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

2. 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

3. Pan African Lawyers Union
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

4. www.lawyersofafrica.org Pan African Lawyers Union
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)
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)

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
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, 1990

6. 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, 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

7. 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

8. 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 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)

9. 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 RECs
Correcting 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 effort

10. Some Challenges No Issue 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

11. Some possible solutionsNo
Issue
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

12. 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
Continental & regional training of public & private sector Counsel
Towards Guidelines, Templates & Model Agreements; & Model Contractual Clauses
Reliance on continental & regional legal instruments and policy frameworks, including African Mining Vision

13. 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 …
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 Africa
Continental or regional guidelines (soft law); maybe eventually a Treaty?
Continental & regional training of public & private sector Counsel
Towards Guidelines, Templates & Model Agreements; & Model Contractual Clauses
Public interest litigation, including on corruption, stolen asset recovery: national, continental, international

14. 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

15. 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!)