Maendeleo Group Blog

The year 2018 will be remembered as a landmark year for high level policy action on anti-corruption. Previous commentary on the topic can be found here, here and here.

Notable is the dedication of 2018 by the African Union (AU) as the African Anti-Corruption Year on the theme “Winning the Fight Against Corruption: A Sustainable Path to Africa’s Transformation” The dedication of 2018 as the African Anti-Corruption Year closely follows the 24th Ordinary Summit of the AU which also considered the report of the High Level Panel on Illicit Financial Flows (IFF’s) and adopted a declaration on IFF’s. The report of the High Level Panel revealed that Africa loses at least $ 50 billion a year to Illicit Financial Flows, a large portion of which (close to 60%) is through unethical business practises such as transfer pricing and aggressive tax avoidance practises. Interestingly, the High Level Panel found that corruption only constitutes 5% of the total illicit outflows.

The seminal work of the High Level Panel has played a crucial role in recalibrating the global debate around corrupt practises, shining the spotlight on western countries and their multinational corporations and the role they play in abetting corrupt practises. This could be said to go against conventional opinion that has largely depicted Africa as corrupt and western countries as ethical. An examination of the Transparency International rankings reinforces this perception with a country like Somalia ranking poorly, while Switzerland is rated highly despite being a secrecy jurisdiction that facilitates the concealment of the proceeds of corruption. This has led some to argue that such corruption indices do not place sufficient focus on the supply side of corruption.

Unsurprisingly, indications suggest that the Organisation for Economic Co-operation and Development (OECD) is pushing back on the work of the High Level Panel and has been attempting to question the methodology and findings by attempting to focus more on the illegal dimensions of Illicit Financial Flows.

With these developments as a backdrop, an emerging African voice can be distilled from the recently concluded 31st Summit of the AU which was held on 1 and 2 July, 2018 in Mauritania’s desert capital Nouakchott. Three issues are notable;
First, taking que from the tone of the High Level Panel, the summit criticized the labelling of corruption as an African phenomena.

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Instead, the summit viewed corruption as a universal phenomenon and that the fight against corruption constitutes part of the broader debate around global economic and tax justice including the progressive elimination of tax havens and secrecy jurisdictions both within and outside Africa.

Secondly, the summit also noted importance of asset recovery as a key priority for African countries. Countries like Nigeria whose president Muhammadu Buhari was appointed to champion the African Anti-Corruption year have suffered from difficulties in tracing, freezing and returning stolen assets. The close to 20 year journey to recover the Abacha loot from the Swiss authorities is a good example of the perils African governments face is the recovery of stolen assets. On asset recovery, the priorities include ending unnecessary conditionality’s for asset recovery, developing a Common African Position on Asset Recovery and working with international partners to adopt a transparent and efficient timetable for the recovery and return of stolen assets.

Finally, corruption prevention remains a key priority with an emphasis on anti-corruption education and sensitization campaigns targeting young people as a means of catalysing attitudinal change. In a continent that is growing younger, investing in emerging generation of anti-corruption change agents will be crucial to stemming corruption and developing new methodologies to fight the vice. Youth-led organisations and movements such as YouthHub Africa, budgiT and JamiiForums are good examples of how social media and ICTs can be used to engage and mobilize young people on transparency issues.

These three pillars will likely serve as thrust for African discourse on the topic in the coming years and are reflective of the uniquely African voice in the global anti-corruption debate.

An abridged version of this post was featured on the Global Anti-Corruption Blog

Selemani is Legal Expert specializing in African Governance trends. He currently serves as Senior Policy Officer for Political and Legal Matters at the African Union Advisory Board on Corruption. He is also an advisor at The Maendeleo Group and a member of the Pan African Lawyers Union Expert Task Force on Illicit Financial Flows. The views expressed by the author are entirely his own and do not reflect the position of any organisation he may be affiliated with.
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On 12 June 2017, President John Magufuli of Tanzania received a report from the Osoro Committee which was commissioned to examine the economic and legal implications of the country’s export of gold and mineral concentrates. The establishment of the Osoro Committee follows a visit made in March by President Magufuli to the port of Dar es Salaam where he barred the export of 277 containers of gold and mineral concentrate belonging to Acacia Mining PLC, pending government verification of the amount and value of the minerals.

A probe team was established to carry out the chemical analysis and a report released in early April 2017. The chemical analysis pointed to significant variances in the amount of gold concentrate in the containers, suggesting that Acacia had under declared the export value and amount of mineral concentrate by as much as three times. The probe team also found that at least 10 other minerals were not declared by Acacia including zinc, nickel and lithium.

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Watch this informative video on tackling the scourge that is Corruption in Africa.

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The Panama Papers’, a data leak of client documents belonging to Panama-based law firm Mossack Fonseca, were exposed by German newspaper, SüddeutscheZeitung, in conjunction with the International Consortium of Investigative Journalists (ICIJ). These controversial documents haveraised some ethical and legal questions around financial disclosure and transparency; and the role of tax haven jurisdictions in the facilitation of tax evasion, trade-based money laundering, organised crime, illicit financial flows (IFFs) and other issues of grave concern to the international community.

Although holding ownership of a shell company or an offshore account, in most cases is not unlawful, some negative practices have come to be associated with financial activities in secretive jurisdictions. In general, countries could prosecute individuals and corporations involved in the operation of offshore business interests, in instances where:

  • a public official has failed to disclose the offshore accounts;
  • the funds held in the offshore account are the proceeds of crime;
  • the offshore accounts facilitate the evasion of tax liability for an individual or corporate entity.

What has the response of African states been to the Panama Papers? The Economic and Financial Crimes Commission of Nigeria declared that it would investigate the nationals implicated in the scandal. Despite the existence of legislation enabling the prosecution of parties involved in the illegal use of offshore accounts, months of silence ensued, and after much protest, the Nigerian government eventually announced the names of prominent individuals to be prosecuted. Instrumental in this achievement were the concerted efforts by the Nigerian civil society which demanded that strong action be taken against those individuals with financial dealings in secretive jurisdictions.

It is interesting to note that before the data leaks such as WikiLeaks and the Panama Papers put a spotlight on offshore accounts, Nigeria and Kenya had already prohibited the use of foreign banking accounts by public officials in their respective Constitutions. Although Nigeria has disclosed the names of the individuals who will be prosecuted, there are no known prosecutions, intended or otherwise, relating to the Panama Papers in Kenya.

The South African Code of Conduct for Public Servants on the other hand, does not forbid the use of foreign banks by public officials and a proposed amnesty for those who declare their financial interests in offshore accounts, makes no distinction between voluntary disclosures to be made by public officials and individuals not in public service. There are also no known prosecutions in South Africa, relating to the Panama Papers or the holding of offshore accounts and companies. African responses have largely focused on individuals in public service and little attention has been placed on the role of corporate entities in IFFs and tax evasion.

The Panama Papers not only confirmed the losses that the continent suffers as a result of IFFs but also brought to light the existence of IFFs in other commercial industries. Tour operator agencies and companies operating in Southern and Eastern Africa have found themselves embroiled in the Panama Papers scandal; with at least 30 offshore Safari companies revealed to have been incorporated through Mossack Fonseca. Many of these companies are officially registered in the British Virgin Islands while their daily operations continue from Southern and East African countries such as Zimbabwe, Namibia, Botswana, Tanzania and Kenya.

Like the extractive industries, tourism is a major contributor to the economies of African countries. In 2014, tourism on the African continent contributed $798 million, with a total GDP input of 10.5%. The total number of jobs supplied by this industry in 2014, amounted to 543,500, which accounts for 9.2% of Africa’s jobs. Tourism is not only a major contributor to the GDP but is also a key foreign exchange earner as many tourists bring foreign currencies. In countries with weak financial controls, foreign currencies can more easily be channeled out to tax havens than the local currency. The inability to adequately control forex can impact a country’s balance of payments and adversely affect the viability of import and export markets.

Despite the devastating revelations brought forth by the Panama Papers, few African countries have taken decisive action with regard to the investigation, prosecution and subsequent recovery of assets of individuals and corporations linked to the Panama Papers.

At the regional level, the African Union’s (AU) Advisory Board on Corruption issued a statement to the effect that each country should conduct its own investigations into the persons mentioned in the Panama Papers. Although the AU Advisory Board on Corruption has the mandate to advise and develop disciplinary and investigation procedures for corruption and related offences in the public service, with the exception of a call for investigations, no guidelines for the investigation and prosecution of public officials linked to the Panama Papers have been issued. The inconsistent and often lax responses to the Panama Papers across the continent indicates the need for the harmonization of standards.

The Mbeki Panel Report on illicit financial flows in Africa highlighted that IFFs, organised crime and money laundering are negatively affecting the African continent’s ability to develop. The billions of dollars syphoned out of Africa’s reserves could be used for education, healthcare and other basic provisions, yet civil society in the countries most affected by IFFs, money laundering and tax evasion are not vocal about these serious impediments to sustainable development. In order to curb this major stumbling block to development, African states must take responsibility for the regulation and monitoring of funds transferred to offshore and secretive jurisdictions.

Blog written by Olwethu Majola-Kinyunyu Maendeleo Group’s Senior Analyst based on her research and article published by the Anti-Money Laundering Journal of Africa (AML Journal of Africa).

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