FINAL COMMUNIQUE OF THE 1ST AFRICAN BAR LEADERS’ CONFERENCE APRIL 13, 2016 LAGOS STATE, NIGERIA
1. The 1st African Bar Leaders Conference” convened upon the invitation of the Nigerian Bar Association, was held at the Intercontinental Hotel, Victoria Island, Lagos State, Federal Republic of Nigeria from 10th- 13th April 2016.
1.1. The Conference took place under the theme: “Reducing Poverty and Promoting Sustainable Economic Growth in Africa through Reforms in Administration of Justice”.
1.2. Conference was attended by Bar Leaders and/or their representatives from the following countries:
Benin, Burkina Faso, Cameroon, Cote d'Ivoire, Gambia, Ghana, Guinea, Kenya, Liberia, Malawi, Niger, Nigeria, Rwanda, Sierra Leone, Tanzania/ Zanzibar, Togo, Tunisia, Uganda, Zimbabwe.
Apologies were received from the following countries: Botswana, Ethiopia Mali, Senegal, and South Africa
1.3. In attendance were also representatives from the following: the African Bar Association, African Legal Support Facility of the African Development Bank, African Court on Human and Peoples Rights, East African Law Society, Community Court of ECOWAS, International Criminal Court, Pan African Lawyers Union, West African Bar Association.
Apologies were received from the African Commission on Human and Peoples Rights and the SADC Lawyers Association
1.4. H.E Akinwunmi Ambode, The Governor of Lagos State, and Host of the 1st African Bar Leaders Conference, through his Attorney – General and Commissioner for Justice, Mr. Adeniji Kazeem, officially opened the Conference.
1.5. The official opening ceremony of the conference was also addressed by Honourable Justice Mahmoud Muhammed, The Chief Justice of the Federal Republic of Nigeria, who was represented by Honourable Justice Kudirat Kekere-Ekun, Justice of the Supreme Court of the Federal Republic of Nigeria; Alhaji Adebayo Shittu, The Honourable Minister of Communication, Federal Republic of Nigeria, Nigeria; Mr. Elisha Banda, President, Pan African Lawyers Union; Mr. Hannibal Uwaifo, President, African Bar Association; Mr. Augustine Alegeh, Senior Advocate of Nigeria, President, Nigerian Bar Association; Mr. Olawale Fapohunda, Chairman, Conference Planning Committee; Mrs. Eire Alufohai, Executive Director, Nigerian Bar Association .
1.6. Mrs Fatou Bensouda, Prosecutor of the International Criminal Court, delivered the Keynote Address at the Opening Ceremony through her representative Mr. Phakiso Mochochoko, Director, Complementarity and Cooperation Division, International Criminal Court.
2. Conference – Purpose and objectives
2.1 The purpose of the Conference was to bring together leaders of Bar Associations and Law Societies in Africa to exchange and share practical experiences about the linkages between justice sector reform, poverty alleviation, economic growth and development of the African continent.
2.2 The Conference also provided an opportunity for Bar Leaders in Africa to agree on strategies aimed at strengthening collaboration among Bar Associations at the sub-regional and regional level.
2.3 The development of a common vision for the administration of justice in Africa with possible support from the AU and RECs was also an important objective of the conference.
3. The Proceedings
Conference sub themes
3.1 The Conference received presentations on the following themes:
• Rwanda: Justice after Genocide -22 Years On.
• Situation of Administration of Justice in Africa.
• State of Justice Institutions in Africa.
• Terrorism, Security, Human Rights and Administration of Justice.
• WTO, Globalisation of Legal Services and the Practice of Law in Africa.
• Poverty alleviation & Economic Growth: Removing Legal & Regulatory Obstacles to Doing Business in Africa.
• Collaboration/ Cooperation among Bar Associations in Africa.
• Building working relations between the African Legal Support Facility, AfDB and the Legal Profession in Africa.
3.2 Overview of Participants Discussions
On Rwanda: Justice After- Genocide- 22 Year On
Participants observed that:
• The Conference was taking place during the 22nd Anniversary of the Rwanda Genocide and therefore welcomed the solidarity with the International Community and the government and people of Rwanda.
• An estimated 1 million people, mostly from the Tutsi ethnic group, were systematically killed in Rwanda by Hutu extremists in what has become known as one of the most shameful episodes of the twentieth century.
• Rwandan Genocide was made possible by a failure to act on the early signs of genocide. There were warnings but the International community failed to listen resulting in murder on a scale and at a speed not seen since World War.
• Rwanda developed her own informal mechanisms Gacaca in bringing justice to perpetrators of the genocide and victims alike. Gacaca’s primary aim was not to seek “punishment alone, but also reconciliation, seeking to restore a sense of social cohesion by facilitating face-to-face resolution between victims and perpetrators.
• The International community will only prevent future acts of genocide by learning lessons from past tragedies such as the Rwandan genocide.
• The International community has since made important strides in acting on the lessons from Rwanda (1) the world is now united against impunity, epitomized by the establishment of the International Criminal Court [ICC]. International and UN-assisted tribunals, including the International Criminal Tribunal for Rwanda, are pursuing accountability and having a discernible deterrent effect on would-be violators of basic International norms. (2) The International community has endorsed the “Responsibility to Protect” principle; States can no longer claim that atrocity crimes are a domestic matter beyond the realm of International concern.
• It is crucial that the U.N. and other organizations in potentially violent states share early indications of potential atrocities especially in areas of Africa where poor economic conditions could trigger another genocide.
• Genocide does not have to occur for us to find new ways to prevent genocide
On the situation of Administration of Justice in Africa
Participants observed that:
• An efficient system of administration of justice that ensures respect for the rule of law and human rights, among other things, is crucial to Africa’s socio-economic and political development and in dealing with the numerous other development challenges that the continent faces.
• An overview of developments in Africa over the last two decades reveals a growing commitment by Governments to the principles of human rights, to rule of law, to the ideals of transparent, accountable and democratic governance, and to a properly functioning justice system.
• There has been a growing recognition by African Governments that a properly functioning justice system is not simply a matter of law and justice but is an important factor in achieving economic growth and social inclusion.
• In developing administration of justice programmes on the continent, priority has to be given to the needs of the poor, vulnerable and marginalized groups by enhancing their access to justice by tackling discrimination, ensuring minority participation, recognizing indigenous systems and paying attention to the rights of women and children.
• Access to justice is vital in reducing poverty and strengthening of democratic governance. Promoting access to justice on the continent should necessarily include encouraging non-traditional users, promoting the use of new dispute resolution mechanisms, and creating new rules on legal standing.
• The prospects for justice, human rights protection and the rule of law in Africa are inextricably linked with the future of constitutionalism on the continent.
• The experiences of the last two decades indicate that more needs to be done to maintain the reasonable progress that has been made and maintain the pressure and momentum for change.
• Corruption is a major challenge to sustainable development in Africa. Bar Leaders should support initiatives aimed at establishing and strengthening national anti-corruption institutions, developing strategies and laws to prevent corruption, and designing and implementing appropriate interventions.
• The challenges facing African countries in the area of administration of justice are broadly the same even if they have employed a combination of solutions.
• African Bar Leaders need to promote broader dialogue, exchange of information and avenues for cooperation among African lawyers, judges and other legal experts. Legal harmonization will facilitate the enhancement of administration of justice in the continent while also advancing economic cooperation and development among African countries.
On the State of Justice Institutions in Africa
Participants observed that:
• The important role of an independent judiciary in socio-economic and political growth of African countries is now, unlike in the recent past, recognized and accepted. However, there remains numerous problems such as judicial corruption, underfunding and lack of adequate resources, judicial conservatism, huge backlogs of cases leading to long delays, inefficiency of staff, inaccessibility of courts to the poor because of cost and their location in urban areas, and the politicization of the judiciary.
• Two important things need to be done to strengthen judicial independence. Firstly, there is a need to entrench the core principles of judicial independence in the constitutions of African Countries, rather than in ordinary legislation. Constitutionalizing judicial independence in this way is no guarantee against unwarranted interference by the executive arm, but it will increase the odds against such interference. Secondly, it is necessary that the bodies that decide important issues such as appointments, promotions and dismissal of judges be made less vulnerable to partisan manipulation. They should be constituted in such a manner that the chair and majority of members are independent of the executive.
• The creation of African sub-regional and regional justice institutions as well as other International justice institutions adjudicating on matters from Africa is largely as a result of weak, ineffective and often corrupt national justice systems.
• There have been positive best practices from Africa. Citizens of ECOWAS member states can now file complaints against human rights violations of state-actors at the regional Court of Justice. Particularly noteworthy is that local remedies do not need to have been exhausted before cases are brought to the ECOWAS Court of Justice.
• The urgent need for Africa to squarely confront impunity and the mass violation of human rights, led to the establishment of the African Commission on Human and Peoples Rights and subsequently the African Court on Human and Peoples Rights. African countries also gave strong support for the establishment of the International Criminal Court (ICC). Today, 43 African countries are signatories to the Rome Statute and, of these, 31 are states parties.
• African countries have come to be critical of the ICC and relations between the African Union and the court are currently severely strained.
• Under the principle of complementarity the ICC is supposed to work as a complement to, and not a replacement of, national jurisdictions. The Court is mandated to investigate and prosecute those accused of the most serious crimes of International concern, but only if the national jurisdiction is unable or unwilling to do so. Difficulties arise when the national jurisdiction is reluctant to prosecute.
• African Bar Leaders should develop advocacy strategies to apply gentle but persistent pressure on the AU and African Governments to strengthen national justice systems, implement its own strategies for combating human rights violations and to operationalize the courts including the African Court on human and peoples’ rights that are supposed to sanction human rights violations on the continent.
On Terrorism, Security, Human Rights and Administration of Justice
Participants observed that
• There is a need for Bar Associations on the continent to strengthen their understanding of the complex and multifaceted relationship between human rights and terrorism.
• Terrorism has a direct negative impact on human rights, in particular the rights to life, liberty and physical integrity.
• Terrorist acts can destabilize African Governments, undermine civil society, jeopardize peace and security, and threaten social and economic development. All of these have a direct impact on the enjoyment of fundamental human rights.
• The promotion and protection of human rights while countering terrorism is an obligation of African States and an integral part of the fight against terrorism. Counter-terrorism strategies in Africa should, above all, seek to prevent acts of terrorism, prosecute those responsible for such criminal acts, and promote and protect human rights and the rule of law.
• Security of the individual is a basic human right and the protection of individuals is, accordingly, a fundamental obligation of Government. African States therefore have an obligation to ensure and safeguard the human rights of their nationals and others by taking positive measures to protect them against the threat of terrorist acts and bringing the perpetrators of such acts to justice.
• There has been a proliferation of security and counter-terrorism legislation and policies across Africa, much of which has an impact on the enjoyment of human rights. Anti- Terrorism legislation in many Africa States have created negative consequences for civil liberties and fundamental human rights.
• Some States have engaged in torture and other ill treatment to counter terrorism, while the legal and practical safeguards available to prevent torture such as regular and independent monitoring of detention centres have often been disregarded. These practices, particularly when taken together, have a corrosive effect on the rule of law, good governance and human rights. They are also counterproductive to national and International efforts to combat terrorism.
• Respect for human rights and the rule of law must be the bedrock of Africa’s’ fight against terrorism. This requires the development of national counter-terrorism strategies that seek to prevent acts of terrorism, prosecute those responsible for such criminal acts, and promote and protect human rights and the rule of law.
• An effective and prevention-focused response to terrorism should include a strong criminal justice element. Perpetrators of terrorist acts should be treated as criminals, and they should therefore be dealt with by the criminal justice process, as it is the most appropriate and fair mechanism to ensure that justice is achieved and that the rights of the accused are protected.
• Criminal justice approaches to terrorism also provide for effective prevention mechanisms, including interventions that target the funding of terrorists and terrorist organizations and allow for the interception of conspiracies to commit attacks and the prohibition of incitement to terrorism.
• To provide an effective criminal justice response to terrorism, African States need to adequately strengthen their criminal justice systems and institutions- law enforcement, Judiciary, Prisons and access to justice institutions.
• African States need to address the conditions conducive to the spread of terrorism and strengthen their individual and collective capacity to do so.
On WTO, Globalisation of Legal Services and the Practice of Law in Africa
Participants observed that
• The Legal profession in Africa should continuously be aware of new global trends influencing legal practice, so that they can timeously prepare for such changes and position themselves accordingly. Only when this is done consistently, can firms on the continent continue to grow and prosper.
• The ability of African law firms to benefit from globalization of legal practice will be driven by the extent to which the lawyers can continue to remain relevant to global clientele, respond quickly to their changing needs and provide high quality advice both cost effectively and efficiently.
• International trade in legal services has ensured that the legal profession and the business of law will never be the same again. This should not be viewed as a cause for concern, but rather a recognition that the legal market is presently moving more quickly than ever in its history. It represents a wonderful opportunity for the legal profession in Africa to prosper and excel.
• Africa’s negotiation position has generally been to support a limited licensing position. This allows a ‘limited’ right to foreign lawyers ‘to provide advisory services in foreign and International law, but not a right to appear before African courts to represent clients, unless the foreign lawyers have fully satisfied the admission requirements to practice law in the respective African countries.
• Africa should pursue a liberalized regime for legal services. This liberalized regime must focus on building capacity through strengthening educational infrastructure and standards of practice. An increase in capacity will hedge against the argument that liberalization of legal services would lead to a loss of employment opportunities for local lawyers. Rather, the competition should be taken as a challenge to increase capacity to the standard of International best practices.
• There is the need to organize the African legal sector for greater competition against the backdrop of the changing economic global realities. The primary issue facing this sector is not just that of liberalization and providing access to foreign firms, but also the weaknesses and regulatory gaps that affect its global competitiveness.
• African countries should shift their focus to Africa. Bar Associations and Law Societies in Africa should work together to enhance relationships and build a mutual understanding of the environment that will lead to the globalisation of legal practice. Consideration should be given to the establishment of pathways for law firms in Africa to practice in African countries in ways which are acceptable to the host countries. This can be achieved not by discarding national regulations but by loosening rules on entry.
• African Bar Leaders should consider the desirability of drafting model Uniform Rules pertaining to lawyers who intend to practice outside their home jurisdictions on a scale that covers the entire continent. These rules must encompass qualification and practice requirements, such as, the global standardization of qualifying certificates and disciplinary measures to be meted out to erring practitioners operating outside their own jurisdiction.
• African countries must also be ready to adjust their laws for ease of trade in legal services and move towards a harmonization of business laws on a wider scale. This begins by implementing a unified curriculum on business law at the university level as a foundation to encourage International legal practice within the continent. In this way, legal practice in each country is not far removed from each other and lawyers can easily move their expertise within borders. National Bars should also aim to be more proactive by incorporating International elements in their continuing legal education programmes.
• There must be unification of African Lawyers Associations i.e. Pan African Lawyers’ Union (PALU) and the African Bar Association, to provide a unified voice on liberalization of legal services when African lawyers speak globally.
On Poverty alleviation & Economic Growth: Removing Legal & Regulatory Obstacles to Doing Business in Africa
Participants observed that:
• Poverty reduction programmes are in place in virtually all countries on the continent regardless of their geography or other differences such as whether they are landlocked or coastal, mineral-rich or mineral-poor, have favorable or unfavorable for agriculture, and regardless of their colonial history.
• Africa is one of the world’s fastest growing regions. Six of the worlds 10 fastest growing markets are in Africa.
• Many African States have recognised the need to improve the ease of doing business as a key catalyst to being competitive players in the global economy.
• A thriving private sector is key to Africa's economic growth. Too often, entrepreneurs are faced with legal and regulatory obstacles that prevent them from creating new businesses or growing existing ones.
• Sub-Saharan Africa's long-term growth performance will need to improve significantly for the region to visibly reduce poverty and raise the standard of living to an acceptable level. There is a very strong relationship between improving the climate for business and prosperity.
• Businesses in African countries face much higher regulatory burden than those in other Continents. Over regulation is a major problem and an obstacle to doing business. This is a major obstacle to doing business in Africa where a large percentage of the economy is informal.
• Inadequate legal systems on the continent are a major problem. Private investment will not take off where investors and lenders lose their capital because a dysfunctional court system fails to enforce contracts and property rights.
• The World Bank’s ‘Doing Business Report’ is an important reference material that articulates the current state of affairs of the business environment not just for Africa, but also for 189 economies in the world. The report ranks countries according to how conducive their business environment is and therefore how well they are able to attract businesses.
• In Africa, Rwanda is singled out as having implemented the largest number of reforms in Africa over the course of the past decade - Rwanda has made significant progress in reducing unnecessary regulations and establishing a legal framework that is conducive for doing business. The momentum for business reforms is very high across all government agencies in Rwanda. Rwanda is committed to addressing all barriers to business entry, business operation, and business expansion.
• 16 African country members of OHADA have upgraded their shared set of nine laws designed to regulate business. The goal is to revise those laws governing West Africa's business owners, and to attract more domestic and foreign investment. In December 2010, OHADA adopted two crucial revisions to its General Commercial Secured Transactions laws. As a result, lending banks now accept a much wider range of assets as collateral, rather than just real estate, to which most people lack formal title. Prior to the reform in OHADA countries, half of all African private companies seeking loans were blocked by such constraints.
• African Governments can use the Doing Business Report to identify the steps they can take to improve the environment for business, including using the report to learn from the ways in which other countries address the same challenges.
• Bar leaders can support the monitoring process by measuring regulatory costs and identifying the biggest opportunities for improvements.
On Collaboration/ Cooperation among Bar Associations in Africa
Participants Observed that:
• African Bar Leaders on the continent should design programmes at the regional and sub-regional levels to facilitate networking and cooperation between Bar Associations and Law Societies. Aspects to be considered include: best practices in the administration of Bar Associations/ Law Societies, drawing up a Directory of specialized law firms and lawyers competent and willing to carry out cross border practice; regularity of meetings; regional wide options for continuous legal education and training; awareness campaign and information dissemination; communication and possible links and cooperation with the AU and RECs.
• There is a need for the legal and institutional strengthening of existing regional groups of Bar Associations and Law Societies to respond to the needs of the legal profession, promote legal jurisprudence and good governance in the sub-region. Support should be given for the establishment of regional groups where such does not exist.
• The African legal profession should speak with one voice on important issues affecting the legal profession, the justice sector and the political and economic development of the African continent.
On building working relations between the African Legal Support Facility, AfDB and the Legal Profession in Africa.
• The African Legal Support Facility (ALSF) is a public International institution hosted by the African Development Bank (AfDB) Group. The Facility is dedicated to providing legal advice and technical assistance to African countries in negotiation of complex commercial transactions, creditor litigation and other related sovereign transactions.
• The ALSF also develops and proposes innovative tools for capacity building and knowledge management. An important programme of the facility is the Capacity building programme for legal experts from Africa. The first capacity building project entailed working with the Pan-African Lawyers Union (PALU) to host training workshops for legal experts in Africa in complex commercial transactions.
• A comprehensive survey of law firms throughout Africa remains to be undertaken. A study of African law firms could provide important information on aspects of these firms including their staff, network contacts, clients, government links and revenue streams.
• In order for Bar Associations on the continent to take advantage of the programmes provided by the ALSF it is necessary to have a better understanding of its mandate, programmes and opportunities that exist for collaboration.
• ALSF will consider hosting a desk for an intern from one of the Bar Associations, representing the African Bar Leaders Forum to facilitate ease of communication between the ASLF and African Bar leaders.
• Conference welcomed the commemoration of the 22nd anniversary of the Rwanda genocide. Observed that it is important that lessons from this tragic episode in Africa’s history are properly learnt. Resolved to join the International Community in the annual commemoration of the Rwandan Genocide.
• Conference observed that the challenges facing African countries in the alleviation of poverty and administration of justice are largely similar. Further observed that there exist best practices on the continent on legal and judicial reform. Resolved to launch an electronic forum to enable frequent exchanges, reach those who were unable to attend the conference and to build upon the partnerships forged during the conference.
• Conference noted the need for the legal profession in Africa to have one voice in the articulation of issues affecting the legal profession and the administration of justice on the continent. It resolved to seek the possibility of harmonizing the activities of the PALU and AFBA. Conference appointed Committee of four (4) members comprising Bar leaders from Uganda, Rwanda, Tanzania and Nigeria to facilitate dialogue between PALU and Afba.
• Conference observed the need for the legal and institutional strengthening of the West African Bar Association, further observed the need for West African Bar Leaders to be familiar with the constitution of WABA. Conference appointed a Committee comprising of Bar Leaders from Nigeria, Liberia, Togo, Benin and the Deputy General Secretary of WABA to review WABA constitution and advise bar leaders in the region on membership and organizational structure.
• Conference noted the discussion within the East African Community States on cross broader legal practice in East Africa. Urged the East African Law Society to disseminate to Bar Leaders detailed information on this development and the proposed legal framework.
• Conference observed that International justice systems have focused on the African countries because of the inability and unwillingness of African States to prosecute perpetrators of serious human rights violations. Resolved to develop an Africa wide programme aimed at strengthening the judicial system in their countries.
• Conference noted the strain in the relationship between the International Criminal Court (ICC) and the AU. Recalled that African countries provided support for the establishment of the ICC. Observed that African States brought many of the communications being investigated by the ICC on the situation of human rights in African countries to the attention of the ICC. Urged the ICC to continue to seek common ground with the AU. Further observed that Bar Associations on the continent need better appreciation of the work of the ICC in other to intervene appropriately in the dispute between the ICC and the AU. Resolved to request for a comprehensive briefing from the office of the Prosecutor on the status of investigations and prosecutions of right violation on the continent. Further resolved to disseminate the briefing note to all bar leaders on the continent to enable an informed discussion of the issue.
• Conference noted the impact of the WTO agreement on the trade in legal services in Africa. Observed that Africa needs to adopt a common approach to the globalization of legal practice. Further observed with concern that Africa is a major importer of legal services. That many Africa states prefer importation of legal services even when there exists local skills and expertise. Noted the need to engage the African Union and RECs to put in place measures aimed at ensuring that African Governments recognize, engage and give priority to African lawyers and law firms in all matters of legal advice and representation. Resolved to meet with the General Counsel of the AU with a view to placing this issue as part of the agenda at the next meeting of Ministers of Justice and Attorneys- General of the AU.
• Conference noted the importance of the mandate of the African Legal Support Facility of the Afdb and observed that an important component of the programme of the facility is developing the capacity of the legal profession in Africa. It resolved (1) to seek more information from ALSF on the specific content of its capacity building programmes for African Lawyers (2) to work out modalities with the ALSF for an internship programme for nominees of African Bar leaders including establishing a desk in the offices of the ALSF (3) engage the ALSF on modalities for hosting the 2nd ABLC.
• Conference welcomed and accepted the offer of the Tunisian Bar Association to host the 2nd African Bar Leaders Conference in Tunis. It directed that a Conference Planning Committee be established to include nominees from the Tunisian Bar Association and Conference Secretariat to facilitate the organization of the 2nd African Bar Leaders Conference.
• Conference resolved that the 2nd African Bar Leaders Conference will be held in Tunis, Tunisia April 16-19, 2017.
• Conference noted the need for transition arrangements and resolved that the Nigerian Bar Association should host the Secretariat of the African Bar Leaders Forum until 16 April 2017. Further resolved that the Nigerian Bar Association should give frequent reports as necessary to African Bar Leaders on the implementation of Conference Resolutions.
• Conference invited the President of the Nigerian Bar Association to provide leadership for the African Bar Leaders Forum until the 2nd African Bar Leaders Conference in Tunis where final decisions will made on the institutional structure of the forum.
Conference expressed its appreciation to the Nigerian Bar Association for hosting the 1st African Bar Leaders Conference. Conference thanked the Government and People of Lagos State for the warm hospitality extended to all the delegates and for the excellent conference arrangements.
Augustine Alegeh SAN, FCIArb.[UK] Olawale Fapohunda
President, Nigerian Bar Association Chairman, Conference
Dated this 13th Day of April, 2016.