2023 Annual Conference Livingstone, Zambia

 2023 Annual Conference Livingstone, Zambia

Communiqué of the 13th Annual Conference of the Pan African Lawyers Union (PALU) Held in Livingstone, Zambia From 5th to 8th July 2023

Under the theme: “The Sovereign Debt Crisis in Africa: The Role of the Legal Profession.”

Introduction

1.  The Pan African Lawyers Union (PALU) convened its 13th Annual Conference, under the theme: “The Sovereign Debt Crisis in Africa: The Role of the Legal Profession”, from 5th to 8th July 2023, at the Avani Victoria Falls Resort, in Livingstone, Republic of Zambia. The conference was hosted in collaboration with the Law Association of Zambia (LAZ) and with the support of, amongst others, the Open Society Foundations (OSF).

2.  The conference brought together over 300 participants, drawn from all five regions of continental Africa as well as its sixth region (the diaspora). These included lawyers, bar leaders, law professors and judges; and also friends of lawyers, including members of executive and legislative arms of government; officials of the African Union (AU) and the Regional Economic Communities (RECs); the corporate sector; the media; book publishers; human rights defenders; and civil society leaders working on a range of issues, including protection of civic space and human and peoples’ rights; debt; tax; illicit financial flows; asset recovery; and climate change.

3.     The conference was opened by the President of the Republic of Zambia, H.E. Mr. Hakainde Hichilema, who was represented by the Hon. Minister of Labour and Social Security, Ms. Brenda Mwika Tambatamba and the Hon. Attorney General, Mr. Mulilo Dima Kabesha SC. Upon the close of the conference, the Gala Dinner was graced by the Chief Justice of the Republic of Zambia, the Hon. Mr. Mumba Malila SC, who was represented by the Deputy Chief Justice, the Hon. Mr. Michael Musonda SC.

4.      Dignitaries present included: –

a.      Mr. Akere Tabeng MUNA, Member of the African Union High-Level Panel on Illicit Financial Flows from Africa (AU HLP-IFF) and Co-Chairperson of the African Union Working Group for the Common African Position on Asset Recovery (AU CAPAR WG). Mr. Muna is also a President Emeritus of PALU;

b.      The Principal Judge and Judges of the First Instance Division of the Court of Justice of the Common Market for Eastern and Southern Africa (COMESA Court), together with the Registrar of the Court;

c.       Mr. Elijah Chola BANDA SC, also President Emeritus of PALU.

5.      Sister lawyers’ associations present included the leaderships of the: –

a.      Commonwealth Lawyers Association (CLA)

b.      Cyrus R. Vance Center for International Justice of the New York City Bar

c.       German Federal Bar (BRAK)

d.      International Law Section of the National Bar Association (NBA) of the United States of America

e.      East Africa Law Society.

6.      In the course of the conference: –

a.      The Presidents of PALU and the National Bar Association (NBA) of the United States of America signed a comprehensive Co-operation and Collaboration Agreement;

b.      The United Nations Educational, Scientific and Cultural Organization (UNESCO) to present to PALU members and friends its flagship Global Media Defence Fund;

c.       The African Union Working Group on the Common African Position on Asset Recovery (AU CAPAR WG) announced to the members the designation of PALU as the Secretariat of the Working Group.

The Conference Programme

7.      The conference continued its track record of providing the premier forum on the African continent for the legal profession and its friends to deliberate on several issues affecting the profession, and the development of the continent in general.

8.      As is customary, the conference featured a diverse range of topics germane to the legal profession and to development in Africa, along the three PALU Sections: –

a.      Section on Business Law (SBL), which featured, among other topics, recent notable developments in arbitration; mediation; oil and gas; and the African Continental Free Trade Area (AfCFTA), etc;

b.      Section on Legal Practice (SLP), which featured, among other topics, scaling up the advocacy on women, the law and justice; practising in the international legal scene; artificial intelligence and the future of the legal profession, etc;

c.       Section on Public Interest and Development Law), which, among other things: –

                                                  i.      Incorporated a two-day Master Class on Economic Justice, which is summarised further below;

                                                 ii.      Continued discussions from previous years on implementation of decisions of African international courts and tribunals; protection of civic space, freedom of expression and digital rights in Africa, etc.

9.      The PALU members and other stakeholders debated the central theme of the conference, “The Sovereign Debt Crisis in Africa: The Role of the Legal Profession”, in the: –

a.      Opening Ceremony, with the Government of the Republic of Zambia;

b.      Keynote speech, given by the United Nations Independent Expert on foreign debt, other international financial obligations and human rights, Prof. (Ms.) Attiya Waris, and a follow-up high-level roundtable of lawyers, economists and public policy and civil society experts;

c.       Two-day Economic Justice Master-Class, which was incorporated into the conference. 

10.  In their deliberations, the lawyers and other stakeholders observed that the present discussions: –

a.      Build upon and buttress the theme of the 12th Annual Conference of PALU, held in Arusha, Tanzania, in June 2022, with the theme, “The Africa We Want: from Aspirations to Reality”;

b.      Continue with the 2022 commitment that the African legal profession and its friends must proactively contribute to domestic resource mobilisation (DRM) in order that all African countries will reliably and sustainably finance the African Union’s development blueprint, the AU Agenda 2063; and the United Nations Sustainable Development Goals (UN SDGs, or the Agenda 2030);

c.       Have to take into account the poly-crises that have recently confronted the world, including the economic shocks caused by the COVID-19 pandemic, the Russia-Ukraine war, the climate emergency and the resurgence of conflict on the African continent;

d.      On sovereign debt, therefore, are inextricably linked to other elements that would ensure sufficient domestic resource mobilisation (DRM), and these include how Africa and the entire world address other matters including international trade, illicit financial flows, the climate emergency, etc;

e.      Are therefore concerned with global financial architecture and confronting the fact that, as currently set up, this architecture works for a few, richer States and against the interests of the vast majority of the global South, developing States and peoples;

f.        Are, necessarily, multi-disciplinary and require lawyers and several other professions, occupations and disciplines to work together.

11.  With regard to the issue of sovereign debt in particular, the lawyers and other stakeholders noted that: –

a.      The procurement, utilisation, management and repayment of sovereign debts are essentially contractual obligations between lenders and borrowers, and therefore commends itself to the legal profession, without minimising the roles of other professions, occupations or disciplines;

b.      The above entails, amongst other things, the necessity for robust legal analysis and taking cognisance of various laws, rules and regulations within the respective countries;

c.       Procurement, utilisation, management and repayment of sovereign debt requires transparency, accountability, the informed participation and consent of the public, and the authorisation and supervision of legislatures;

d.      While all bilateral loan agreements are seen as problematic as they are secretly negotiated and signed with minimal parliamentary involvement, resource-backed loans even more so with the quality and quantities of the resources mortgaged are not known and the minerals are prone to price volatilities in the international market.

e.      Repayment and service of loans denominated in foreign currencies put a disproportionate burden on African governments, faced with devalued local currencies resulting from international events out of their control, such as the COVID-19 pandemic and the Ukraine-Russia war.

f.        The effects of odious debt have continued to harm the continent. These irresponsible lending and borrowing practices are not just financial but they also affect the provision of social safety nets as citizens have to repay loans that they have nothing to show of.

g.       The impact of the valuation of the credit worthiness of African government debt perpetuates the stigma associated with decades of hardship imposed by western-led economic policy and increase the cost of borrowing disproportionally.

h.      The irresponsible lending and borrowing practices that create odious debt have continued to harm the continent and also affect the provision of social safety nets as citizens have to repay loans that they have nothing to show of.

i.        Overall, debt servicing and the prescriptions given by multi-lateral financial institutions (MFIs) and the terms set by some bilateral lenders, including private lenders, are haemorrhaging the resources required to provide public services, social safety nets and development to the peoples of Africa and other developing countries;

j.        Sovereign debt, therefore, is being instrumentalised as a continuum of the exploitation of Africa that has transitioned from slavery, through colonialism and into the current institutionalised lop-sided and extractive global order;

12.  With regards to tax and the global financial architecture, lawyers noted that: –

a.      The global tax architecture is skewed and favours developing countries at the expense of African countries.

b.      Due to weak and archaic tax laws and systems, developing countries are losing revenues through harmful tax practices such as tax evasion and tax avoidance contributing to illicit financial flows.

c.       Lawyers including other professional have a role to build a community of practise to champion robust tax reform initiatives that help to protect a country’s tax base and ultimately contribute to debt reduction

13.  The lawyers and other stakeholders also noted that the extractives sector (oil, gas and minerals) is: –

a.      Characterised by human rights abuse emanating from conflicts, contract negotiation is secretive and local lawyers are too often left out of the negotiation processes to the benefit western-based law firms.

b.      In some cases, local lawyers are seen as incompetent and lacking the requisite knowledge thereby limiting their essential involvement in the sector.

c.       Despite all these challenges, the sector provides a lot of opportunities to lawyers in terms of representing their governments and ensuring they get better deals.

14.  With regard to climate change, the lawyers and other stakeholders noted that: –

a.      The African continent emits less greenhouse gases but is more vulnerable and bears the biggest brunt of climate change.

b.      As a result of climate change, the African continent faces a greater risk of displacement, food insecurity, water shortages, and greater risk of certain illnesses thereby negatively implying on human rights.

c.       The risks above calls for the need to seek an advisory opinion on states’ failure to mitigate climate changes as a violation of human rights.

15.  With regard to the Common African Position on Asset Recovery (CAPAR), the lawyers and other stakeholders noted that: –

a.      CAPAR as a policy and advocacy instrument has a greater potential to assist AU Member States to trace, identify, recover, repatriate and subsequently effectively manage their assets, including assets of cultural heritage, in a manner that respects their sovereignty and for the benefit of African peoples who are ultimately victims of illicit financial flows.

b.      African lawyers and those in the diaspora have a role to actively promote public knowledge of the Common African Position on Asset Recovery (CAPAR) in their jurisdictions and to their international partners, and to take national-level actions in support of this position.

16.  With regard to the scandal associated with Glencore, the lawyers and other stakeholders noted that: –

a.      The Glencore corruption scandal is a symptom of widespread and deliberate corporate misconduct or practice in the extractive industries in Africa where companies engage in bribery and other corrupt activities to secure favourable terms, permits and tax treatments.

b.      Through PALU, lawyers should call upon the AU and the governments of the six African victim states to draw upon all the necessary resources for joint and separate judicial action against Glencore and its accomplices.

c.       Lawyers should partner with other partners such as Transparency International, Publish What You Pay, the Extractives Industries Transparency Initiative and related advocacy Civil Society Organizations to call out, actively engage and support action against Glencore on these six cases.

17.  With regard to reparations, the lawyers and other stakeholders noted that:

a.      Reparations does not only refer to restitution, but it should be looked at broadly to also include compensation, rehabilitation and guarantees of non- occurrence of the violations.

b.      There is need to lobby and advocate for institutional reforms for instance in global financial infrastructure so that there is change in how Africa is treated.

18.  The legal profession in Africa is therefore called upon to: –

a.      Raise awareness, knowledge and capacity of lawyers, law firms, law schools and other legal institutions on the procurement, utilisation, management and repayment of sovereign debt;

b.      Review, at national, regional and continental levels, the applicable laws, rules and regulations governing the procurement, utilisation, management and repayment of sovereign debt;

c.       Strengthen these laws, rules and regulations where they have gaps, lacunae or are otherwise not strong enough to promote and protect the interests of African citizens;

d.      Formulate model debt contracts to be utilised by African Governments and law firms in negotiating better loan agreements which respects and human rights of African populations;

e.      Continue to combat corruption and illicit financial flows from Africa, including through popularising and implementing the: –

                                                  i.      Recommendations of the African Union High-Level Panel on Illicit Financial Flows from Africa (AU HLP-IFF);

                                                 ii.      PALU Code of Ethics on Anti-Corruption and Professional Compliance Standards for Lawyers Working in Africa.

f.        Challenge the legality, fairness and legitimacy of the current global financial architecture, with Africa’s sovereign debt as one of the entry points;

g.       Deploy strategic litigation, where appropriate, to promote transparency, public participation, and accountability;

h.      Conduct legal case analysis for debt justice and other development finance issues that can serve as a potent tool of social engineering.

19.  National lawyers’ associations are called upon to: –

a.      Increase their knowledge and capacity to be better able to inform and contribute to the rewriting of the national rules and laws geared towards improving prudent debt management, tax and climate justice and contribute to reforming the global financial architecture;

b.      Join regional and international lawyers’ networks and working groups to benefit from the collective expertise, networking opportunities, professional development and access to resources critical for their work.

20.  Regional lawyers’ associations are called upon to: –

a.      Promote and support the necessary interactions between national, regional and international bars;

b.      Provide professional development and capacity on developmental issues such as development finance (debt, tax, climate, mineral resources governance) so that the legal profession can effectively and actively contribute to the development of the African continent.

21.  PALU, in particular, is called upon to: –

a.      Draft model frameworks for debt negotiation and model debt contracts or clauses, for use by the AU Member States, and to assist the public to engaging in and analyse debt processes;

b.      Draft Force majeure clauses and advocate for their inclusion in all public debt contracts to relieve parties, especially African countries, from liabilities that result from natural disasters like covid and climate- creating fiscal crisis beyond the borrowing nations. This should automatically suspend debt servicing obligations to prioritise human lives and dignity.

c.       Draft customisable guidelines for public interest litigation.

d.      Review of tax laws and policies to identify clauses that are subject to interpretations that may potentially make tax evasion and avoidance.

e.      Conduct case law analysis to assist public interest litigation.

f.        Request, from African international courts and tribunals, Advisory Opinions on various legal and human rights aspects of sovereign debt, climate mitigation and tax issues.

g.       Provide capacity-building to lawyers on: –

                                                  i.      Profound understanding of development finance issues such as debt, tax, illicit financial flows mineral and resources governance.

                                                 ii.      Drafting of model contracts issues such as debt and mining development agreements.

                                               iii.      Effective public interest litigation on debt, tax, climate, human rights and other related issues.

h.      Seek the full and timely operationalisation of the African Court of Justice though the ratification of the: –

                                                  i.      Protocol on the Statute of the African Court of Justice and Human Rights;

                                                 ii.      Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the Malabo Protocol).