SALAH, Mahmoud Mohammed
Full reference : Salah, M. M., Conception and Application of Compliance in Africa , in Frison-Roche, M.-A. (ed.), Compliance Tools, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) / Dalloz, 2020, to be published.
Summary of the article (summary done by Marie-Anne Frison-Roche)
The author presents the way in which Compliance, which may seem "insurmountable" in Africa in particular with regard to corruption, even terrorism, a gravity offset by the prevalence of the group's solidarity on the Weberian conception of Law, nevertheless aims to "deploy" in Africa.
He describes the way in which in certain African countries the Compliance mechanisms have been established, under the influence of international institutions requiring first of all the autonomy of economic structures vis-à-vis social structures and then relaxing them so that they are more "human" and therefore more "sustainable". Under the aegis of the United Nations, anti-corruption programs have been particularly deployed. But the African Union and sub-regional organizations have also helped design and implement anti-corruption programs, for example through the adoption of uniform laws. In addition, the extraterritorial effect of foreign laws, in particular the FCPA, Bribery Act and Sapin 2, increases this anchoring of Compliance.
The article shows that Compliance, legally translated, has transformed classical Law branches. Firstly, banking and financial law welcomes it more readily, since it tends to be globally standardized, African legal systems participating in this globalization, and imposes on financial institutions and beyond a general obligation of vigilance, in particular as regards the risk of money laundering and terrorist financing, an obligation to alert and specific criminal liability of legal persons. Secondly, all African legislation has for purpose to fight against corruption through Compliance, which mainly requires prevention.
But the author measures the Compliance tools' effectiveness ("that is to say their ability to produce the desired results") which is often still limited in Africa. This is mainly due to the conjunction between the size of the informal sector, notably hampering 'identification" of the actors, and the weakness of the State structures which, allied to the low level of banking services and the still weak culture of writing and recording, leaves the system without crucial operators who could be entrusted with the realization of Compliance Law.
The author concludes that it is not the risk of national sanction that leads operators to respect the Compliance rules but the fear of losing markets by the external threat of international actors and the damage to their local and abroad reputation. The weakness of State structures affecting the effectiveness of Compliance as it affects everything thing, the author underlines that Compliance tools must be strengthened but also reinforce the more general mechanisms, such as judicial review.
More specifically, Compliance should be less expensive because African States often cannot bear it cost, only the subsidiaries of large foreign private groups can do so, which leads to abandoning Compliance at the will of the private sector, a phenomenon regrettable, whereas public supervisors do not have the means to exercise their political and technical control function.