Commonwealth Secretary-General Don McKinnon at the launch of the Commonwealth (Latimer House) Principles on the Three Branches of Government

Many Commonwealth countries have embarked upon constitutional reforms. The Secretariat assists them in strengthening their constitutions and constitutional institutions, promoting the independence of the judiciary and the legal profession, advancing human rights, and combating crime and corruption.

The Commonwealth provides assistance in implementing judicial reforms, building the capacity of judges through judicial training and combating corruption in the judiciary. It encourages governments to give full effect to the judiciary’s constitutional, substantive and administrative independence.

The Secretariat has also played a prominent role in facilitating constitution-making processes, including through the placement of constitutional drafters supported by the Commonwealth Fund for Technical Co-operation (CFTC). For example, in 2005 the CFTC funded two experts to draft a new Constitution in Zambia.

Legislative drafting

The role of the legislative drafter is central to law reform. In 2003-2005, the Secretariat assigned legislative drafters to Antigua and Barbuda, The Bahamas, Botswana, Cameroon, The Gambia, Jamaica, Lesotho, Namibia, St Kitts and Nevis, Samoa, South Africa, Swaziland, Uganda, United Republic of Tanzania and the United Kingdom (in Gibraltar and Montserrat). Regional organisations have also benefited from this kind of assistance.

Promoting accountability and good governance

A set of Commonwealth principles setting out the relationship between parliament, the judiciary and the executive in member countries was launched by the Secretariat in May 2004. The Commonwealth (Latimer House) Principles on the Accountability of and Relationship between the Three Branches of Government are designed to provide, in accordance with the laws and customs of each Commonwealth country, an effective framework for the implementation by governments, parliaments and judiciaries of the Commonwealth’s fundamental values in this area, in support of the Harare Commonwealth Declaration.

The Secretariat has embarked on a programme of regional forums to disseminate the Principles and facilitate the generation of action plans for their implementation. A Pan-African Forum on the Principles in Nairobi, Kenya, in April 2005 sought to raise awareness of their implementation in Commonwealth African countries. It adopted a framework to help entrench a culture of ethical governance and democratic practices, and promote smooth functioning among the three branches of government.

One of the hallmarks of accountability is access to information. The Secretariat has developed model laws on freedom of information, privacy, and protection of personal information. These are being examined in regional workshops conducted by the Secretariat. The first, for the Asia and Pacific regions, took place in Malaysia in December 2004. The second took place in July 2005 in The Gambia for the West Africa region.

Administration of justice

In collaboration with the UK Department for International Development, the Secretariat undertook legal capacity-building projects to help strengthen the administration of justice in The Gambia and Sierra Leone. The services of four judges and two prosecutors have been provided in each country, and provision has been made for training for senior judges and officials, court administrators and others. This has helped improve the management of cases, accelerated decisions on long-standing cases, and increased public trust in the administration of justice in these countries.

The Secretariat set up an Expert Group to examine the implications of the removal of the appellate jurisdiction of the Judicial Committee of the Privy Council by Commonwealth countries.

The Group produced a best practice guide which has been found useful in ensuring that Commonwealth standards are maintained when jurisdictions such as New Zealand (which has already de-linked from the Privy Council) and the Caribbean Court of Justice (after it de-links) become functional.

Gender, human rights and law

Commonwealth work on gender, human rights and law focuses on women’s land and property rights; indigenous women and girls’ rights; and addressing gender-based violence.

The Secretariat has assisted governments in East and Southern Africa in developing national action plans to address gender-based violence. Based on its support in developing model legislation on women’s human rights and violence against women in the Caribbean, some 11 member countries have put in place legislation on gender-based violence. A book of case laws on women and human rights is scheduled for publication in the latter half of 2005.

Fighting terrorism, money laundering and corruption

The Secretariat is in the forefront of international efforts to combat money laundering and terrorist financing. It has provided legislative assistance, capacity-building and support to developing countries in implementing systems for combating money laundering and the financing of terrorism, that comply with international standards.

The second report of the Commonwealth Committee on Terrorism was endorsed by the 2003 Commonwealth Heads of Government Meeting (CHOGM) in Abuja, Nigeria. It called for increased co-operation in counter-terrorism, and encouraged member countries to continue to follow the steps outlined in the Commonwealth Plan of Action on Counter-Terrorism and to implement UN Security Council Resolution 1373.

The Secretariat focused on assisting member countries with the development of domestic legislation to implement Resolution 1373 and the 12 international instruments (ten conventions and two protocols). Tools such as model legislative provisions and implementation kits for the instruments were developed and distributed within the Commonwealth and beyond. A series of legislative workshops using a Commonwealth model framework for drafting anti-terrorism legislation was delivered in Africa, Asia and the Caribbean, and in collaboration with the International Monetary Fund (IMF) in the Pacific.

Effective implementation of Resolution 1373 requires more than legislation. It is equally important that police and prosecutors be familiar with international and national laws and have the capacity, knowledge and skills to carry out successful investigations and prosecutions. With support from the UK Government, the Secretariat organised five regional workshops in Africa, Asia and the Caribbean in 2004, focusing on the investigation and prosecution of terrorism and its financing, and on the international co-operation which is so vital in combating it. Altogether, 284 police and prosecutors from 46 countries benefited from this training.

The workshops involved close co-operation with other international and regional organisations, including the Counter-Terrorism Committee of the Executive Directorate of the United Nations and the UN Office on Drugs and Crime (UNODC).

Consultations were held with experts from police training institutes throughout the Commonwealth to help develop a Commonwealth training manual on counter-terrorism which will feature international best practices in the investigation and prosecution of terrorism-related cases. The Secretariat has also compiled a Manual of Commonwealth Laws on Terrorism.

Ongoing activities include amendments to the Commonwealth Scheme on Mutual Assistance in Criminal Matters to provide for the use of interception of communications and the preservation of computer data.
In light of changes in the global security scenario, legislative frameworks as well as strategies adopted by terrorists, the Secretariat, in collaboration with the World Bank, IMF, UNODC and UN Global Programme on Combating Money Laundering, is revising the Commonwealth model law on combating money-laundering, and drafting a model law against the financing of terrorism. The model laws will be based on the Common Law tradition, and thus ideal for Commonwealth countries wishing to adopt them.

The Secretariat assists member countries in developing policies and strategies for implementing the 40 Recommendations on combating money laundering and the nine Special Recommendations on combating the financing of terrorism drawn up by the Financial Action Task Force (FATF), which are endorsed by the Commonwealth for implementation in all member countries. As one of the international organisations involved in combating money laundering, the Secretariat participates in FATF plenary sessions, and contributed to a review of the 40 recommendations in 2004.

In 2005 the Secretariat published a revision of its model of best practice for combating money laundering in the financial sector, taking into account the revised FATF recommendations. The new version, entitled Combating Money Laundering and Terrorist Financing: A Model of Best Practice for the Financial Sector, the Professions and Other Designated Businesses, is used for training and awareness-raising workshops in member countries.

Over the last two years, technical advice has been provided to selected Commonwealth African and Pacific countries on legislative changes required to comply with the new standards, as has assistance in the drafting of the necessary legislative amendments and regulations. The Secretariat has also provided capacity-building and other assistance in combating money laundering and financing of terrorism to the FATF-style regional bodies such as the Asia Pacific Group, Caribbean Financial Action Task Force, and Eastern and Southern Africa Anti-Money Laundering Group (ESAAMLG).

The Secretariat has assisted ESAAMLG in developing and implementing its work programme as well as advocacy to obtain support from other organisations and nations. Following its adoption of the revised FATF 40 Recommendations, ESAAMLG requested support to facilitate national strategy formulation for all jurisdictions in the region. The Secretariat conducted workshops in Namibia and Tanzania in 2005 using the revised best practice model. Participants produced draft national strategy frameworks for approval by their governments.

In the last year, the Commonwealth Secretariat has also worked with the Economic Community of West African States (ECOWAS) Secretariat and governments in West Africa to set up the West African Anti-Money Laundering Group as an FATF-style regional body.

Legislation and capacity-building to combat corruption

Since the adoption in 1999 by Heads of Government of the Framework for Commonwealth Principles on Promoting Good Governance and Combating Corruption, the Secretariat has been delivering a programme to assist member countries in implementing the principles of the framework in domestic law.

The Secretariat also supports member countries in the ratification and domestic implementation of the UN Convention against Corruption (UNCAC). An expert group meeting in London in April 2004 considered the various anti-corruption measures set out in UNCAC and other international instruments and made recommendations on administrative measures, good practice, and the scope of model legislative provisions.

The 2003 Abuja summit called for enhanced co-operation in the repatriation of illegally acquired public funds and assets to their countries of origin. At the request of Commonwealth leaders, the Secretary-General set up a working group to examine the issue, focusing on maximising co-operation and mutual assistance between governments. The group met four times in 2004-2005, and produced a report for the consideration of the Malta Heads of Government Meeting in November 2005.