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International Tax Case Study - ICTD Learning Portal.pptx

This case study is a resource about International Tax for the ICTD's Learning Portal. To learn more, visit www.ictd.ac/learn

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PARTNERS
Petitioning the Double
Taxation Agreement between
Kenya and Mauritius: The Role
of Public Interest as a Tool of
Tax Justice Advocacy
CASE STUDY
By the International Budget Partnership
Summarised by Ruvimbo Chidziva
Presentation Outline​
•About International Budget Partnership
•About Tax Justice Network Africa
•Double Tax Agreement in Kenya
•Unpacking TJNA’s Campaign
•Assessment of the Campaign
•Lessons for CSOs
International Budget Partnership (IBP)
•IBP is an international organization dedicated
to ensuring governments are responsible
stewards of public funds.
•IBP works with civil society partners in
over 120 countries, and leverages their multi-
stakeholder network of international
institutions, donors, the private sector, and
state actors, to ensure all citizens, especially
in underserved communities, understand
the right to influence how public money is
raised and spent.
•This presentation is based on a case study
compiled for IBP on a campaign conducted
by its partner Tax Justice Network Africa
(TJNA) in Kenya in 2014.
IBP works to promote inclusive sustainable development that promotes
equity and justice by ensuring:
•Active and empowered citizens influence public budget processes
and policymaking that affects their lives.
•Governments and other actors provide transparent budget
information and opportunities for citizens to engage meaningfully in
the budget process.
•Government budget policies are based on fair taxation and targeted
at effective service delivery and equitable distribution of public
resources.
Tax Justice Network Africa (TJNA)
•Pan-African research and advocacy group established
in 2007 to curb illicit financial flows and promote
progressive taxation systems in Africa
•Partners with 32 organisations in 22 countries across
Africa to strengthen tax regimes, promoting domestic
resource mobilisation (DRM)
•Aims to produce knowledge, organise campaigns and
promote dialogue to influence policy in four areas:
•Tax and the international financial architecture
•Tax and extractives
•Tax and inequality
•Tax and investment
Double Tax Agreement (DTA) in
Kenya
• In May 2014, the Kenyan government signed a tax treaty (often called a
double taxation agreement, or DTA) with the offshore
financial centre Mauritius.
• The government believed the treaty positioned Kenya as
a commercial hub
• Mauritius has around 45 treaties in place, many of them with
African countries
• After the government published a legal notice to bring this tax treaty to
effect, TJNA launched an historic legal challenge to contest the reform
• TJNA cited substantive and procedural problems with the agreement

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International Tax Case Study - ICTD Learning Portal.pptx

  • 1. PARTNERS Petitioning the Double Taxation Agreement between Kenya and Mauritius: The Role of Public Interest as a Tool of Tax Justice Advocacy CASE STUDY By the International Budget Partnership Summarised by Ruvimbo Chidziva
  • 2. Presentation Outline​ •About International Budget Partnership •About Tax Justice Network Africa •Double Tax Agreement in Kenya •Unpacking TJNA’s Campaign •Assessment of the Campaign •Lessons for CSOs
  • 3. International Budget Partnership (IBP) •IBP is an international organization dedicated to ensuring governments are responsible stewards of public funds. •IBP works with civil society partners in over 120 countries, and leverages their multi- stakeholder network of international institutions, donors, the private sector, and state actors, to ensure all citizens, especially in underserved communities, understand the right to influence how public money is raised and spent. •This presentation is based on a case study compiled for IBP on a campaign conducted by its partner Tax Justice Network Africa (TJNA) in Kenya in 2014.
  • 4. IBP works to promote inclusive sustainable development that promotes equity and justice by ensuring: •Active and empowered citizens influence public budget processes and policymaking that affects their lives. •Governments and other actors provide transparent budget information and opportunities for citizens to engage meaningfully in the budget process. •Government budget policies are based on fair taxation and targeted at effective service delivery and equitable distribution of public resources.
  • 5. Tax Justice Network Africa (TJNA) •Pan-African research and advocacy group established in 2007 to curb illicit financial flows and promote progressive taxation systems in Africa •Partners with 32 organisations in 22 countries across Africa to strengthen tax regimes, promoting domestic resource mobilisation (DRM) •Aims to produce knowledge, organise campaigns and promote dialogue to influence policy in four areas: •Tax and the international financial architecture •Tax and extractives •Tax and inequality •Tax and investment
  • 6. Double Tax Agreement (DTA) in Kenya • In May 2014, the Kenyan government signed a tax treaty (often called a double taxation agreement, or DTA) with the offshore financial centre Mauritius. • The government believed the treaty positioned Kenya as a commercial hub • Mauritius has around 45 treaties in place, many of them with African countries • After the government published a legal notice to bring this tax treaty to effect, TJNA launched an historic legal challenge to contest the reform • TJNA cited substantive and procedural problems with the agreement
  • 7. “Evidence has shown that contrary to their objectives, these DTAs have led to double non-taxation and resulted in massive revenue leakage for African countries” Alvin Mosioma, TJNA Director
  • 8. DTA Reform: Problems noted by TJNA •Substantive issues with the treaty included: • Kenya unable to impose withholding taxes on service fee payments to fee payments to Mauritius, while tax rates on interest and royalties significantly reduced • Undercuts the government’s ability to collect capital gains taxes •Procedural issues with the treaty: • The government did not consult with the public before adopting the treaty, in spite of constitutional obligations to do so • The government failed to comply with the constitutional ratification process for treaties Due to these issues, TJNA argued that the DTA agreement should be revised or scrapped. The organisation pursued public interest litigation to advocate for tax justice.
  • 9. Unpacking TJNA’s Campaign •Leveraged international partnerships •Local linkages between civil society and academia Research & Preparation •Advocacy through public interest litigation •Supported by local and international actors Action •Suspension and nullification of the treaty •Dismissal of substantive claims Result
  • 10. Research and Preparation TJNA leveraged international partnerships in supporting the research phase of itscampaign. The Global Alliance for Tax Justice (GATJ) and Centre for Research on Multinational Corporations Corporations (SOMO) formed a working group on tax treaties that connected TJNA with with organisations and individuals able to offer technical support. TJNA also formed coalitions with local civil society organisations 1. Katiba Institute: provided expertise on pubic interest litigation and constitutional law 2. ActionAid Kenya: drew on partners’ research in Zambia and Ghana to highlight treaty shopping and revenue loss concerns 3. Econews Africa: developed briefing materials for civil society allies, parliamentarians and the media 4. Institute for Economic Affairs: prepared an economic analysis of the treaty’s impact
  • 11. Action: Public Interest Litigation • In partnership with the Katiba Institute, TJNA moved to the high court of Kenya to challenge and stop the treaty’s entry into force through public interest litigation • Hoped to invalidate the agreement on substantive and procedural grounds with a petition • Global Alliance for Tax Justice connected TJNA with international specialists to formulate arguments to the high court
  • 12. Immediate outcome: • Suspension of the treaty • It could not enter into force until the court examined the the petition Long-term outcomes: • Nullification of the treaty on procedural grounds • Justices found the government failed to place the tax treaty treaty before parliament within seven days thereby failing to failing to adhere to the Statutory Instrument Act • Dismissal of substantive claims • Justices did not recognise any of the substantive claims claims linking tax treaties to constitutional provisions concerning human rights and economic policy Result: Mixed Outcomes
  • 13. Assessment of Campaign: TNJA’s campaign was a partial success: • After the courts nullified the agreement, Kenya’s president signed a similar treaty with treaty with Mauritius a few months later, which contained stronger protections against some of against some of the original agreement’s most problematic aspects • The president faced little opposition as the judicial decision did not mandate broader public mandate broader public participation • The campaign lacked a broad coalition or social movement to capitalise on the court decision
  • 14. Lessons for CSOs Courts have power to (effectively) intervene in tax policy: • Many CSOs have not considered or utilized this avenue and should pursue it.
  • 15. TJNA did not initially possess all the capabilities to take the case forward: • Highly adaptive and worked with other organisations to build its capacity • Had difficulty finding legal counsel that understood both tax policy and public public interest law • Lessons from this case can be carried forward to future ones TJNA’s position as a regional actor may have hampered its effectiveness: • It faced challenges reaching domestic actors and local media • A domestic CSO may have been better able to infiltrate local structure
  • 16. References Based on: Joy W Ndubai (forthcoming). “Petitioning the Double Taxation Taxation Avoidance Agreement between Kenya and Mauritius: Mauritius: The Role of Public Interest Litigation as a Tool for Tool for Tax Justice.” International Budget Partnership. See also: Daisy LA Ogembo (2019). “The Tax Justice Network-Africa v Africa v Cabinet Secretary for National Treasury & 2 Others: A Others: A Big Win for Tax Justice Activism?” British Tax Review 2019(2): 105–17.