency surrounding the armed forces’ budget and financial management, coupled with the latest publicly available reference to the clear existence of facilitation payments within the Moroccan armed forces (A cable to the State Department sent in 2008 by the then American ambassador to Morocco) show a wide use of facilitation payments within the military, especially in the Western Sahara region where most of the Moroccan armed forces are stationed and support the view that specific legislation might not exist, and that if it does, it is not made public and is not respected (5).

No evidence of successful investigations or prosecutions was found, due to the lack of specific legislation on the subject. Interviewees confirmed that there were clear failures to investigate or prosecute cases, even in the face of strong evidence.

This indicator has not been assigned a score due to insufficient information or evidence.

Corruption in public services and authorities is explicitly prohibited by the Public Market Code (1)(2). However the Public Market Code does not provide specific legislation to discourage facilitation payments. Interviewees argued that facilitation payments were widespread in several fields of public service, such as the police, local authorities, health and education(3)(4).

No evidence of specific legislation to discourage facilitation payment in the armed forces was found (1)(2).

The general lack of transparency surrounding the armed forces’ budget and financial management, coupled with the latest publicly available reference to the clear existence of facilitation payments within the Moroccan armed forces (A cable to the State Department sent in 2008 by the then American ambassador to Morocco) show a wide use of facilitation payments within the military, especially in the Western Sahara region where most of the Moroccan armed forces are stationed and support the view that specific legislation might not exist, and that if it does, it is not made public and is not respected (5).

Neither the 2003 Military Penal Code (1) nor the Public Penal Code (2) cover facilitation fees (paiement de faveur, paiement de facilitiation) explicitly (see question 35 for details on sanctions regarding corruption). Facilitation payments are therefore not criminalised. The law is not sufficiently clear on the issue of facilitation payments.

Since facilitation payments are not criminalised, this indicator has been marked Not Applicable.

It is difficult to evaluate with precision the extent of facilitation payments. However, some studies indicate that the practice is widespread, with some areas being affected more than others (1). For example, the police, who are public-facing in their roles, seems to be a particular concern (1). Moreover, paying an official to smoothen an administrative procedure is a widespread practice in Niger. The historical and traditional dimension of facilitation “gifts” is also to be taken into consideration and has been extensively analysed by researchers working on corruption (2).

Nigeria is a signatory to the United Nations International Convention Against Corruption (12.03). (UNCAC) (1). Nigeria is also a signatory to the African Union Anti-Corruption Convention. (16.12.03) (2). Both conventions have been ratified by Nigeria. Nigeria has no specific law regarding the bribery of “foreign officials” (1), (2). However, Nigeria has legislated against the soliciting or offering or receiving bribes of domestic officials. Apart from Section 98 of the Criminal Code, there is also the Independent Corrupt Practices Commission (ICPC), which also investigates and prosecutes giving or receiving of bribes by officials or any person (3). Although there is no specific provision dealing with facilitation payments, the scope of the Criminal Code Section 98 and the ICPC Act are sufficiently wide to cover facilitation payments (4). The law states that payments to any person for corrupt purposes, whether directly or indirectly through third parties, are prohibited by law. Section 18 of the ICPC Act 2000 provides that any person who offers to any public official or being a public official solicits counsels or accepts any gratification as an inducement or reward is guilty of an offence and shall on conviction be liable to five years imprisonment (3).

It is worth observing that despite the prohibition of such payments under the Criminal Code and other laws, there has not been a single conviction in 40 years with regards to the crime of facilitation (1).

The recent case of the MTN and the alleged payments made to public officials who are currently being investigated suggests that facilitation payments do happen in some areas where high-value contracts are at stake such as in the oil sector. Another recent example of this is the Malabo case (1), (2).

According to Omani law, bribery and facilitation payments are strictly forbidden and criminalized (1), (2), (3), (4).

Cases of payment facilitation could be investigated but not persecuted or taken seriously (1). This is a result of political influence in the process of decision making. There are no examples of investigations or failures to investigate or prosecute cases of facilitation payments in the defence or security sectors available for the public, which indicates that there is no media coverage for such cases (2). There are no media reports indicating failures to investigate or prosecute, neither are there any media reports of prosecution relating to facilitation payments in the defence or security sectors (3), (4), (5). No concerns by independent commentators over the lack of enforcement of the laws above were identified, however strict restrictions on Omani media and civil society undercut the existence of independent commentators (6), (7).

There is no evidence to suggest that facilitation payments are prevalent in Oman. According to our sources, there are very few cases which indicate it is rare, and not prevalent. This is because Omani society relies on tribal and familial connections rather than payments (4), (5). Anti-corruption portals advising international businesses on Oman emphasise the low corruption risk in Oman including within the security forces (1), (2). The Export.Gov website advises that “US businesses do not identify corruption as one of the top concerns of operating in Oman” (2). Media reports suggest corruption levels are decreasing, and commitments made by the sultan since the protests in 2011 have seen explicit commitments to combatting corruption, including facilitation payments (3). Although there is a lack of coverage on defence and security sectors, there is no indication that facilitation payments are prevalent.

Facilitation payments are strictly illegal in both civilian and military service laws. It is considered bribery and not a facilitation payment (1).

There has not been a case where an investigation or prosecution was conducted, even in the face of strong evidence of facilitation payments (1). Some payments can be in the form of gifts. Therefore, concerns have been expressed by a range of independent commentators and CSOs (2), (3).

Facilitation payments may happen (1), (2), but it is not a widespread practice. According to the ACC report, there have been some cases of illicit practices in the form of payments (22 cases in 2017) (3).

Facilitation payments are strictly illegal in Qatar. Article 156 of the Penal Code stipulates that ‘a penalty of imprisonment for a period not exceeding ten years shall apply to any public officer involved in collecting the fines, fees, taxes or the like, who asks for or takes non-due amounts or amounts exceeding the due payments with knowledge of the facts’. [1] This strict prohibition clearly sets out the legal framework for dealing with facilitation payments within the country, and that also applies to the defence sector. [2,3,4,5]

Despite the lack of information about facilitation payments, our sources confirm that cases may be investigated but are not often successfully prosecuted. [1] There is credible evidence to indicate undue influence in the decision-making process. [2] Qatar imposes harsh measures on public officers’ involvement in corruption, however, it is not possible to tell whether these measures are being enforced in all cases. [3]

Facilitation payments are very rare in the defence sector. There is no way of knowing whether such things happen at a senior level. [1] In general, no facilitation payments take place as most activities are done within closed circles and to known parties. [1,2]

According to our sources, facilitation of payments is prohibited by law, and the Code of Conduct of the military and civil personnel (1), (2). However, these laws are not very clear and do not specifically provide a mechanism of how to deal with the facilitation of payments (2). According to the Code of Conduct for civilian personnel, officials are prohibited from receiving gifts with relation to their public functions (3). However, the code does not specifically address the issue of facilitation payments.

There is a clear failure in investigating corruption cases of payment facilitation (1). One source claimed, “50% of procurements include facilitation payments” (2). Although the officials are aware of that, there are no measures taken. There is no publicly available information on procedures to investigate facilitation payments in Saudi Arabia, and they have been known to occur. In the past authorities have turned a blind eye to facilitation payments in the military; for example, in the case of GPT Special Project Management’s contract with SANG (3).

Traditionally, facilitation payments have been considered part and parcel in the local business environment (1), (2), (3). This includes the widespread use of middlemen and fixers in defence procurement, who have been known to receive kickbacks for facilitating deals between foreign defence companies and the Saudi government (4), (5). There are signs that the Saudi government wants to root out such practices, for instance, the establishment of the General Authority for Military Industries (GAMI). GAMI is an industry body created in August 2017, billed as a one-stop-shop for procurement (1).

Facilitation payments are punished according to Articles 82 to 94 of the Penal Code, penalising the corrupter, the corrupted and the intermediary between the two. It punishes both positive and negative acts which include donations or promises of donations and gifts or advantages of any kind, whether for the purpose of active or passive corruption. Similarly, the Penal Code penalises acceptance of donations by corrupted individuals. This includes cases where officials are refusing to carry out an activity that is within the remit of their official duties, or to refrain from carrying out said duties (1). According to article 133 of the Military Justice Code, the provisions of the Penal Code are also applicable to the military (2).

According to our sources, there are political attempts to derail efforts on corruption cases related to facilitation payments. These efforts are sometimes faced strongly by INLUCC and senior commanders and sometimes are tolerated based on the power of the political figure (1,2). There is evidence that cases are investigated. The Anti-Corruption Authority (INLUCC) annual report for the year 2017 mentions that 7 cases of corruption have been transmitted to justice by the Ministry of Defence. Details of these cases are not publicly available and it is unclear if they include facilitation payments (3). There is no evidence of comments from independent commentators over undue political influence (4).

According to our sources, there are very rare facilitation payments that may happen in the MoD, but they are not prevalent. These cases may consist of fewer than a dozen in the last few years (1,2).

According to many sources, facilitation payments are prohibited in the UAE and are considered illegal under the laws that criminalise bribes (1), (2), (3). Bribery, including facilitation payments, is prohibited through Federal Law 3/1987, also known as the Penal Code, Articles 234 to 239, and Federal Decree-Law 11/2008 (also known as the Federal Human Resources Law) (4). However, there is no clear evidence that the Federal Human Resources Law applies to the defence sector. All evidence suggests that there are legal frameworks that strictly make facilitation payments illegal. It has also been noted that although the US under the FCPA allows for exceptions concerning facilitation payments, the UAE has no exceptions (1), (5), (6).

The UAE does not make information about the investigation and prosecution of cases of corruption in the defence sector and the armed forces accessible to the public. According to our sources from the armed forces, the enforcement of legal frameworks with regards to facilitation payments are strict, and people involved are prosecuted, and in cases where they are foreign, they will be deported (1), (2).

According to the assessor’s interviews with officers within the UAE armed forces, facilitation payments are very rare and not a common practice within the forces (1), (2).

Country Sort by Country 50a. Legal framework Sort By Subindicator 50b. Enforcement Sort By Subindicator 50c. Prevalence Sort By Subindicator
Algeria 100 / 100 0 / 100 0 / 100
Angola 100 / 100 0 / 100 0 / 100
Burkina Faso 100 / 100 0 / 100 0 / 100
Cameroon 100 / 100 0 / 100 0 / 100
Cote d'Ivoire 100 / 100 50 / 100 0 / 100
Egypt 50 / 100 0 / 100 0 / 100
Ghana 100 / 100 50 / 100 0 / 100
Jordan 100 / 100 0 / 100 100 / 100
Kuwait 0 / 100 0 / 100 0 / 100
Lebanon 100 / 100 50 / 100 50 / 100
Mali 50 / 100 0 / 100 0 / 100
Morocco 0 / 100 0 / 100 NEI
Niger 0 / 100 NA 0 / 100
Nigeria 100 / 100 0 / 100 50 / 100
Oman 100 / 100 0 / 100 25 / 100
Palestine 100 / 100 0 / 100 50 / 100
Qatar 100 / 100 50 / 100 25 / 100
Saudi Arabia 50 / 100 0 / 100 0 / 100
Tunisia 100 / 100 50 / 100 100 / 100
United Arab Emirates 100 / 100 50 / 100 100 / 100

With thanks for support from the UK Department for International Development and the Dutch Ministry of Foreign Affairs who have contributed to the Government Defence Integrity Index.

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