According to the latest publicity hype from Christian
Aid, “everyone who is anyone” is wearing
a Make Poverty History campaign band as world
leaders prepare for the G8 pow-wow at Gleneagles.
But just how many lawyers are doing so?
It iis an important question because if politicians,
charities and celebrities are serious about jump-starting
Africa’s economic development then the lawyers
should be key figures in the strategy. Yet, so
far, they have been almost entirely gnored.
For example, the report of the government-backed
Commission for Africa made frequent references
to the need to “improve Africa’s capacity”
– starting with the systems of higher education,
science and technology and public servants. But
there is no mention of lawyers.
This is odd because the roll call of reforms demanded
by the commission – for example, in financial
and regulatory systems, central banks and land
registries – are all dependent on legal
skills. Then there are the bureaucratic barriers
to trade that have been set up by African governments.
Again, lawyers are needed to cut through these
to create systems that are effective and simple.
And, perhaps most important of all, Africa needs
the “rule of law”. But, as Joe Whitfield,
of the specialist African law firm Africa Legal,
explains: “Judges’ pay is often paltry
– meaning it can be difficult to attract
high quality professionals to the Bench. Or judges
may be susceptible to ‘other means of persuasion’
to supplement their income. Or a regulatory regime
may be in place but no regulator appointed. Or
regulators may have inadequate resource to perform
their roles efficiently."
It is inescapable then that high-quality legal
skills are a key ingredient within the reform
process upon which Africa is, one hopes, about
to embark. This should not come as a surprise.
Once Central and Eastern Europe started on the
path of reform after the fall of the Soviet empire
it was realised immediately that the region needed
both new laws and professionals who could apply
them. The same applies in Africa.
We can, however, learn from the Eastern European
experience – and vow not to make the same
mistakes, according to James Dallas, of Denton
Wilde Sapte. Too often, he says, Western legal
advisers to new governments in countries such
as Russia and Poland simply trotted out the standard
legal solutions as found in the European Union
or America. Off-the-shelf solutions were presented
to unique historical problems. In some cases,
as we have seen recently, these jurisdictions
are still trying to undo the damage.
Whitfield argues that Africa must find its own
legal answers. Africa Legal, which is linked to
the South African firm Deneys Reitz, is focused
on economic development and legal needs north
of the Limpopo. “Part of the rationale of
Africa,” Whitfield says, “is to develop
the type of legal skills and international standards
locally that we think Africa should be applying
in its business dealings. Africa should be looking
to develop and apply these skills for itself rather
than relying on foreign service providers who
perhaps have a vested interest in keeping the
knowledge to themselves."
Not all foreign firms, though, are outsiders in
the sub-Saharan region. With a dedicated network
of “best friends” offices across Africa,
Denton Wilde Sapte feels that it has better credentials
than most. Apul Bugingo, the firm’s head
of Africa development, says that Sudan, for example,
will need “new laws for everything”
it if is to develop economically. And Sudan is
not alone. Across many parts of Africa, Bugingo
says, there is either no relevant legislation
in place to support investment or what there is
dates back to the imperial era and is scarcely
useful any longer.
"Often the laws are designed for state monopolies
that no longer exist,” Bugingo says. Their
placement is just as important a component of
infrastructure as new roads, power and water systems.
So what is the impact of this legal deficit? Whitfield
says: “It is one of the main reasons why
Africa is at the bottom of the world rankings
for foreign direct investment. In practical terms
the impact is very broad: tender processes can
be unpredictable; due diligence can be difficult;
registration of title or security can be problematic;
enforcement of contracts can be both risky and
challenging; the process of setting up a business
is often extremely time consuming and bureaucratic;
insolvency processes can be slow moving and cumbersome."
Yet the picture is not bleak. Botswana, Ghana,
Mauritius and Seychelles are all widely regarded
as business-friendly, and in South Africa the
decision to sack the Vice-President, Jacob Zuma,
on suspicion of being hand-in-wallet with a French
arms supplier has been widely welcomed.
Meanwhile, in key territories, business is proceeding.
Mark Saunders, an energy lawyer with Dewey Ballantine,
says that in Nigeria the law set up under British
rule has evolved successfully to cover the present-day
oil industry and that, for example, the country’s
Petroleum Act is fully adequate. ‘It’s
actually quite a sophisticated legal system,”
he says. “And given the importance of Nigerian
liquid nitrogen gas upon which America may increasingly
rely it is essential that the legal systems are
as robust as the technology."
Garry Pegg, of Hogan & Hartson, points out
that telecommunications, water and energy projects
are continuing to go ahead in some parts of Africa
and that the World Bank has already started to
make investment in regulatory reform in selected
countries.
So for lawyers the fashionable campaign band need
not be Make Poverty History. Instead it should
read Make Legal History.
