Why and how Africa should extend its network of double taxation treaties with China
Posted: 17 March, 2014 Filed under: Eric Ntini Kasoko | Tags: BITs, Double taxation, DTTs, FDI, MNCs, OECD, UN model, WTo Leave a comment
Author: Eric Ntini Kasoko
PhD candidate, University of Liege (Belgium)
There are currently over three thousand double taxation treaties (DTTs) worldwide. DTTs are agreements between two states that are designed to relieve international double taxation and prevent fiscal evasion with respect to taxes on income. Double taxation occurs when the same income is subject to two, or even more, taxing jurisdictions, which may result in an impediment to cross-border trade and investment.
When concluding a DTT, the two sovereign states involved draw inspiration mainly from the OECD Model Tax Convention on income and capital (OECD Model). However, DTTs can also be based on the so-called UN Model, which is supposed to be a suitable framework for DTTs between developing countries and developed countries. Since DTTs have been traditionally viewed as one means of increasing the movement of foreign direct investment (FDI) to the developing world, African countries would find it advantageous, at least prima facie, to multiply such agreements with a country like China.
In defence of these “disgusting and unnatural”
Posted: 10 March, 2014 Filed under: Benjamin Ng’aru | Tags: African (Banjul) Charter, all persons, Anti-Homosexuality Act, constitution, discrimination, equality of all persons, freedom from inhumane treatment, gays, homosexual acts, homosexuality, human rights, International Covenant for Civil and Political Rights, International Covenant on Economic, Kill the Gays Bill, lesbians, life sentence, morality, Museveni, right to dignity, right to privacy, sexual orientation, Social and Cultural Rights, stigmatisation, Toonen v Australia, transgender, Uganda, un-African, United Nations, Universal Declaration for Human Rights, violence 9 Comments
Author: Benjamin Ng’aru
Legal Assistant, Local Authorities Pensions Trust; Volunteer Programmes Assistant, Legal Exchange Centre, Nairobi, Kenya
On Monday 25 February 2014, Uganda’s long serving president Yoweri Museveni signed the Anti-Homosexuality Act of 2014 (previously referred to as Kill the Gays Bill”). The Long Title thereof provides that this “Act [is intended] to prohibit any form of sexual relations between persons of the same sex; prohibit the promotion or recognition of such relations and to provide for other related matters.” Museveni has also, on record, called homosexuals “disgusting and unnatural” persons. The legislation has since received widespread condemnation from human rights organisations and leaders across the globe.
Whereas homosexuality was, since the colonial era, outlawed with the introduction of the British colonial rule and justice system, the new legislation is an all time low. Section 2(2) of the Act provides for a mandatory life sentence for persons convicted of “homosexual acts”. Section 1 of the Act has a wide margin of what constitutes “homosexual acts” such as “the touching of another’s breast, vagina, penis or anus, … however slight …. with any part of the body or through anything”.
AfricLaw and 2014
Posted: 10 March, 2014 Filed under: AfricLaw Leave a commentAlthough there have been no new posts in the first two months of the year 2014, AfricLaw remains committed to providing space for the discussion of issues of substance, forming of opinions and information sharing among people living on the continent. AfricLaw still strives to serve as a platform for Africans who are in the diaspora and anyone else who is interested to share their thoughts and opinions on the rule and the role of law in AfricLaw. And also to serve as a vehicle for comments on legal developments in the rest of the world.
AfricLaw: Almost two years later
Posted: 29 November, 2013 Filed under: AfricLaw Leave a commentFour months shy from its second year, AfricLaw continues to remain a point of reference for issues concerning the rule and role of law in Africa. This would not have been possible had in not been for submissions from 16 different countries, spanning across 3 continents, addressing issues ranging from prisoners’ rights, taxation methods in Africa, to the right to education – all in an effort to create a dialogue and to foster an interest on matters that affect Africa.
AfricLaw, as launched by the Centre for Human Rights and the Institute for International and Comparative Law in Africa, would like to extend a word of thanks to all contributors, visitors to the blogs, and those who have interacted with the blog one way or another. All your contributions are invaluable and we trust you will continue to support AfricLaw in the future.
We furthermore wish to extend an invitation for further contributions to students, academics, researchers, international and national civil servants, legislators and politicians, legal practitioners and judges.
AfricLaw wishes you a peaceful year-end holiday and we hope to ‘see’ you next year when posting will resume (note that contributions are still welcome throughout the holidays).
– AfricLaw Editorial Team
Drawing lessons from the protection of taxpayers’ rights in Europe
Posted: 13 November, 2013 Filed under: Eric Ntini Kasoko | Tags: Africa, African Charter of Human and Peoples’ Rights, citizens, Court of Justice, Economic Community of West African, Europe, European Court of Justice, European Court on Human Rights, fundamental rights and freedoms, human rights, international human rights law, investments, law, right to property, rule of law, tax, tax legislation, taxpayers, The National Co-ordinating Group of Departmental Representatives of the Cocoa-Coffee Sector v Côte d’Ivoire Leave a commentAuthor: Eric Ntini Kasoko
PhD candidate, University of Liege (Belgium)
“You can have a Lord, you can have a King, but the man to fear is the tax collector”- Sumerian proverb.
Today, fearing the tax man does not seem to hold true when it comes to the protection of taxpayers’ rights in most European countries. Indeed, for several decades now, taxpayers’ rights in Europe have been benefiting from internationalisation of human rights process. Under the impulse of case law from the European Court on Human Rights (ECHR) and the European Court of Justice (ECJ), human rights have become a fundamental part of taxation. While Africa is running the marathon of attracting and boosting private investments, it may be vital to stimulate the interaction of these two areas of law as a means to strengthen the rule of law on the continent.
In Africa, tax is primarily regarded as a civic duty. Article 29 (6) of the African Charter of Human and Peoples’ Rights (hereinafter referred to as “the Charter”) states that “the individual shall also have the duty (…) to pay taxes imposed by law in the interest of the society”. It follows in particular that the state has the right to levy taxes on its citizens, whether individual or corporate. In contrast, citizens are entitled to enjoy property rights in respect of Article 14 of the Charter or any other pertinent instrument relating to international human rights law. Since the state and its citizens have opposing interests, a balance is obviously required between the individual’s right to property and the state’s right of establishing taxes. In others words, in case of a dispute regarding taxation, the judge should be able to censure any excessively high tax burden on citizens.
The need for proper leadership to guide the Kenya National Commission on Human Rights in Promoting and Protecting Human Rights in Kenya
Posted: 11 November, 2013 Filed under: Francis Khayundi | Tags: human rights, human rights culture, independence, Kenya, Kenya National Commission on Human Rights, Kenyan Constitution, National Human Rights Institution, Paris Principles, representation, socio-economic rights 1 Comment
Author: Francis Khayundi
PhD candidate, Rhodes University, South Africa
The advent of the new 2010 Kenyan Constitution brought with it a promise of inclusive human rights enjoyment by making provision for socio-economic rights in Article 43. The entrenchment of the Kenya National Human Rights Commission (KNCHR) as an independent constitutional body, specifically tasked with the promotion and protection of human rights in Kenya, in terms of Article 59(1), further strengthened this development and promise. The KNCHR’s legal mandate, powers and the selection of commissioners is governed by the KNCHR Act of 2011.
Realising the importance of having an institution that could independently work towards the promotion and protection of human rights in Kenya, the drafters of the Constitution opted to include the KNCHR in the final draft, with a mandate that was whittled down from what was initially proposed. Through the Act, the KNCHR was established as a successor institution to the one initially anticipated in Article 59(1) of the Constitution. The KNCHR is a National Human Rights Institution (NHRI), an institution formed by either a constitutional provision or legislative text to specifically promote and protect human rights. There are quite a number of similar NHRIs formed across the globe. NHRIs are non-judicial mechanisms that complement other arms of government in the fulfilment of human rights within a state. They are also an indication of a state’s commitment to use all appropriate means to realise human rights. The establishment of NHRIs is guided by the Principles Relating to the Status of National Institutions (Paris Principles) which, at a minimum, require that such an institution be independent (financially, operationally and legally autonomous); have a broad mandate; have a diverse membership; and given enough room to carry out their functions.
Why Kenya needs to ratify the ICESCR Optional Protocol
Posted: 4 November, 2013 Filed under: William Aseka | Tags: African Union, Chief Justice Willy Mutunga, economic rights, International Covenant on Economic Social and Cultural Rights, International Criminal Court, international human rights, Kenya, poverty, President Uhuru Kenyatta, socio-economic rights, South African Development Community Tribunal Leave a comment
Author: William Aseka
LLM candidate, Syracuse University College of Law, New York (United States of America)
As Beth Simmons points out, three billion people survive on less than $2.50 per day. She states that if these facts are anything to go by, it is even harder to comprehend that economic rights have been codified as part of the international human rights system for the past 60 years. According to Simmons, what is even more disturbing is the fact that over 85% of states have ratified one or two treaties that recognise economic rights. In Kenya, more than 58% of Kenyans live below the poverty line. Further, more than half of the Kenyan population is poor and over 7 million Kenyans live in extreme poverty, despite Kenya having ratified the International Covenant on Economic Social and Cultural Rights (ICESCR) 41 years ago.
On 5 May 2013, the Optional Protocol to the ICESCR entered into force after receiving its tenth instrument of ratification. The purpose of the Optional Protocol is to address violations of socio-economic rights which have been loosely applied when compared to the civil and political rights. The Protocol achieves this by giving an individual locus standi before the Committee and hence asking directly whether a state violated the ICESCR. As much as there is scepticism about this Protocol, this paper wishes to submit that states, especially Kenya, should look beyond this scepticism and ratify the Protocol. This article will provide both arguments for and against ratification of the Optional Protocol.
The African Union summit on the International Criminal Court: In whose interest?
Posted: 28 October, 2013 Filed under: Wonderr Freeman | Tags: Addis Ababa, Africa, African Court on Human and Peoples’ Rights, African Union, crimes against humanity, Deputy President William Ruto, ICC, international court of law, International Criminal Court, international law, justice, Kenya, post-election violence, President Omar Al-Bashir, President Uhuru Kenyatta, Rome Statute, Rwanda, United Nations Security Council, victims of atrocities, Waki Commission 1 Comment
Author: Wonderr Freeman
LLM (Trade and Investment Law in Africa) candidate, Centre for Human Rights, University of Pretoria, South Africa
(Date of article: 4 October 2013)
On 13 October 2013, leaders of African states will meet in Addis Ababa, under the African Union (AU) banner), to consider a possible withdrawal from the Rome Statute creating the International Criminal Court (ICC). African leaders do not find favour with the ICC’s pursuit of Kenya’s “big men”- President Uhuru Kenyatta and Deputy President William Ruto. The AU draws links between the indictment of Kenyatta and Ruto with that of President Omar Al-Bashir of Sudan and Laurent Gbagbo of the Ivory Coast. Having drawn such links, the AU is of the view that the ICC is a western plot to finish-off African leaders. What is striking of the AU’s ICC analysis is the complete lack of consideration for the victims, 99.9% of whom are Africans. It seems as though grave crimes against humanity are of much less importance when a few “big men” stand accused. What seems to be of extreme importance in the minds of African leaders is that, once again, one of their kind is wanted for crimes against humanity.
African heads of states are rarely united on any issue relevant to development of the continent, such as a common currency, the free movement of people and products, military interventions in war torn regions, etc. However, when it comes to protecting the likes of Bashir and Kenyatta, the AU is zealously united – without regard to the victims of atrocities.
Nigeria’s National Conference: The right to have it right in the education sector
Posted: 21 October, 2013 Filed under: Olaniyi Olayinka | Tags: Academic Staff Union of Universities, Boko Haram, constitution, education, National Conference, Nigeria, Regionalism 2 Comments
Author: Olaniyi Olayinka
Principal Assistant Registrar (Legal Matters) at The Polytechnic, Ibadan (Nigeria)
Calls for an all-inclusive National Conference to fashion out Nigeria’s national focus dates back to before 1922 – the Clifford Constitution – which until recently was never held. President Goodluck Jonathan in his 2013 Independence Day broadcast appointed a committee to facilitate the realisation of the conference. Author Uzodinma Nwaogbe has identified disunity, lack of faith and trust amongst citizens of Nigeria as some of the issues the conference should tackle and has given his support for the conference. The conference, according to Nwaogbe, is a platform for Nigerians to talk about issues that will help develop the country irrespective of religious, political and ethnic difference.
The Nigerian constitution, per Section 18(1), clarifies educational objectives of the government and provides that:
“Government shall direct its policy towards ensuring that there are equal and adequate educational opportunities at all levels.”
This article will determine the adequacy of funding for education in Nigeria and how the conference can pave the way for an improvement.
Education is under the purview of both the federal and state governments, and being less generous about funding education is plausible because they both draw from the same purse.
South Africa apartheid lawsuit – The end of the epopee?
Posted: 14 October, 2013 Filed under: Marek Jan Wasinski | Tags: Alien Tort Statute, apartheid, customary international law, extrajudicial killings, extraterritorial jurisdiction, Filartiga v Penalrala, injustices, international human rights, Khulumani, Kiobel v Royal Dutch Petroleum Co, Nigeria, South Africa, Truth and Reconciliation Commission, United States of America 2 Comments
Author: Marek Jan Wasinski
Assistant Professor and Chair of Public International Law and International Relations – Faculty of Law and Administration, University of Lodz, Poland
On 21 August 2013, the 2nd United States (US) Circuit Court of Appeal reached a decision on a decade long putative class action suits brought on behalf of individuals harmed by the South African apartheid regime. The suits were originally initiated by two groups of plaintiffs, the Balintulo (or Khulumani plaintiffs) and the Ntsebeza plaintiffs against corporate defendants (namely: Daimler, Ford, and IBM). Plaintiffs asserted that the South African subsidiary companies of the defendants aided and abetted violations of customary international law committed by the (then) South African government. It was claimed inter alia that subsidiary companies had sold cars and computers to the South African government, thus facilitating race-based depredations and injustices, including rape, torture, and extrajudicial killings. A legal basis for the US court’s jurisdiction was the Alien Tort Statute (ATS), a famous part of the Judiciary Act of 1789, conferring federal jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”. The ATS remained dormant nearly for two centuries until it spectacularly entered the stage before 2nd US Circuit Court of Appeal in a Filartiga v Pena-Irala wherein Paraguay citizens were allowed to sue a former Paraguayan police officer allegedly involved in an extrajudicial killing of a Paraguayan dissident’s son in Paraguay. The decision in Filartiga led to a dramatic rise in international human rights litigation in US courts, involving not only suits against private individuals but also against corporate entities for aiding and abetting violations of the law of nations. There were instances of such litigations ending with profitable settlements. For example, in Abdullahi v Pfizer Inc., Pfizer has reportedly agreed to pay $75 million as compensation for illegal clinical trials in Nigeria. Similarly in Wiwa v Shell Oil Co., faced with claims of complicity in murder, torture, and other crimes related to oil production in the Niger Delta, the Shell provided $15.5 million as compensation to those affected.
AfricLaw 