1 PAN AFRICAN LAWYERS UNION - PowerPoint Presentation

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PAN AFRICAN LAWYERS UNION(PALU)

Public Finances and Illicit Financial Flows: Preliminary Reflections of PALU

Presented

by Don Deya

Chief Executive OfficerSlide2

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 AfricaGeneral AssemblyAll corporate and individual membersCouncil 5 regional and 54+ national lawyers’ associations 3Slide4

www.lawyersofafrica.org

Pan African Lawyers UnionExecutive 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)

Chief Executive Officer: Donald DeyaSecretariat 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

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

Constitutive Act of the African

Union, 2000

(O)AU Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969

Convention for the Elimination of

Mercenariism

in Africa, 1977

African

Charter on Human

&

People’s

Rights, 1981

Protocol to the African Charter (…) on the Establishment of an African Court on Human & People’s Rights, 1988

Protocol to the African Charter (…) on the Rights of Women in Africa, 2003

African

Charter on the Rights

&

Welfare of the

Child, 1990Slide6

African Union – some of the Treaties

(continued)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, 2003Non-Aggression & Common Defence Pact, 2005African Charter on Democracy, Elections & Governance (ACDEG), 2007Protocol on the Statute of the African Court of Justice & Human Rights, 2008Statute 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)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 Jurisdiction7Slide8

Programmatic imprint

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 GroupInternational human rights law: The emerging economic, human rights, governance peace & security architecture, including African International Courts and TribunalsIndependence 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 existTowards an Integrity and Anti-Corruption Law ProgrammeTowards 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)8Slide9

PALU programming on:

- Economic governance, with natural resource governance as a sub-set- Trade governance

Basis

Liberating billions of more dollars for development in Africa

Buttressing the economic sovereignty of Africa, of its States and of its associational bodies, including the AU and the RECsCorrecting Trade Wrongs (Righting wrongs)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 effort9Slide10

Some Challenges

No

Issue

Some reflections

1ComplexityVery 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) 2Complacencya 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 3Complicitya 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)

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Corruption

in some (not all) cases underlies much of the complicity and complacency that we see

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Some possible solutions

No

Issue

Some suggestions

1ComplexityAwareness-raising & information-sharingCapacity-buildingContinental 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

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Complicity

Robust advocacy

for implementation of global, continental and regional standards

“Small role” for litigation, private criminal prosecutions, & asset recovery (both national & international)

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Corruption

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1)

Complex International Commercial ContractsSpecial Focus on the Extractive Industries (Oil, Gas, Minerals) & in large infrastructure projectsConsidering

all multi-nationals: Western, Eastern or

African

Continental & regional training of public & private sector CounselTowards Guidelines, Templates & Model Agreements; & Model Contractual ClausesReliance on continental & regional legal instruments and policy frameworks, including African Mining Vision 12Slide13

2) Illicit

Financial Flows, Vulture Funds, Capital Flight generallyEarly stages: research, consultation

&

learning phase; seeking

partnershipsBasis: the role of law and lawyers: making laws and agreements; registering companies, foundations, trusts; aiding and abbetting … 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 Collection, collation, digitization & (online) publication of laws governing financial flows from AfricaContinental or regional guidelines (soft law); maybe eventually a Treaty?Continental & regional training of public & private sector CounselTowards Guidelines, Templates & Model Agreements; & Model Contractual ClausesPublic interest litigation, including on corruption, stolen asset recovery: national, continental, international

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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 instrumentsPolicy Instruments: AU policy instruments including on AU Mining Vision; Framework & Guidelines on Land Policy in Africa

Organs & Institutions:

African Union Commission (AUC), especially Department of Political Affairs (DPA), Office of the Legal Counsel (OLC), etcAfrican Union Advisory Board on Corruption (AU-ABC)African Union Commission on International Law (AUCIL)African Commission on Human & Peoples’ Rights – Working Group on Extractive IndustriesAfrican 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 AU14Slide15

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 discussionOthers, 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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