1 PAN AFRICAN LAWYERS UNION (PALU) Public Finances and Illicit Financial Flows: Preliminary Reflections of PALU - Presented by Don Deya - Chief Executive Officer

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 2

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 3

Pan African Lawyers Union Executive Committee 1. President: Akere T. MUNA (Cameroon) 2. Vice President, Central Africa:Vincent KARANGWA (Rwanda) 3. Vice President, Eastern Africa: Hashim AL’JALY (Sudan) 4. Vice President, Northern Africa: Mohamed J’MOUR (Tunisia) 5. Vice President, Southern Africa: Elijah BANDA, SC (Zambia) 6. Vice President, Western Africa: Mame Adama GUEYE (Senegal) 7. Treasurer: Prof. Tom Odhiambo OJIENDA (Kenya) 8. (Secretary General: The Late Akintola Anthony AKINBOTE (Nigeria)) 9. Deputy Secretary General: Bruce Kyerere (Uganda) 10. Chief Executive Officer: Donald Deya 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) 4

5 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 1. Constitutive Act of the African Union, (O)AU Convention Governing the Specific Aspects of Refugee Problems in Africa, Convention for the Elimination of Mercenariism in Africa, 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, African Charter on the Rights & Welfare of the Child, 1990

African Union – some of the Treaties (continued) 6. Protocol on the establishment of the Peace & Security Council of the African Union, Protocol of the Court of Justice of the African Union, Convention on Preventing & Combating Corruption, Non-Aggression & Common Defence Pact, African Charter on Democracy, Elections & Governance (ACDEG), Protocol on the Statute of the African Court of Justice & Human Rights, Statute of the African Union Commission on International Law, Convention for the Protection & Assistance of Internally Displaced Persons, African Charter on Values & Principles of Public Service & Administration,

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 Jurisdiction 7

Programmatic imprint 1. 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 2. 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 3. International human rights law: The emerging economic, human rights, governance peace & security architecture, including African International Courts and Tribunals 5. 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 6. The Law of African International Organizations generally: between 100 and 300 such African intergovernmental organizations exist 7. Towards an Integrity and Anti-Corruption Law Programme 8. Towards a Pan African Code of Ethics for Lawyers 9. Publications: electronic and print; Pan African Yearbook of Law (PAYL) to be launched today… 10. Affinity Programmes: collective bargaining of benefits for members (linked to our Members’ ID Card) 8

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 9

Some Challenges NoNo IssueSome 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) 4Corruptionin some (not all) cases underlies much of the complicity and complacency that we see 10

Some possible solutions NoNo IssueSome suggestions 1ComplexityAwareness-raising & information-sharing Capacity-building Continental unity & regional integration: continental and regional Treaties, Declarations, Policy Frameworks, including African Mining Vision 2ComplacencyCapacity-building of PUBLIC & private sector Counsel Public participation in election, appointment or employment of public servants: national, regional or international. Including vetting 3ComplicityRobust advocacy for implementation of global, continental and regional standards “Small role” for litigation, private criminal prosecutions, & asset recovery (both national & international) 4Corruption 11

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 12

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 6. Public interest litigation, including on corruption, stolen asset recovery: national, continental, international 13

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: 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 14

The proposals for an international criminal jurisdiction for the African Court: the provisions so far JurisdictionRecommendation 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!) 15