Strengthen National Office for the Fight against Fraud and Corruption (SN0015)

Description of the commitment

What public issue will the engagement address? After having adhered to several international instruments to combat corruption, Senegal established the OFNAC, by Law No. 2012-30 of December 28, 2012. This institution investigates cases and files, regularly, with the Prosecutor of the Republic, reports which implicate certain people. However, these reports are not always acted upon. This is explained, to a certain extent, by the lack of prerogatives of the OFNAC regarding the follow-up of the investigation files transmitted to the competent judicial authorities. In addition, some subject to the asset declaration do not fulfill this obligation provided for by Law No. 2014-17 of April 2, 2014, without being subject to sanction. In addition, Senegal still does not have an anticorruption law and legal provisions that protect whistleblowers. Therefore, strengthening the powers of OFNAC and legal provisions would be a way to improve anti-corruption strategies and increase the accountability and transparency of public action. It is in this perspective that the government adopted and examined on November 22, 2023, in the Council of Ministers  The bill amending law no. 2012 - 30 of December 28, 2012 establishing the National Office for the Fight against Fraud and Corruption (OFNAC); And The bill amending law no. 2014 - 17 of April 2, 2014 relating to the declaration of assets.

What are the objectives of the engagement ? The main objective of this commitment is to strengthen the powers of OFNAC and provide Senegal with an anti-corruption law. Specifically, this involves, on the one hand, ensuring that follow-up is given to investigation files transmitted to the competent judicial authorities and making the declaration of assets effective for all taxable persons; and on the other hand, adopt a general law on the fight against corruption.

How would the engagement help to solve the public problem? The commitment will contribute to:  Strengthen the credibility of OFNAC;  Prevent corruption;  Improve the repression of corruption;  Make the management of public affairs and the monitoring of investigation files more transparent.

Why is this commitment relevant to the values of the OGP? The commitment refers to the principle of the fight against corruption, transparency and accountability, by promoting the integrity of public officials.

Additional information

Senegal has a national anti-corruption strategy which has three major axes: - Reform of the normative and institutional framework; - Improved governance and coordination of interventions in the fight against corruption;- Improved communication and capacity building of those involved in the fight against corruption (information, communication and education). The draft laws on OFNAC and on the declaration of assets were adopted by the Council of Ministers on November 22, 2023. A Scientific Committee has been set up to develop the preliminary draft anti-corruption law.

Important actions with a verifiable deliverable | Starting - Closing | Estimated budget | Responsible

1. Advocate for the vote on the bills adopted by the Council of Ministers (November 22, 2023) and the signing of their implementing decrees. | Janvier 2023 - Décembre 2024 | 10,000,000 | Comité national de pilotage

2. Popularize the national anticorruption strategy and the laws on asset declaration and OFNAC | Janvier 2022 - Décembre 2023 | 30,000,000 | OFNAC

3. Advocate for the adoption of a law on the fight against corruption, integrating the protection of whistleblowers, denunciators, victims and witnesses of corruption | Janvier 2022 - Décembre 2023 | 100,000,000 | OFNAC

Action Plan Review

Commitment 3: Strengthen the National Office for the Fight against Fraud and Corruption [National Office for the Fight against Fraud and Corruption (OFNAC)]

For a complete description of the commitment, see Commitment 3 in https://www.opengovpartnership.org/wp-content/uploads/2024/01/Senegal_Action-Plan_2023-2025_December_EN.pdf.

Context and objectives

Corruption remains a key challenge in Senegal. A 2022 Afrobarometer survey showed that 73% of Senegalese noted a sense of rising corruption levels. [23] Transparency International’s 2023 Corruption Perception Index scored Senegal 43 out of 100 points, ranking 70 out of 180 countries. This score has remained constant from 2021 to 2023. The civil society organization Forum Civil attributes this score to “chronic institutional immobility in the fight against corruption.” [24] Transparency International’s assessment of Senegal highlights the country’s anti-corruption institution having limited investigative powers, a lack of compliance with asset declaration requirements, as well as the lack of an anti-corruption law and legal provisions protecting whistleblowers as key challenges to addressing corruption in Senegal. [25]

Senegal’s National Office for the Fight against Fraud and Corruption (OFNAC) plays a vital anti-corruption role with a mandate to investigate corruption cases and submit reports to the public prosecutor. However, OFNAC’s narrow investigatory powers has restricted its ability to complete, submit, and follow up on reports to judicial authorities. The number of investigative files sent from OFNAC to the public prosecutor has stagnated. [26] In 2023, OFNAC finalized 12 investigative reports, which were then examined by the OFNAC Assembly, and possibly forwarded to the competent judicial authority. [27]

There has also been a low level of compliance with requirements for public officials to disclose their assets and no sanctions against those who do not comply. [28] A 2023 OFNAC report states that the Assets Declaration Department recorded only 814 declarations of assets on entry into service (58%) and 177 on leaving service (49%) in the period of 2014–2023,. [29]

Commitment 3 builds on progress started under the previous action plan to address these key anti-corruption challenges. The commitment aims to pass two bills adopted by the Council of Ministers on 22 November 2023 and sign their implementing decrees. The first bill strengthens OFNAC’s powers to produce investigative reports for judicial authorities. The second strengthens the asset declaration regime by expanding the scope of individuals subject to asset declarations and instituting penalties for non-compliance, among other measures. The commitment also seeks the adoption of an anti-corruption law, which includes protection for whistleblowers, victims, and witnesses of corruption. Finally, the commitment foresees public dissemination of a new anti-corruption strategy and other recent anti-corruption legislation.

Potential for results: Substantial

This commitment continues the effort initiated in the first action plan as the bills were not adopted by the end of the implementation period in August 2023. The Council of Ministers adopted laws No. 2024-06 and No. 2024-07 on 22 November 2023, [30] which were then passed by the Parliament of Senegal on 9 February 2024. These laws amended exiting legislation on OFNAC’s mandate and requirements around public officials’ asset declarations. [31] The next step is for the President of the Republic to issue the implementing decrees. President Faye’s administration ran on an anti-corruption campaign platform, with a stated aim to pass a whistleblower protection law. [32]

According to the Minister of Finance and Budget, these laws promise to significantly improve the fight against corruption. In particular, they intend to “strengthen the possibilities of recovering public resources and putting them into the state budget, and improve the culture of integrity and the fight against the misappropriation of public funds.” [33] Laws No. 2024-06 and 2024-07 introduced significant changes to the existing laws governing OFNAC and asset declaration. With regard to asset declarations, key changes are the extension of the number of persons required to make declarations, publication of the list of persons in good standing and those in default, the obligation to update asset declarations, checks to ensure the conformity, accuracy, completeness and sincerity of declarations, as well as checks on changes in the assets of those concerned, and penalties for breaches of these provisions. [34]

Law No 2024-06 amended the law governing OFNAC to strengthen its ability to conduct corruption investigations. The law expanded OFNAC’s investigative authority to include all offences under the United Nations Convention Against Corruption (UNCAC), such as illicit enrichment. Previously investigative mandates were spread across various bodies leading to conflicts of jurisdiction and inefficiency. The law also increased the statute of limitations from 3 to 7 years from the commission of the offence, granting OFNAC longer investigation periods. Notably, the amendment grants OFNAC the ability to take individuals into police custody and to conduct penal mediation at the request of the accused. OFNAC directors’ term of office was expanded from 3 to 5 years renewable to allow for less turnover and more institutional knowledge. Finally, OFNAC can submit opinions to judicial authorities. [35] Upon implementation, OFNAC’s strengthened powers of investigation has the potential to result in a greater number of comprehensive reports for judicial authorities to act on.

Both government and civil society expressed positive views of the legal changes. The President of OFNAC stated that strengthening OFNAC’s powers “is the result of a plea from development partners, civil society, and all those involved in the fight against corruption i.e., all those involved in integrity.” [36] According to the Minister of Finance and Budget, the Law on the Declaration of Assets “is intended to fill the gaps identified after 8 years of application, while extending the scope of liability to a number of public officials occupying senior positions, whether or not they are managers of public funds.” [37] A civil society representative noted that all their advocacy efforts have been considered in the final versions of the laws. [38]

The importance of establishing legal protections for whistleblowers was underscored by a representative of the Directorate for the Promotion of Good Governance (DPBG) of the Ministry of Justice. They noted that the lack of a clear definition of whistleblowers had led to wrongful imprisonment before. [39] Resultantly, the passage of a Law on Whistleblower Protection, with the inclusive participation of civil society in the drafting process, could be a significant milestone. Promisingly, the President of Senegal pledged to take measures to protect whistleblowers in his statement to the nation on the eve of Senegal's Independence Day [40] and subsequently instructed the Minister of Justice to finalize the bill. [41]

Interviews conducted by the IRM indicated that civil society will be engaged in the development of additional anti-corruption laws and documents. An OFNAC representative clarified that the Anti-Corruption Law will take into account the protection of whistleblowers [42] and accompanied by updating of the national anti-corruption strategy, which expires at the end of 2024. The Director of Good Governance stated that the strategy should be renewed through a participatory approach. [43] Provided relevant and comprehensive legislation and sanctions for non-compliance, the commitment could significantly enhance participation in anti-corruption efforts and improve public accountability.

Opportunities, challenges, and recommendations during implementation

This commitment represents an opportunity for civil society to collaborate with the government to improve the legal framework for the fight against corruption. There is particular opportunity for civil society to influence the legal framework to protect whistleblowers as its development is underway and there is widespread support for a Whistleblower Protection Law. The Platform for the Protection of Whistleblowers in Africa has provided recommendations to the President of the Republic to involve him in drafting of the law. [44] According to the director of the platform, there is an absolute need to define whistleblower status in francophone Africa “so that people can't make cookie-cutter denunciations…” [45] However, the Coordinator of the Y'en a marre movement [46] highlighted concerns about the framework and what will be put in this law because “activists and other people on the internet think they are whistleblowers.” [47]

To develop a robust whistleblower law, Senegal could draw inspiration from South Africa's 2000 Whistleblower Protection Act. [48] It protects salaried employees, including independent contractors, consultants, agents, and those providing services to a customer while employed by a temporary employment service (i.e., labor broker), in both the public and private sectors. [49] The law is comprehensive in that it explicitly mentions the types of retaliation that may occur, introduces the obligation to set up company-wide internal reporting procedures and requires employees to be informed of their existence, stipulates that employees are protected against professional retaliation, and employers must protect whistleblowers against any risks of liability. [50]

The overall test for this commitment’s potential impact will be the effective and efficient implementation of these anti-corruption laws. Efforts to do so could start with issuing implementing decrees. Bearing in mind these opportunities, challenges, and examples, the IRM suggests that implementers consider the following: