Presentation

Report
PAN AFRICAN LAWYERS UNION
(PALU)
Public Finances and Illicit Financial Flows:
Preliminary Reflections of PALU
-Presented by Don Deya
-Chief Executive Officer
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2013 – 2018: Strategic Planning
Identity, Vision, Mission
Our Identity Statement (who we are): PALU is a continental
membership forum for African lawyers and lawyers’
associations, which reflects the aspirations and concerns of the
African people, and promotes shared interest
Our Vision (the world we want to see): A united, just and
prosperous Africa based on the rule of law and good
governance
Our Mission (why we exist; our core business): Advancing
the law and the legal profession, the rule of law, good
governance, human and peoples’ rights and socio-economic
development of the African continent
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www.lawyersofafrica.org
Pan African Lawyers Union
Working with the regional and national lawyers associations
and individual lawyers to develop the law and legal practice
in Africa, and to steer the emerging governance, human
rights, peace and security architecture in Africa
General Assembly
All corporate and individual members
Council
5 regional and 54+ national lawyers’ associations
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www.lawyersofafrica.org
Pan African Lawyers Union
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Executive Committee
President: Akere T. MUNA (Cameroon)
Vice President, Central Africa:Vincent KARANGWA (Rwanda)
Vice President, Eastern Africa: Hashim AL’JALY (Sudan)
Vice President, Northern Africa: Mohamed J’MOUR (Tunisia)
Vice President, Southern Africa: Elijah BANDA, SC (Zambia)
Vice President, Western Africa: Mame Adama GUEYE (Senegal)
Treasurer: Prof. Tom Odhiambo OJIENDA (Kenya)
(Secretary General: The Late Akintola Anthony AKINBOTE (Nigeria))
Deputy Secretary General: Bruce Kyerere (Uganda)
10. Chief Executive Officer: Donald Deya
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Secretariat Team in Arusha, Tanzania (the seat of the African Court on
Human & Peoples’ Rights, and the African Union Advisory Board on
Corruption, amongst others)
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African Union; African unity
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Resurgence of the AU: 2000 to date
From 25 May 1963: over 43 Treaties & Protocols
From 2000 to date: over 22 Treaties & Protocols; over 15 touching on
democracy, good governance, human & peoples’ rights or the fight against
impunity
Key Instruments
1.
Constitutive Act of the African Union, 2000
2.
(O)AU Convention Governing the Specific Aspects of Refugee Problems in Africa,
1969
3.
Convention for the Elimination of Mercenariism in Africa, 1977
4.
African Charter on Human & People’s Rights, 1981
a.
Protocol to the African Charter (…) on the Establishment of an African Court
on Human & People’s Rights, 1988
b.
Protocol to the African Charter (…) on the Rights of Women in Africa, 2003
5.
African Charter on the Rights & Welfare of the Child, 1990
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African Union – some of the
Treaties (continued)
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Protocol on the establishment of the Peace & Security Council of the
African Union, 2002
Protocol of the Court of Justice of the African Union, 2003
Convention on Preventing & Combating Corruption, 2003
Non-Aggression & Common Defence Pact, 2005
African Charter on Democracy, Elections & Governance (ACDEG),
2007
Protocol on the Statute of the African Court of Justice & Human
Rights, 2008
Statute of the African Union Commission on International Law, 2009
Convention for the Protection & Assistance of Internally Displaced
Persons, 2009
African Charter on Values & Principles of Public Service &
Administration, 2011
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Recent AU efforts in combatting impunity
 African Governance Architecture (AGA)
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African Human Rights Strategy
 African Peace & Security Architecture (APSA)
 Extending the jurisdiction of the African Court, to cover
international crimes
 (Draft) Policy Framework for Transitional Justice in Africa
 Model law for Universal Jurisdiction
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Programmatic imprint
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International criminal law: including on the Draft Protocol on Amendments to the
Protocol on the Statute of the African Court of Justice and Human Rights
International commercial Law: including on complex international commercial
transactions and dispute resolution (both litigation and arbitration), Vulture Funds.
Partnering with ALSF, a member of the AfDB Group
International human rights law: The emerging economic, human rights, governance
peace & security architecture, including African International Courts and Tribunals
Independence of Judicial Institutions: actions, including court action, in defence of
individual lawyers, lawyers’ associations, individual judges or judiciaries that are under
attack for undertaking their constitutional, statutory or professional duties
The Law of African International Organizations generally: between 100 and 300
such African intergovernmental organizations exist
Towards an Integrity and Anti-Corruption Law Programme
Towards a Pan African Code of Ethics for Lawyers
Publications: electronic and print; Pan African Yearbook of Law (PAYL) to be
launched today…
Affinity Programmes: collective bargaining of benefits for members (linked to our
Members’ ID Card)
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PALU programming on:
- Economic governance, with natural resource governance
as a sub-set
- Trade governance
Basis
1. Liberating billions of more dollars for development in Africa
2. Buttressing the economic sovereignty of Africa, of its States
and of its associational bodies, including the AU and the RECs
3. Correcting Trade Wrongs (Righting wrongs)
4. Creating more opportunities for our members, and for African
lawyers generally to enter into complex international
commercial law
 I adopt Tendai’s analysis & broad
recommendations
 The role of lawyers may be little, but they need to
join Economists and other activists and contribute
their part to the collective effort
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Some Challenges
N Issue
o
Some reflections
1 Complexity
Very hard for our leaders & our people to keep up with a
rapidly globalizing world, and we all need capacity to
cope (in all its senses)
2 Complacency a number of our leaders, bureaucrats, scholars &
practitioners are not doing what they can, to keep up
and to give 100% quality and ethical services to the
people, the countries and the continent
3 Complicity
a number of our leaders, bureaucrats, scholars and
practitioners are actually complicit in the rape and
looting of the continent (and we can and should catch
them)
4 Corruption
in some (not all) cases underlies much of the complicity
and complacency that we see
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Some possible solutions
N Issue
o
Some suggestions
1 Complexity
• Awareness-raising & information-sharing
• Capacity-building
• Continental unity & regional integration: continental
and regional Treaties, Declarations, Policy
Frameworks, including African Mining Vision
2 Complacency
• Capacity-building of PUBLIC & private sector Counsel
• Public participation in election, appointment or
employment of public servants: national, regional or
international. Including vetting
3 Complicity
• Robust advocacy for implementation of global,
continental and regional standards
• “Small role” for litigation, private criminal prosecutions,
& asset recovery (both national & international)
4 Corruption
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1) Complex International Commercial
Contracts
 Special Focus on the Extractive Industries (Oil, Gas,
Minerals) & in large infrastructure projects
 Considering all multi-nationals: Western, Eastern or
African
1. Continental & regional training of public & private
sector Counsel
2. Towards Guidelines, Templates & Model
Agreements; & Model Contractual Clauses
3. Reliance on continental & regional legal instruments
and policy frameworks, including African Mining
Vision
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2) Illicit Financial Flows, Vulture
Funds, Capital Flight generally
Early stages: research, consultation & learning phase; seeking
partnerships
Basis: the role of law and lawyers: making laws and agreements;
registering companies, foundations, trusts; aiding and abbetting …
1. Towards an entry Conference on “Illicit Financial Flows from
Africa: sealing the leaks; management and repatriation of frozen
assets.” Late October/ early November 2013, Nairobi, Kenya
2. Collection, collation, digitization & (online) publication of laws
governing financial flows from Africa
3. Continental or regional guidelines (soft law); maybe eventually a
Treaty?
4. Continental & regional training of public & private sector Counsel
5. Towards Guidelines, Templates & Model Agreements; & Model
Contractual Clauses
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6. Public interest litigation, including on corruption, stolen asset
recovery: national, continental, international
Leveraging the African intergovernmental
institutional infrastructure
 Legal Instruments: Constitutive Act of AU, African Charter and its
Protocols, AU Anti-Corruption Convention, APRM "legal package", REC
legal instruments
 Policy Instruments: AU policy instruments including on AU Mining Vision;
Framework & Guidelines on Land Policy in Africa
 Organs & Institutions:
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African Union Commission (AUC), especially Department of Political Affairs
(DPA), Office of the Legal Counsel (OLC), etc
African Union Advisory Board on Corruption (AU-ABC)
African Union Commission on International Law (AUCIL)
African Commission on Human & Peoples’ Rights – Working Group on
Extractive Industries
African Court (current and future iterations)
Pan African Parliament (PAP)
 Ad Hoc Mechanisms (that are relevant): Thabo Mbeki High-Level Panel
on Illicit Financial Flows from Africa; Olusegun Obasanjo High-Level Panel
on Alternative Financing for the AU
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The proposals for an international criminal jurisdiction for the
African Court: the provisions so far
Jurisdiction
Recommendation
Subject-matter jurisd.
(Rationae materiae)
•Genocide, Crimes against humanity, War crimes (ICC
definitions; ICRC additions for War crimes)
•Unconstitutional change of government (ACDEG): definition
under further discussion
•Others, according to AU Treaties & Protocols: Corruption,
Money laundering; Illegal Exploitation of Natural
Resources; Terrorism, Piracy (UNCLOS), Aggression,
Mercenariism; Trafficking in Persons, Drugs, Hazardous
Wastes (Inchoate offences)
Personal jurisd.
(Rationae personae)
•Africans and non-Africans in Africa
•Over 18 years
•Legal and Natural Persons (Corporate criminal liability)
Territorial jurisd.
(Rationae loci)
•Within Africa; within States Parties
•Protective principle: “vital interests”
Temporal jurisd.
(Rationae temporis)
•Non-retrospectivity
•Leaves intact customary international law, though (which is
positive!)
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