During the past decade a number of far-reaching international, regional and sub-regional legal instruments and agreements have been developed to facilitate joint action against organised crime, corruption, money laundering and terrorism. Some of these include the United Nations (UN) Convention against Transnational Organised Crime (2000), the Southern African Development Community (SADC) Protocol against Corruption (2001), the Financial Action Task Force (FATF), established by the G7 summit of 1989, and the International Convention for the Financing of Terrorism (1999). These instruments impose significant obligations on those states that ratify them, particularly on developing and least developed countries.
The combating of organised crime, corruption, and money laundering has been on national agendas for many years. International responses to these issues seem to develop when international concerns and pressures reach a momentum, which becomes self-propelling and which then culminates in international agreements to take action. The concerns and priorities of developed countries are inevitably the main driving force behind the development of such international instruments. The determination by poor countries not to be marginalised by such initiatives is one of the factors that motivate poorer countries to try and participate in such initiatives, even if their participation is often under-resourced and in an ad hoc manner. As a result, the measures eventually agreed upon tend to be more closely geared to the needs and capacities of developed countries than the developing ones. A large gap often exists between the sophisticated standards and requirements set out in the international instruments, on the one hand, and the realities and capacities on the ground in poorer countries, on the other. The ratification and implementation of such agreements can, for some countries, be major tasks which detract from addressing other more urgent national priorities.
The papers by Charles Goredema and Fazila Montsi, and by Noel Kututwa and Constance Kunaka, should both be read against a background of international obligations that African countries have agreed to but which some find very difficult to implement and abide by. Money laundering is a corrosive and undermining criminal activity wherever it occurs. However, as far as most African countries are concerned, the priority attached by the state to money laundering has been much lower than that enjoyed by developmental and social issues. As indicated by Goredema and Montsi, there are a number of countries in Southern Africa in which money laundering is not regarded as an offence.
The September 11 events in New York have changed all that. Even though many African countries started addressing anti-money laundering provisions some years ago, there is now international pressure on all countries to rapidly fall into line with globally accepted anti-money laundering provisions, particularly where laundering activities could be used to facilitate terrorist funding. Goredema and Montsi highlight a number of dilemmas that African states will face in their attempts to get a grip on money laundering. The realities in poor countries will determine that it will take much longer than many anticipate to comply with internationally agreed measures unless substantial international assistance is forthcoming.
The UN Convention against Trans-national Organised Crime also contains measures against money laundering and corruption. The convention requires many states to make policy, legislative and operational adjustments in order to be in a position to accede to the convention. In their contribution, Kututwa and Kunaka emphasise the importance of legislation in combating organised crime. There can be no doubt that effective legislation is crucial but, as pointed out by the authors, unless such legislation is backed up by political will, resources and expertise to implement it properly, it might create the illusion that enough is being done to address the problem. What applies at the international level to the gap between the reassuring content of international conventions and the harsh reality of capacity deficiencies on the ground, also applies at national levels when sound legislation is passed which cannot be enforced because the necessary resources and expertise are not available, or the political will to do so is lacking. Under such conditions, illusions about the effectiveness of international conventions or national legislation will continue.
One of the positive consequences of international and regional conventions is that they set legislative norms that encourage national jurisdictions to harmonise their legislation and thereby promote international co-operation. In many parts of Africa, governments have embarked on initiatives to achieve this. Goredema and Montsi show that in the area of legislation to counter money laundering, there are major challenges to be overcome before this can be achieved. The same applies to legislation to combat organised crime.
What becomes increasingly clear is that given the pace at which some of the developed countries are driving their policy, legislative and operational changes relating to organised crime, corruption and money laundering, many of the poorer countries will be left behind. Only a better understanding of the serious problems that poorer countries face, and increased international assistance to them, will prevent this from happening. From the side of poorer countries there should be increased efforts to ensure that the content of international agreements take account of their circumstances.
