By Casey Sahadath (special to CDHR)
In the 2013-2014 Union Budget of India, the Government of India allocated 80,194 crore ($13.6bn USD) for rural development. In the US, the President’s budget request for 2014 calls for $647 billion in national security spending. The UK’s budget anticipates that the government will receive £167 billion ($280bn USD) in income tax revenue for the 2014-15 fiscal year. Consider if that money were to disappear; India’s funds allocated for rural development, the entire defense budget of the United States, and all the tax revenue collected in the UK. These figures make an approximate total of $940 billion, a substantial amount of funds. In 2010, Global Financial Integrity (GFI) estimated that developing countries lost between $859 billion to $1.06 trillion annually to illicit financial flows (IFFs) between 2002 and 2006. To put things into perspective consider what would happen if India, the US, and UK lost $940 billion annually for four consecutive years. What would be the effects on infrastructure, development, national security, and social services? Would these countries be able to meet debt obligations to their creditors, would they be able to reduce their deficits? What would be the effects of this asset loss on their citizens?
For many in Africa, this has been a reality for decades. Despots, corrupt government officials and corrupt heads of state move billions of dollars from government coffers into lucrative, opaque bank accounts in jurisdictions which provide ironclad secrecy from nosy citizens and special rapporteurs tasked with monitoring corruption. Wealthy elites and corporations uninterested in paying tax on their incomes or revenue often incorporate themselves or their businesses in jurisdictions which provide a more favourable tax structure, stealing potential tax revenue away from countries that need it the most. As Mick Moore writes in the book Draining Development, IFFs diminish economic growth, reduce and stagnate state capacity, and ultimately exacerbate income inequality. Instances of this theft in Africa, particularly among heads of state, have been well documented over the years; General Sani Abacha of Nigeria stole approximately $1.8 billion in cash from Nigeria’s central bank during his reign, 35 year incumbent President of Equatorial Guinea, Teodoro Obiang Nguema Mbasogo, took personal control over the national treasury in 2003 to fight corruption from corrupt bureaucrats and subsequently deposited $700 million into American banks, and deceased ruler of Libya Muammar Gaddafi has assets hidden globally at a conservative estimate of $200 billion.
Africa and its constituent countries lose billions annually and as a consequence are losing the potential to fund domestic development initiatives to improve education, public health, and alleviate poverty. As a further consequence, IFFs have hamstrung the efforts of African states to tackle the Millennium Development Goals (MDGs) and could continue to act as a hurdle in meeting the goals and targets of the Sustainable Development Goals (SDGs) set to replace the MDGs at the end of 2015. That being said, the issue of IFFs and the impact it has on the continent have been high on the priority of international organizations like the United Nations (UN), continental bodies such as the African Union (AU), as well as regional organs and NGOs based inside and out of Africa.
This report will be broken down into three subsequent sections regarding IFFs in Africa and proceed as follows. Section I provides a brief backgrounder on IFFs in Africa as well as establishes a typology for IFFs. Section II will explore existing initiatives at the international and continental levels as they relate to IFFs out of Africa. Section III will examine existing criticisms lodged by African scholars, politicians, and commentators about the state of international anti-IFF initiatives.
Section I: A brief history of IFFs on the continent, and establishing a typology for IFFs
IFFs in Africa are not a new phenomenon brought to light by Global North countries at the advent of the 2008 global financial crisis. As noted in the preceding section, there is an extensive list of leaders who have utilized the public purse as a personal expense account. IFFs out of Africa can easily be traced back into the continent’s colonial period to leaders like Leopold II, former King of Belgium and sovereign of the Congo Free State who notoriously amassed a personal fortune in extracting Congolese ivory and most importantly, rubber in the late 19th century.
Why IFFs out of Africa? Why not Europe, Asia, or South America? To be fair, IFFs are a global issue, affecting all continents and countries on both sides of the development spectrum. In order to answer the question “Why have IFF’s been so prevalent in Africa?” in a non-exhaustive way it is important to look at 3 main factors; (1) extractive industries involved in Africa, (2) lack of state capacity, and (3) corruption.
Extractive industries involved in oil, gas, and mineral resources often fall under high-level discretionary political control and are prone to internal financial and operational secrecy, coupled with the high degree of technical knowledge required to interpret the details of extractive industry projects report falsifying and profit shifting is significantly easier in the extractive sector. Furthermore, state companies involved in extractive sectors often distort what constitutes public interest and what is actually personal interest. Consider the fact that reports from diamond importing countries suggest that African diamond exporters routinely underreport production for smuggling and tax evasion purposes, while fuel exports accounted for almost half of Africa’s IFFs between 1970 and 2008. While extractive industries are particularly volatile and ubiquitous in Africa, dishonest commercial trade as a holistic vehicle for IFFs is the broader problem and main driver behind global and continental IFFs. Commercial trade fraud as a method for moving money across borders ranks as the largest component in global cross-border IFFs at 60-65% of the global total, with criminally sourced IFFs and public corruption sourced IFFs at 30-35% and 5% of the global IFF total respectively.
Lack of state capacity is an issue along a number of dimensions; anti-corruption compliance, policing and preventing the prosperity of underground and illicit economies, maintaining financial transparency among political elites and corporations, and most importantly enforcing taxation. Tax revenues are frequently lost in foreign trade through profiting shifting and trade mispricing. Between 2005 and 2007, Nigeria, Ivory Coast, and Ghana lost $821m, $260m, and $121m respectively through trade mispricing to the European Union (EU) and US. Corruption is interrelated with both extractive industries and lack of state capacity and is frequently listed as one of the main causes of IFFs out of Africa, and is one of the main targets for anti-IFF initiatives on the continent. Corruption vis-à-vis financial theft by political officials has a symbiotic relationship with money laundering in secrecy jurisdictions. It is easy to find empirical evidence of this, consider the vast amounts of natural resource wealth Muammar Gaddafi had laundered through savings and investment vehicles in Switzerland and other such secrecy jurisdictions.
It is useful to distinguish IFFs as IFFs can derive their capital from a variety of different sources. Alex Cobham establishes this typology by dividing IFFs into two categories, “illegal capital” IFFs and “legal capital” IFFs. Illegal capital IFFs obtain funds as a result of illicit activities such as drug and human trafficking, political corruption through bribes, or the theft of state assets. “Legal capital” IFFs are instances in which funds being funneled out of a country are potentially legal but the transactions which move said funds are illicit, this is achieved corporate and individual tax abuse, and market abuse through political conflicts of interest and regulatory abuse. African countries, international intergovernmental organizations, and African regional bodies are working to combat both “illegal capital” and “legal capital” IFFs as both are seen as harmful to domestic development and resource mobilization as well as societal security risk.
Section II: Existing international and continental anti-IFF initiatives
The United Nations has invested a great deal of its resources into not only amplifying the global conversation on IFFs but also promoting and encouraging states to commit to anti-IFF initiatives. The UN’s High-Level Panel on the Post-2015 Development Agenda noted that the successive framework to the original MDGs should be utilized to reduce corruption, IFFs, tax avoidance, money-laundering, and hidden ownership of assets. The open working group on the SDGs has included IFFs as a part of the post-2015 development agenda which is scheduled to be adopted by the United Nations in September 2015. Through the adoption of the post-2015 development agenda, UN states would commit to significantly reducing IFFs, arms flows, and strengthening stolen asset recovery by 2030.
The United Nations Economic Commission for Africa (UNECA) High Level Panel is one of the most influential bodies on the continent as it relates to anti-IFF initiatives. The panel was commissioned by the African Union and the Economic Commission for Africa’s Ministers of Finance, Planning and Economic Development in 2011. Since its formation the panel has produced a number of reports with its final research report, Illicit Financial Flows: Track it! Stop it! Get It!, released in January 2015. The panel’s final report is broad and thorough and is directed at a government audience. It includes a primer on the size and scope of IFFs out of African countries, a chapter on understanding the phenomenon known as IFFs, infographics on how beneficial ownership and offshore tax structures operate, how various strains of trade fraud work, the implications IFFs have on governance and development, and anti-IFF policy recommendations. The report’s findings and related policy recommendations are informed by the multiple years of research conducted by the panel. The findings are numerous and my paper will not be exhaustive in its discussion of the high level panel’s findings. That being said, the report found that African IFFs are large and increasing, between 2002 and 2011 IFFs from the continent rose at 20.2% annually. It also echoed statements from organizations like GFI, the Tax Justice Network, and Christian Aid that commercial trade in Africa is the continent’s major source of IFFs and called on African states to strengthen customs organizations, financial intelligence units, and other necessary institutions to monitor trade in their countries. Furthermore, a great deal of policy implications produced by the panel place the burden of action on multinational corporations and banks urging them to do business transparently and in accordance with the letter and spirit of national and international tax laws. The panel’s final report is of the utmost importance to fighting IFFs in Africa, and is critical reading to be considered by corporate executives, legislators and heads of state, aid workers, and development organizations.
Developing knowledge of political officials, bureaucrats, and the public is seen as important so that the complex nature of IFFs can be comprehended and sufficiently addressed, as is establishing integrated regional strategies and partnerships to combat IFFs. The former point is best illustrated in the UNECA’s final report on IFFs through its thorough explanation of the IFFs phenomenon and the illicit practices which move funds and assets. That being said other regional economic communities within Africa as well as the African Union and African Development Bank work to cultivate and disseminate greater knowledge on IFFs. The AU also works to bring together major African stakeholders at large collaborative sessions to discuss anti-IFF approaches, such as the Joint Conference of Finance Ministers of the African Union. The African Development Bank acts as a main driver in providing guidance to African states with regards to policy to curtail IFFs. In 2013 the AfDB called on African civil society to assist governments in the promoting and implementation of transparency initiatives, open budgeting processes, implementation of the Extractive Industries Transparency Initiative (EITI), and an open publication of financial activities by multinational firms engaged in Africa. The AfDB has also been an advocate for establishing tax cultures within African states, specifically the creation of pro-poor tax regimes which are seen as necessary to promote tax compliance among a broad base of African citizens as well being able to effectively utilize the tax system to catch funds lost through profit shifting and tax evasion schemes. Pro-poor tax regimes as well as establishing a culture of tax compliance steer citizens away from informal and indirect taxation methods which are not formally recorded and have embedded incentives for evasion.
In a collaborative report with GFI, the AfDB proposed a number of policy recommendations to increase transparency measures in order to curtail tax haven secrecy and anonymous financial vehicle usage. Aside from ensuring that African nations implement if not utilize and enforce existing anti-money laundering regulations, the AfDB-GFI recommendations call on customs departments to better detect and deter trade misinvoicing, advocate for capacity building within African financial institutions and tax authorities, and suggest that banks and known tax havens regularly report to the Bank for International Settlements (BIS) detailed deposit data by sector, and country of residence of deposit holders. The latter recommendation is tied to dissemination of cross-border banking dating and initiatives to make the banking data of tax dodging Africans and multinationals engaged in profit shifting in secrecy jurisdictions either publicly available, or at the very least available to civil society and researchers in international organization working groups. GFI’s President, Raymond Baker, has also advocated for customs organizations to tap into online databases logging global market prices of commodities. This would allow customs organizations to compare fair market prices for goods to the prices of goods being imported and exported through a given country allowing customs officers to compare and determine whether import and export prices are set higher for fraudulent purposes. Finally, the AfDB in conjunction with IFF researcher Alex Cobham recently noted that greater regional integration within Africa to stop IFFs has the potential to create a unified and more credible African position in the international arena which better reflects the diversity and uniqueness of African countries’ situations as they relate to IFFs. Cobham’s notion of a more “credible African position” on IFFs in the international sphere is important, as African criticisms of international anti-IFF initiatives often are centered around westernized approaches to African problems. These approaches ignore African particularities as the cause of IFFs such as heavy reliance on the extractive industries to generate revenue, or foreign firms doing business in Africa which participate in “legal” capital IFF practices such as trade misinvoicing and profit shifting.
The Africa Progress Panel, chaired by former UN Secretary-General Kofi Annan, recently issued their 2013 progress report, Equity in Extractives, which advocates for closing tax loopholes and declaring beneficial ownership to prevent profit shifting, tax avoidance, and anonymous corporate ownership by extractive firms conducting business in Africa. The pan-African TANA High-Level Forum on Security in Africa used IFFs as its central theme when it held its programme in April 2014. The Forum tied IFFs to peace and security on the continent through research which found that defense sectors in African countries are highly susceptible to corruption and IFFs due to long supply chains which often run through secrecy jurisdictions and anonymous financial vehicles. The forum also found that corruption among civil servants and military personnel tasked with handing military procurement establishes opportunities for asset leakage in the form of liquid assets as well as physical assets such as small arms, military intelligence, and other technical equipment. As such, TANA has recommended continental and regional integration initiatives to audit defense expenditures, and maintain continental registries of defense purchases.
Interestingly and perhaps not surprisingly African led anti-IFF initiatives focus more on the roles of individuals and multinational corporations engaged in tax avoidance schemes, and the role of secrecy jurisdictions in absorbing IFFs from the continent and preventing these assets from being recovered through the use of beneficial ownership and other anonymous financial vehicles. While anti-corruption is still discussed as a high priority to combat IFFs among African organizations, and TANA has coupled anti-IFF initiatives to continental and regional peace and security much like the OECD and other international intergovernmental organizations have, the tone of most African anti-IFF initiatives appear to put the onus of action on developed countries in fighting secrecy jurisdictions, bank secrecy, and global financial opacity. A cursory look through anti-IFF initiatives by Global North led organizations, development banks, and governments of developing countries view the keys to fighting IFFs on the continent as anti-corruption initiatives, resolving embezzlement in public procurement, greater oversight in aid delivery, and broad law and order solutions to fight illicit economies generated through drugs and other illicit substances and products.
This divide between African and Global North approaches to fighting IFFs is a point of contention among African scholars, African observers, and civil servants becoming a magnet for criticism.
Section III: Continental and Global Criticisms of international anti-IFF efforts
It is difficult to argue that IFFs gaining traction among international intergovernmental organizations like the Organization for Economic Cooperation and Development (OECD), the Financial Action Task Force (FATF), the International Monetary Fund (IMF), and the World Bank has been bad for global initiatives which seek to curtail IFFs. These organizations attract the attention of powerful developed countries like the United States, United Kingdom, as well as developed states known for absorbing IFFs such as Switzerland, Luxembourg, and Singapore. However, despite this increased attention from powerful global actors there has been criticism among Africans as well as other international observers that Global North states and Global North dominated international organizations like the OECD, World Bank, and FATF, have missed the mark with their initiatives to combat IFFs abroad, specifically in Africa.
In a 2012 bulletin for the Association of Concerned Africa Scholars, Nicholas Shaxson noted that while the OECD argues that developing countries should sign bilateral Tax Information Exchange Agreements (TIEAs) with tax havens, these agreements prohibit fact finding missions in which African states (Shaxson uses Ghana as an example) could put in information requests to secrecy jurisdictions for information about African nationals assets being held in foreign accounts abroad. Instead, with OECD TIEAs, victim countries are required to know specifically what assets are being held abroad, and who owns said assets before asking for further information from a secrecy jurisdiction. Shaxson accuses the Global North of deliberately hamstringing efforts to tackle tax havens as it is Global North states like the United Kingdom (including the City of London, its Crown Dependencies and Overseas Territories), the United States (with cities like New York, Miami, and states like Delaware), as well as France and Switzerland among other states that ultimately profit from providing these financial services. Instead, the OECD-led system attacks IFFs through methods of ensuring transparency in foreign aid, what Shaxson describes as the tried and tested palliated of rich countries, effectively focusing the blame of IFFs not on the countries that receive the outflows of funds from Africa but on the failure of African government to fight corruption and allocate foreign aid appropriately.
Liberia’s Minister of Foreign Affairs, Augustine Kpehe Ngafuan, contends Western states have been ineffective in their foreign aid at developing sufficient financial infrastructure to prevent IFFs. As a result, Ngafuan argues that Africa loses more in IFFs than what is received in aid, and that the failed efforts of Western countries to assist African states in developing systems to stop IFFs are the reason many African countries have failed to achieve the deliverables established in the original set of MDGs. The OECD’s chair of the Development Assistance Committee, Erik Solheim, has been critical of OECD nations not rising to the occasion to effectively tackle IFFs. Solheim notes that while momentum is building in the right direction to combat IFFs, OECD nations should do more to close tax loopholes and repatriate parked assets from secrecy jurisdictions and practice what they preach in terms of financial transparency. Christian Aid’s Joseph Stead believes that the final report from the UNECA’s High Level Panel is a powerful tool which Africa can leverage to make it more difficult for western intergovernmental organizations and other rich country blocs (like the OECD) to deny that tax dodging and fraudulent trade are not a top priority for African governments. While Solheim does not come out against tax havens and low taxes per se, he advocates for responsible capitalism with disclosure in ownership and assets held for the sake of the public interest. Despite many OECD countries attempting to defend the status quo as it relates to tax rules, beneficial ownership, and lower tax rates Solheim notes that political capital to address these issues among powerful countries is growing, citing instances of leading US corporations such as Starbucks, Google, and Amazon not paying taxes in the US or UK as catalysts for major OECD states to tackle the issue of profit shifting as it relates to IFFs.
Adopting a less critical line than Shaxson and Ngafuan, Nigeria’s minister of finance, Dr. Ngozi Okonjo-Iweala recently noted that a more effective way forward in combating IFFs would be one which sees donor states share knowledge and expertise in the development of revenue collection institutions, accountability mechanisms, and in supporting domestic tax reforms. Okonjo-Iweala contends that in the scope of funds that have been committed to anti-IFF initiatives in Africa only a limited amount has been devoted to improving and building tax systems whereas the bulk of anti-IFF funding and efforts from international intergovernmental organizations are dedicated to anti-corruption programs.
The common thread in criticisms of Global North led anti-IFF initiatives is that powerful developed states leading the charge against IFFs through bodies like the OECD and other international aid agencies ignore African points of view in how to best combat IFFs on the continent. Global North countries appear to be more concerned about addressing corruption and transparency in the public and private sector, rather than looking to combat banking secrecy and recover funds absorbed by tax havens which are the recipients of such flows. In this way the Global North and Global South do not appear to be speaking the same language in terms of conversations on how to resolve the IFF problem. Critics like Shaxson raise a valid point in saying that the Global North’s model for transparency is a deliberate failed attempt. Rich countries at the helm of massive organizations like the OECD disparage the Ghanas, Nigerias, and Liberias of the world by ignoring their suggested approaches to reduce continental IFFs and instead impose anti-IFF transparency and anti-corruption initiatives which make life comfortable for American, British, German, and French multinationals without having any positive affect on the developing countries they claim to assist. The OECD is guilty of doing this through the OECD model treaty which on its surface provides immutable transfer pricing guidelines for multinationals but actually ensures that the taxation of their operations by host countries is limited by separate company accounting and the permanent establishment concept. International tax expert and critic for Tax Analysts, Lee Sheppard, notes that the result of treaties like the OECD’s allow multinationals an effective loophole to pay no tax anywhere effectively undermining broader anti-IFF efforts. The foil to this OECD criticism is best presented by Dr. Peter Vale of the University of Johannesburg who has presented an indirect criticism of the African Union, questioning whether the organization possesses the necessary international clout in order to effectively lobby for corporate transparency and tax reforms in offshore financial centers in an international arena. In addition to concerns of the AU’s lack of clout in international forums, Vale is skeptical that any IFF related matters would reach the UN Security Council for deliberation. Furthermore, Vale contends that in order for IFFs to potentially be curbed the major issues driving IFFs in Africa, such as fraudulent trade, needs to reach the attention of global financial hegemons like the World Bank and International Monetary Fund (IMF). However, given that commercial derived IFFs in Africa are often set within the context of job creation and foreign investment, Vale is skeptical that the IMF and World Bank would take effective positive action against commercial trade based IFFs on the continent.
Mark Anderson of The Guardian notes that in many cases the impetus to curb IFFs has been to stop terrorist financing. At the heart of a number of Global North driven anti-IFF initiatives are Anti-Money Laundering and Combatting the Financing of Terrorism (AML/CFT) controls, these can be seen in literature produced by the G20, OECD, FATF, World Bank, etc… In the case of Africa, Anderson writes that AML/CFT controls have been developed and used to stop funds from reaching groups such as Boko Haram in Nigeria, and al-Shabaab in Somalia. The issue with anti-terrorism being the impetus behind anti-IFF initiatives is that criminal derived IFFs account for roughly a third of the global total of IFFs whereas trade related IFFs account for double that amount. The issue of IFFs doesn’t end at anti-terrorism. As the High Level Panel, Transparency International, the Extractive Industries Transparency Initiative, Corruption Watch, the Business and Human Rights Resource Centre, and many others have said the main problem behind IFFs is corporate and commercial trade. More needs to be done to police firms and banks that participate and facilitate these harmful practices.
Both the Global North and the Global South posit useful methods to potentially solve the IFF question, but both sides are unable to meet in the middle with congruous methods of fighting IFFs. A new partnership needs to be forged between the Global North and the Global South, wealthy countries and poor countries, in order to unite in fighting IFFs. Establishing a new partnership between these groups could provide a more fruitful relationship. The best vehicle for this partnership is the post-2015 Sustainable Development Goals, a global consensus on development that will set international goals for major developed countries and developing countries for the next 15 years. The global community needs to leverage the SDG’s as a means for advancing anti-IFF action as it would cement reducing illicit financial flows into an international document which could potentially be ratified by all UN member states. As GFI’s Tom Cardamone writes; “The SDGs must address illicit financial flows, and trade is the most widely used channel for moving illicit money. The final SDGs should include clear, concise, and measurable targets to curb illicit financial flows from trade misinvoicing by 50% by 2030.” Reducing IFFs is the key to secure greater domestic funds for development, and will help unlock and realize the potential of many African countries and their citizens. 2015 has the potential to be a banner year for international development and one for reducing illicit financial flows globally.
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