Implementing UN Sanctions and African Border Control Authorities

By Thomas Bifwoli


1. Introduction

Implementation of United Nations Security Council Sanctions requires both good will from respective member states and the efficiency and preparedness of the various institution within the UN Member states.

One of the key institutions is an equipped and equally supported Customs administration. Customs plays an important role as the first line of defence when it comes to regulating what comes into a given territory. Similarly, it is the last line of defence for goods that leave a given territory. To be able to effectively do this, necessary legislation for a legal framework needs to be provided. This is not limited to goods under United Nations Sanctions, including the Democratic People’s Republic of North Korea (DPRK), but also all goods under its (Customs) control. The East Africa Community (EAC) has developed a common customs legislation that regulates the flow of goods in and out of the territory, based on the EAC treaty of 1999. A brief review of this legislation points to a lack of clarity on the role of Customs in the control of embargoed material as mandated to all member states by the United Nations Security Council.

This note attempts to analyze Customs’ role in the control of UN embargoed freight and what, if any, ECA regulations need to be improved for them to be replicated by other African states and regional Customs arrangements. Such improvements have the potential to impact, in a particularly noticeable manner, the monitoring of UN embargoed materials, including conventional weaponry, proliferation goods, components, or tools, and restricted commodities under the UN’s DPKR sanctions measures.

2. Legal framework and the gaps there-in

The East African Community Customs Management Act, EACCMA (revised edition 2017) provides the legal basis for customs operations in Kenya and its East Africa partner states. The act provides specific legislation on a wide range of prohibited imports and exports within the territory. The second and third schedules, as read together with section 18 and 70 respectively, specify these prohibitions and restrictions. However, the act is silent on United Nations Security Council prohibited goods/freight. More specifically, the closest it makes reference to general prohibition is in the second schedule part A(1) inter-alia “all goods and importation for the time being prohibited under this act or by any written law for the time being in force in the partner states”. The third schedule of the same act explains exportation. There is no specific mention of UN embargoed freight, whether import, transit, transshipment, or export.

Both the second and third schedule of the EACCMA 2017 generally infer the need to prevent prohibitions and restrictions without specifically referring to UNSC freight/goods.

It should be noted that different countries have different mechanisms of domesticating UNSCRs. Some countries require a legislative act; others implement the Security Council resolutions by executive decrees. In either case, whatever a domestication of UN sanctions resolutions into “written law” in a given country may be considered, regulations have to be issued to various government departments so that these laws can be effectively and legally implemented.

In the absence of a written law requiring customs to intercept UNSCR embargoed material, it becomes a great challenge for a given member state to intercept the same material while staying within the boundaries of international law.

But there are also the business and economic aspects that drive Customs procedures. Customs officers are under immense pressure to process goods quickly with minimal bureaucratic impositions. Delay risks lawsuits by the relevant stakeholders, which can be consignee, consignor, or even third parties. This implies that Customs officials must be quick and extra vigilant when detaining suspected prohibition or even restricted goods; but, above all, they must make the right detention decisions.

This was and is the case for most East African countries when dealing with suspected counterfeit goods. There is always a need to ascertain that the said goods meet the threshold for detention and eventual seizure. There has, however, been good legal practice established regarding control of counterfeits. Realizing the inadequacies of customs dealing with counterfeit imports/exports/transit and transshipments through Kenyan territory, the Anti-Counterfeit Act was established in 2008. Section 31 of the ACA Act 2008 envisages a situation where a customs officer can act suo motu (on its own motion) and contact the property right holder immediately for verification and confirmation without fear of delaying clearance of goods. Whereas this doesn’t relate to UN sanctions and its implementation, the legal framework and effort referred to here is likely a good practice. In the absence of a clear regulations for goods related to UNSC sanctions, it becomes increasing difficult for Customs to easily detain and/or seize such goods.

As explained above, Customs needs clear guidelines for them to detain/seize embargoed material. In dealing with counterfeits, Kenya has established this pragmatic guidance: “the property right owner who has valid grounds for suspecting that the importation of counterfeit goods may take place, may apply to the Commissioner in the prescribed manner to seize and detain all suspected counterfeit goods which are (a)… (b) Imported into or enter Kenya during the period specified in the application…..” . After due diligence and consideration by the Commissioner of Customs, one will, within three working days and if satisfied in writing, grant the application. In the absence of application to the Commissioner by the Intellectual Property Right Holder, the Customs officers (who are also identified as an inspector in the Act) can take “appropriate steps on their own initiative in relation to any conduct believed or suspected to be an act of dealing in Counterfeits”. This is the express ticket/guideline that Customs officers need to detain and seize suspect goods.

The legislation available is silent on what powers Customs officials have to seize DPKR-linked freight/cargo on the grounds of UNSC prohibition. Just as Kenya enacted legislation explained above for dealing with suspected counterfeits, there is need to clearly describe the detention and seizure guidelines to Customs authorities in regards to the UN’s embargoes, in particular regarding those destined to or originating in the DPKR.

3. Economic reform revenue collection and border control

Domestic legal frameworks in most African states provide for border control enforcement. Customs administrations have four roles:

- Collect revenue to boost the national treasury;

- Protect society (this includes making sure that prohibited goods/cargo do not enter a given territory);

- Facilitate trade to grow the national economy;

- Collect trade statistics – usually used for planning.

These four mandates represent a wide and weighty range of responsibilities for any single government administration. In East Africa, for example, poor tax performance and erratic revenue generation have been problems in Kenya, Uganda and Tanzania, contributing to adverse impacts on public investment. Consequently, all Customs efforts have been sharply re-focused towards revenue collection as their top priority. Most developing countries share the urgent need for enhanced revenues while developed nations can afford to focus more on enhancing border security. A recent trend in global free trade and the exacerbating risks from international terrorism have seen priority given to security in most countries. However, this is not to the required level for various reasons.

This being the case, African countries may need to refocus their efforts more on border security as opposed to the present focus on revenue collection. Therefore, they need to develop common tools and programs to promote rapid and effective control mechanisms at the national and regional levels aimed at the illegal trade by countries under UN Sanctions. The African Union has, on many occasions, attempted to help member states develop policies and guidelines that would enable member states to better manage their borders. Despite all these efforts, many countries still face challenges in managing their borders as demonstrated by studies by UN Panels and other monitoring groups.

The United Nations Panel of Experts on the DPKR has repeatedly reported on operations of North Korea companies in various countries, including Uganda, Tanzania, Ethiopia, Mozambique, Namibia, the DRC, and the Republic of Congo. North Korean companies operating on these African frontlines, include KOMID in Uganda or Namibia, are violating a number of UN Security Council sanctions prohibitions against the trade in North Korean arms, the conveyance of cash and other forms of payments, the subcontracting of various military and police trainings, or the construction of a variety of government facilities. KOMID and similar North Korean companies continually import goods from the DPKR through the porous or poorly manned borders in the region. Sometimes, they also import contingents of North Korean laborers, which is another violation of UN sanction measures. If the relevant border control institutions had capacities and political will to pay more attention to these activities, North Korean sanctions violators would be more readily discovered, flagged, and possibly detained.

A Wall Street Journal report by Joe Perkinson (Dec 2018) observed for example how, “Two military officers say they viewed documents confirming North Korean weapons deliveries as recently as August that included antitank systems, rocket-propelled grenades, and small arms. The weapons, for Uganda’s special forces, were shipped through a Kenyan port and driven across Uganda’s border at night, they say.” This and many other reports demonstrate the very nature of the ineffectiveness of border control and lack of political will to implement UN Security Council resolutions.

While there is no study to support the allegation, African Customs experts believe that the focus on revenue collection is displacing the sense of urgency for controls of prohibited goods being smuggled across international borders. In other words, the very justified national prerogative to support domestic revenue collection stands in the way of the equally justified national need to comply with international law – which in this case are UN sanctions.

The danger that this choice leaves African countries with is the higher risk that illegal actors, while violating UN sanctions, may also violate national laws, bribe officials, and create other national security issues. The obvious room for improvement and counteraction must start with establishing clear legal guidelines on control of embargoed material while exploiting the potential for enhanced revenues in the form of fines and penalties whenever smuggled goods are discovered and seized.

4. Regional integration and its issues

Africa has over 100 international boundaries while less than 35 percent are clearly and precisely demarcated. These vague boundaries are also characterized by a high level of porosity and poor management. These factors create opportunities for all kinds of cross border criminal activities. The primary responsibility for protecting national borders and combating crime belongs to individual members states. Therefore, this dual interest should be the motivator for any government to strengthen its border controls.

Many African countries have chosen to tackle this dual challenge by forming sub-regional and regional alliances. A good example is the East Africa Community Customs Union that the EAC launched on 1st July 2014 with its Single Customs Territory (SCT). The SCT is premised on the following pillars: free circulation of goods, revenue management systems, port management systems, and a regional legal and institution framework. This launch heralded not only the full attainment of an East African customs union but foreshadows the ultimate realization of free circulation of all goods among the member states.

The self-evident downside is that, due to the lack of proper border management (porosity of borders), goods are now freely moving across the entire EAC territory once they have crossed the EAC borders. For example, heightened risks exist with the smuggling of dangerous materials from Somalia into Kenya that now can easily move onwards to the territories and conflicts in all other member states of the economic block. Like in a chain, it only needs one “weak link” – a poorly manned border – for a national problem to escalate into a regional problem. For the EAC, such risks can have particularly dire consequences. With nations in conflict surrounding the EAC, with Somalia to the northeast, with South Sudan to the North, the Central African Republic and the Democratic Republic of the Congo in the West of the EAC, the question must be raised whether this Customs union may, in the worst case scenario, be turned by sophisticated arms smugglers into a safe-haven for illegal transfers.

Of course, the upside of the regional block building is the hope that combined resources, political will, and intelligence sharing will enhance overall border security. For these and many political and economic reasons, regional economic blocks such as ECOWAS, SADC, or COMESA and their evolving Customs unions, who in turn increase inter-regional collaborations, clearly represent the future for African border control. However, it will remain an open question and challenge whether this organizations are also willing to integrate UN embargoes and sanctions into their frameworks.

5. National efforts to address the border challenges

There have been attempts by individual countries like Kenya to address the challenges of and gaps in border management. Kenya, for example, has embraced the key recommendations of the Secretary General of the World Custom (WCO) and its ten building blocks of the “21st Century Customs.” Two key points are:

a) Coordinated Border Management

WCO’s “Coordinated Border Management (CBM) refers to a coordinated approach by border control agencies, both domestic and international, in the context of seeking greater efficiencies over managing trade and travel flows while balancing them with compliance requirements.” The thinking behind this concept is that, in most typical customs crossings, multiple government agencies usually are operating. However, unfortunately, they work in silos that often obstruct exchanges of vital information and intelligence. This isolation from each other is not limited to government agencies; revenue administrations deployed on border crossings do not coordinate or communicate with each other.

Of course, border control agencies of neighboring countries do not coordinate or communicate either because of the added obstacles inherent among bilateral interactions that require a certain level of protocol.

However, it is noted that, to some extent, all cross-border regulatory agencies engage with each other to varying degrees through interactions taking place between individuals at a personal level. Recognizing the value of such fundamental human interactions for enhanced border management, the WCO’s recommendation is to encapsulate them into work instructions, operational arrangements, or, in more formal settings that usually are defined by laws, regulations and agreements.

Coordinated Border Management is primarily intended as a recommendation to create more efficient working relations among cross-border regulatory agencies within the same country. But, it also recommends applying similar official measures, mechanisms, and communication channels along like-minded neighboring states’ cross-border regulatory agencies.

The presence of multiple agencies at national border crossing points is a fact of contemporary regulatory environments that will not likely change anytime soon. While it is rare for a single agency to take responsibility for a country’s border crossing proceedings, examples and tests do exist all over the African continent. Joint border posts have been set in, among others: Namanga (Kenya-Tanzania Border) and Malaba (Kenya-Uganda Border). In these border posts, all border agencies can work from one place and coordination of work is achieved. There is no practical obstacle to extending effective, single-window border processing to control contraband, including UN embargoed material.

b) Automation and risk management

One of the key reforms that has been made by customs in most African countries is automating their customs processes. Automated customs systems provide a crucial tool for increased transparency in the assessment of duties and taxes, substantial reduction in customs clearance times, and detection of illegal/prohibited goods. A higher established level of automation has greater possibilities of detailed inspection, detection of fraud, and firm action including prosecution.

The introduction of modern technology should be a priority for African governments in combating cross-border crime. There is need for more institutional reforms and acquisition and adoption of unmanned technology to compliment physical border controls.

In 2010, through an IMF assisted project, Kenya Customs established a National Targeting Center (NTC) that was premised on the USA NTC for both cargo and passengers. The NTC was to champion risk management in Kenya Customs as the central focal point for profiling and targeting risky consignment coming and leaving the country. The NTC was to leverage the already operating (then) online customs clearance system called Simba, which provided a risk assessment and management of cargo moving to and from Kenya. Simba assists in determining if a given customs declaration of goods should be directed for full inspection, part inspection, or allowed to continue with a given customs clearance process without further controls.

A robust risk assessment and management system is a requirement, given that manual inspections of cargo will not result in the required safe and efficient release of goods within the shortest time possible.

To be able to flag suspected UN embargoed material, risk managers in customs need to develop a risk profile for the given consignment. These criteria would have to include, at a minimum, country of origin, description of goods, and company importing the goods. This is what needs to be considered by the risk team and implemented so that suspected UN embargoed material could be flagged for further customs check and possible detention or seizure.

Additionally, national Customs authorities need to embrace the WCO’s multi-layered, risk-based approach to enforce its legislation and regulations. This means that, at every level of clearance of goods, customs officers should be authorized to assess risks and flag them to other authorities inside and outside the country’s borders. This strategy will greatly mitigate the risk of fraudulent shipments coming into the country, including UN embargoed material.

About Thomas Bifwoli

Thomas Bifwoli has worked for the Kenya Revenue Authority (KRA); and was previously seconded to the World Customs Organization Regional Intelligence Liaison Office for Eastern and Southern Africa (WCO RILO ESA) as Head of Office. He serves as the coordinator of a UN sanctions monitoring expert group.