ACHPR PROJECT
SUMMARY OF ACHPR's PROJECT ON ILLICIT FINANCIAL FLOWS AND HUMAN RIGHTS IN AFRICA
The African human rights landscape is built upon the African Charter on Human and Peoples' Rights. Adopted in 1981, it is the first and only binding international legal instrument that embodies the principle that all human rights are inalienable, universal, indivisible and interdependent. Human beings by virtue of being human are born with these rights. They are applicable everywhere and to all people and the enjoyment of each right is not separate from any other as the right to participate freely in political activity and express one's opinion freely is predicated upon, for example, the principle that the person has already enjoyed and benefited from free and compulsory education thus providing the person with a foundation from which to understand the relevant political issues. The Charter deliberately includes these fundamental principles of universality, indivisibility and interdependence of human rights in its text and the ACHPR has continued to do so in its decisions, guidelines and normative documents.
The ACHPR noted that state parties to the Charter routinely claim that they do not have sufficient resources to fulfil their human rights obligations as listed above. International, regional and domestic tribunals have often heard that governments do not have sufficient resources to build courts, schools, hospitals, to train judges, prosecutors, doctors and teachers, to protect their people from human rights abuses by big companies. The argument of inadequate resources has been used to avoid being held responsible for the violation of a range of rights spanning the full spectrum of civil, political, social, economic and cultural rights listed above.
However, state parties to the Charter have the obligation under international human rights law to harness the maximum available resources needed to fulfil their human rights obligations. In the past, human rights bodies compared what states spent on defence as opposed to on health care for example. However, in the current context the attention has shifted from a focus on what states spend to a focus on whether a state is taking all necessary steps to harness the resources that are actually available. This obligation also requires state parties to review their fiscal policies and taxation regimes and to take steps in law and in practice to collect all the tax revenues due and to prevent money from leaving their countries illicitly. Thus states are required to ensure that their focus is firstly on ensuring that the cake is as big as it should be and secondly on how the cake is divided.
Inadequate laws and policies and practices such as entering into agreements that enable illicit financial flows constitute a breach of these obligations.
A distinguishing feature of the Charter is its list of duties. Article 29(6) requires that individuals have a duty to work to the best of their abilities and competence and "to pay taxes imposed by law in the interest of the society".
Early in the 1980s, the founding fathers of human rights in Africa through the Charter made a clear connection between human rights and tax by clearly incorporating the duty of the individual to pay tax. The recognition of rights of individuals and peoples as a focal point of development under the Charter does not preclude individuals from also having obligations, such as the duty to pay tax. Rights always have to go hand in hand with obligations so there is balance. In the interest of the society or the community, individuals ought to contribute to the budget of the state by paying tax to the extent of their capacity and their means. Consequently, for the state to ensure that this duty is fulfilled, there is need for the state to enact adequate tax laws and implement an efficient tax collection system. While it is a duty of individuals to pay tax under the Charter, it is therefore also a duty of the state to ensure that individuals are in fact paying. Tax systems and laws are complex and states consequently need sufficient resources to enable them to develop appropriate tax laws and to put in place an efficient system of tax collection. However illicit financial flows also impede a state's ability to create an efficient environment of tax collection thus creating a vicious cycle where inadequate tax laws and systems facilitate illicit financial flows on the one hand, while on the other hand illicit financial flows deprive states of the resources required to develop appropriate tax laws and tax collection systems.
Consequently, the ACHPR adopted Resolution 236 and intends to address this problem from a human rights perspective. The ACHPR appointed HRDI as its project secretariat to assist with the implementation of Resolution 236.
