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African Union Convention on Preventing and Combating Corruption, 2003

Title
African Union Convention on Preventing and Combating Corruption, 2003
Content

AFRICAN UNION CONVENTION ON PREVENTING
AND COMBATING CORRUPTION


PREAMBLE

The Member States of the African Union:

Considering that the Constitutive Act of the African Union recognizes
that freedom, equality, justice, peace and dignity are essential objectives for
the achievement of the legitimate aspiration of the African peoples;

Further Considering that Article 3 of the said Constitutive Act enjoins
Member States to coordinate and intensify their cooperation, unity, cohesion
and efforts to achieve a better life for the peoples of Africa;

Cognizant of the fact that the Constitutive Act of the African Union,
inter alia, calls for the need to promote and protect human and peoples’
rights, consolidate democratic institutions and foster a culture of democracy
and ensure good governance and the rule of law;

Aware of the need to respect human dignity and to foster the
promotion of economic, social, and political rights in conformity with the
provisions of the African Charter on Human and People’s Rights and other
relevant human rights instruments;

Bearing in mind the 1990 Declaration on the Fundamental Changes
Taking Place in the World and their Implications for Africa; the 1994 Cairo
Agenda for Action Relaunching Africa’s Socio-economic Transformation; and
the Plan of Action Against Impunity adopted by the Nineteenth Ordinary
Session of the African Commission on Human and Peoples Rights in 1996 as
subsequently endorsed by the Sixty fourth Ordinary Session of the Council of
Ministers held in Yaounde, Cameroon in 1996 which, among others, underlined
the need to observe principles of good governance, the primacy of law, human
rights, democratization and popular participation by the African peoples in the
processes of governance.

Concerned about the negative effects of corruption and impunity on
the political, economic, social and cultural stability of African States and its
devastating effects on the economic and social development of the African
peoples;

Acknowledging that corruption undermines accountability and
transparency in the management of public affairs as well as socio-economic
development on the continent;

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Recognizing the need to address the root causes of corruption on the
continent;

Convinced of the need to formulate and pursue, as a matter of priority,
a common penal policy aimed at protecting the society against corruption,
including the adoption of appropriate legislative and adequate preventive
measures;

Determined to build partnerships between governments and all
segments of civil society, in particular, women, youth, media and the private
sector in order to fight the scourge of corruption;

Recalling resolution AHG-Dec 126(XXXIV) adopted by the Thirty–fourth
Ordinary Session of the Assembly of Heads of State and Government in June
1998 in Ouagadougou, Burkina Faso, requesting the Secretary General to
convene, in cooperation with the African Commission on Human and Peoples’
Rights, a high level meeting of experts to consider ways and means of
removing obstacles to the enjoyment of economic, social and cultural rights,
including the fight against corruption and impunity and propose appropriate
legislative and other measures;

Further Recalling the decision of the 37th ordinary session of the
Assembly of Heads of State and Government of the OAU held in Lusaka,
Zambia, in July 2001 as well as the Declaration adopted by the first session of
the Assembly of the Union held in Durban, South Africa in July 2002, relating
to the New Partnership for Africa's Development (NEPAD) which calls for the
setting up of a coordinated mechanism to combat corruption effectively.

Have agreed as follows:

Article 1

Definitions

1. For the purposes of this Convention;

“Chairperson of the Commission” means Chairperson of the Commission
of the African Union;

“Confiscation” means any penalty or measure resulting in a final deprivation
of property, proceeds or instrumentalities ordered by a court of law following
proceedings in relation to a criminal offence or offences connected with or
related to corruption;

“Corruption” means the acts and practices including related offences
proscribed in this Convention;

“Court of Law” means a court duly established by a domestic law;

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“Executive Council” means the Executive Council of the African Union;

"Illicit enrichment" means the significant increase in the assets of a public
official or any other person which he or she cannot reasonably explain in
relation to his or her income.

“Private Sector” means the sector of a national economy under private
ownership in which the allocation of productive resources is controlled by
market forces, rather than public authorities and other sectors of the economy
not under the public sector or government;

“Proceeds of Corruption” means assets of any kind corporeal or
incorporeal, movable or immovable, tangible or intangible and any document
or legal instrument evidencing title to or interests in such assets acquired as a
result of an act of corruption;

“Public official” means any official or employee of the State or its agencies
including those who have been selected, appointed or elected to perform
activities or functions in the name of the State or in the service of the State at
any level of its hierarchy;

“Requested State Party” means a State Party requested to extradite or to
provide assistance under this Convention;

“Requesting State Party” means a State Party making a request for
extradition or assistance in terms of this Convention;

“State Party” means any Member State of the African Union which has
ratified or acceded to this Convention and has deposited its instruments of
ratification or accession with the Chairperson of the Commission of the African
Union.

2. In this Convention, the singular shall include the plural and vice versa.

Article 2

Objectives

The objectives of this Convention are to:

1.

Promote and strengthen the development in Africa by each State Party,
of mechanisms required to prevent, detect, punish and eradicate
corruption and related offences in the public and private sectors.

2.

Promote, facilitate and regulate cooperation among the State Parties to
ensure the effectiveness of measures and actions to prevent, detect,
punish and eradicate corruption and related offences in Africa.



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3.

Coordinate and harmonize the policies and legislation between State
Parties for the purposes of prevention, detection, punishment and
eradication of corruption on the continent.

4.

Promote socio-economic development by removing obstacles to the
enjoyment of economic, social and cultural rights as well as civil and
political rights.

5.

Establish the necessary conditions to foster transparency and
accountability in the management of public affairs.


Article 3
Principles

The State Parties to this Convention undertake to abide by the following
principles:

1.

Respect for democratic principles and institutions, popular participation,
the rule of law and good governance.

2.

Respect for human and peoples’ rights in accordance with the African
Charter on Human and Peoples Rights and other relevant human rights
instruments.

3.

Transparency and accountability in the management of public affairs.

4.

Promotion of social justice to ensure balanced socio-economic
development.

5.

Condemnation and rejection of acts of corruption, related offences and
impunity.


Article 4
Scope of Application

1.

This Convention is applicable to the following acts of corruption and
related offences:

(a)

the solicitation or acceptance, directly or indirectly, by a public
official or any other person, of any goods of monetary value, or
other benefit, such as a gift, favour, promise or advantage for
himself or herself or for another person or entity, in exchange for
any act or omission in the performance of his or her public
functions;

(b)

the offering or granting, directly or indirectly, to a public official or
any other person, of any goods of monetary value, or other benefit,
such as a gift, favour, promise or advantage for himself or herself
or for another person or entity, in exchange for any act or
omission in the performance of his or her public functions;

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(c)

any act or omission in the discharge of his or her duties by a public
official or any other person for the purpose of illicitly obtaining
benefits for himself or herself or for a third party;

(d)

the diversion by a public official or any other person, for purposes
unrelated to those for which they were intended, for his or her own
benefit or that of a third party, of any property belonging to the
State or its agencies, to an independent agency, or to an individual,
that such official has received by virtue of his or her position;

(e)

the offering or giving, promising, solicitation or acceptance, directly
or indirectly, of any undue advantage to or by any person who
directs or works for, in any capacity, a private sector entity, for
himself or herself or for anyone else, for him or her to act, or
refrain from acting, in breach of his or her duties;

(f)

the offering, giving, solicitation or acceptance directly or indirectly,
or promising of any undue advantage to or by any person who
asserts or confirms that he or she is able to exert any improper
influence over the decision making of any person performing
functions in the public or private sector in consideration thereof,
whether the undue advantage is for himself or herself or for
anyone else, as well as the request, receipt or the acceptance of
the offer or the promise of such an advantage, in consideration of
that influence, whether or not the influence is exerted or whether
or not the supposed influence leads to the intended result;

(g)

illicit enrichment;

(h)

the use or concealment of proceeds derived from any of the acts
referred to in this Article; and

(i)

participation as a principal, co-principal, agent, instigator,
accomplice or accessory after the fact, or on any other manner in
the commission or attempted commission of, in any collaboration
or conspiracy to commit, any of the acts referred to in this article.

2.

This Convention shall also be applicable by mutual agreement between
or among two or more State Parties with respect to any other act or
practice of corruption and related offences not described in this
Convention.


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Article 5
Legislative and other Measures

For the purposes set-forth in Article 2 of this Convention, State Parties
undertake to:

1.

Adopt legislative and other measures that are required to
establish as offences, the acts mentioned in Article 4 paragraph 1
of the present Convention.

2.

Strengthen national control measures to ensure that the setting
up and operations of foreign companies in the territory of a State
Party shall be subject to the respect of the national legislation in
force.

3.

Establish, maintain and strengthen independent national anticorruption
authorities or agencies.

4.

Adopt legislative and other measures to create, maintain and
strengthen internal accounting, auditing and follow-up systems, in
particular, in the public income, custom and tax receipts,
expenditures and procedures for hiring, procurement and
management of public goods and services.

5.

Adopt legislative and other measures to protect informants and
witnesses in corruption and related offences, including protection
of their identities.

6.

Adopt measures that ensure citizens report instances of corruption
without fear of consequent reprisals.

7.

Adopt national legislative measures in order to punish those who
make false and malicious reports against innocent persons in
corruption and related offences.

8.

Adopt and strengthen mechanisms for promoting the education of
populations to respect the public good and public interest, and
awareness in the fight against corruption and related offences,
including school educational programmes and sensitization of the
media, and the promotion of an enabling environment for the
respect of ethics.


Article 6
Laundering of the Proceeds of Corruption

States Parties shall adopt such legislative and other measures as may
be necessary to establish as criminal offences:

a)

The conversion, transfer or disposal of property, knowing that
such property is the proceeds of corruption or related offencesfor the purpose


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of concealing or disguising the illicit origin of the property or of helping any
person who is involved in the commission of the offence to evade the legal
consequences of his or her action.

b)

The concealment or disguise of the true nature, source, location,
disposition, movement or ownership of or rights with respect to
property which is the proceeds of corruption or related offences;

c)

The acquisition, possession or use of property with the
knowledge at the time of receipt, that such property is the
proceeds of corruption or related offences;


Article 7
Fight Against Corruption and Related Offences
in the Public Service

In order to combat corruption and related offences in the public service,
State Parties commit themselves to:

1.

Require all or designated public officials to declare their assets at the
time of assumption of office during and after their term of office in the
public service.

2.

Create an internal committee or a similar body mandated to establish a
code of conduct and to monitor its implementation, and sensitize and
train public officials on matters of ethics.

3.

Develop disciplinary measures and investigation procedures in
corruption and related offences with a view to keeping up with
technology and increase the efficiency of those responsible in this
regard.

4.

Ensure transparency, equity and efficiency in the management of
tendering and hiring procedures in the public service.

5.

Subject to the provisions of domestic legislation, any immunity granted
to public officials shall not be an obstacle to the investigation of
allegations against and the prosecution of such officials.


Article 8
Illicit Enrichment

1.

Subject to the provisions of their domestic law, State Parties undertake
to adopt necessary measures to establish under their laws an offence of
illicit enrichment.

2.

For State Parties that have established illicit enrichment as an offence
under their domestic law, such offence shall be considered an act of


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corruption or a related offence for the purposes of this Convention.

3.

Any State Party that has not established illicit enrichment as an offence
shall, in so far as its laws permit, provide assistance and cooperation to
the requesting State with respect to the offence as provided in this
Convention.


Article 9
Access to Information

Each State Party shall adopt such legislative and other measures to give
effect to the right of access to any information that is required to assist in the
fight against corruption and related offences.

Article 10
Funding of Political Parties

Each State Party shall adopt legislative and other measures to:

(a)

Proscribe the use of funds acquired through illegal and
corrupt practices to finance political parties; and

(b)

Incorporate the principle of transparency into funding of
political parties.


Article 11
Private Sector

State Parties undertake to:

1.

Adopt legislative and other measures to prevent and combat acts of
corruption and related offences committed in and by agents of the
private sector.

2.

Establish mechanisms to encourage participation by the private sector
in the fight against unfair competition, respect of the tender procedures
and property rights.

3.

Adopt such other measures as may be necessary to prevent companies
from paying bribes to win tenders.


Article 12
Civil Society and Media

State Parties undertake to:

1.

Be fully engaged in the fight against corruption and related offences and


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the popularisation of this Convention with the full participation of the
Media and Civil Society at large;

2.

Create an enabling environment that will enable civil society and the
media to hold governments to the highest levels of transparency and
accountability in the management of public affairs;

3.

Ensure and provide for the participation of Civil Society in the
monitoring process and consult Civil Society in the implementation of
this Convention;

4.

Ensure that the Media is given access to information in cases of
corruption and related offences on condition that the dissemination of
such information does not adversely affect the investigation process and
the right to a fair trial.


Article 13
Jurisdiction

1.

Each State Party has jurisdiction over acts of corruption and related
offences when:

(a)

the breach is committed wholly or partially inside its territory;

(b)

the offence is committed by one of its nationals outside its
territory or by a person who resides in its territory; and

(c)

the alleged criminal is present in its territory and it does not
extradite such person to another country.

(d)

when the offence, although committed outside its jurisdiction,
affects, in the view of the State concerned, its vital interests or
the deleterious or harmful consequences or effects of such
offences impact on the State Party.

2.

This Convention does not exclude any criminal jurisdiction exercised by
a State Party in accordance with its domestic law.

3.

Notwithstanding the provision of paragraph I of this Article, a person
shall not be tried twice for the same offence.


Article 14
Minimum Guarantees of a Fair Trial

Subject to domestic law, any person alleged to have committed acts of
corruption and related offences shall receive a fair trial in criminal proceedings
in accordance with the minimum guarantees contained in the African Charter on

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Human and Peoples’ Rights and any other relevant international human
rights instrument recognized by the concerned States Parties.

Article 15
Extradition

1.

This Article shall apply to the offences established by the State Parties in
accordance with this Convention.

2.

Offences falling within the jurisdiction of this Convention shall be
deemed to be included in the internal laws of State Parties as crimes
requiring extradition. State Parties shall include such offences as
extraditable offences in extradition treaties existing between or among
them.

3.

If a State Party that makes extradition conditional on the existence of a
treaty receives a request for extradition from a State Party with which it
does not have such treaty, it shall consider this Convention as a legal
basis for all offences covered by this Convention.

4.

A State Party that does not make extradition conditional on the
existence of a treaty shall recognize offences to which this Convention
applies as extraditable offences among themselves.

5.

Each State Party undertakes to extradite any person charged with or
convicted of offences of corruption and related offences, carried out on
the territory of another State Party and whose extradition is requested
by that State Party, in conformity with their domestic law, any
applicable extradition treaties, or extradition agreements or
arrangements existing between or among the State Parties.

6.

Where a State Party in whose territory any person charged with or
convicted of offences is present and has refused to extradite that person
on the basis that it has jurisdiction over offences, the Requested State
Party shall be obliged to submit the case without undue delay to its
competent authorities for the purpose of prosecution, unless otherwise
agreed with the Requesting State Party, and shall report the final
outcome to the Requesting State Party.

7.

Subject to the provisions of its domestic law and any applicable
extradition treaties, a Requested State Party may, upon being satisfied
that the circumstances so warrant and are urgent and at the request of
the Requesting State Party, take into custody a person whose
extradition is sought and who is present in its territory, or take other
appropriate measures to ensure that the person is present at the
extradition proceedings.


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Article 16
Confiscation and Seizure of the Proceeds and
Instrumentalities of Corruption

1.

Each State Party shall adopt such legislative measures as may be
necessary to enable:

(a)

its competent authorities to search, identify, trace, administer and
freeze or seize the instrumentalities and proceeds of corruption
pending a final judgement;

(b)

confiscation of proceeds or property, the value of which
corresponds to that of such proceeds, derived, from offences
established in accordance with this convention;

(c)

repatriation of proceeds of corruption.

2.

The Requested State Party shall, in so far as its law permits and at the
request of the Requesting State Party, seize and remit any object:

(a)

which may be required as evidence of the offence in question; or

(b)

which has been acquired as a result of the offence for which
extradition is requested and which, at the time of arrest is found
in possession of the persons claimed or is discovered
subsequently.

3.

The objects referred to in clause 2 of this Article may, if the Requesting
State so requests, be handed over to that State even if the extradition is
refused or cannot be carried out due to death, disappearance or escape
of the person sought.

4.

When the said object is liable for seizure or confiscation in the territory
of the Requested State Party the latter may, in connection with pending
or ongoing criminal proceedings, temporarily retain it or hand it over to
the Requesting State Party, on condition that it is returned to the
Requested State Party.


Article 17
Bank Secrecy

1.

Each State Party shall adopt such measures necessary to empower its
courts or other competent authorities to order the confiscation or
seizure of banking, financial or commercial documents with a view to
implementing this Convention.


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2.

The Requesting State shall not use any information received that is
protected by bank secrecy for any purpose other than the proceedings
for which that information was requested, unless with the consent of
the Requested State Party.

3.

State Parties shall not invoke banking secrecy to justify their refusal to
cooperate with regard to acts of corruption and related offences by
virtue of this Convention.

4.

State Parties commit themselves to enter into bilateral agreements to
waive banking secrecy on doubtful accounts and allow competent
authorities the right to obtain from banks and financial institutions,
under judicial cover, any evidence in their possession.


Article 18
Cooperation and Mutual Legal Assistance

1.

In accordance with their domestic laws and applicable treaties, State
Parties shall provide each other with the greatest possible technical
cooperation and assistance in dealing immediately with requests from
authorities that are empowered by virtue of their national laws to
prevent, detect, investigate and punish acts of corruption and related
offences.

2.

If two or several State Parties have established relations on the basis of
uniform legislation or a particular regime, they may have the option to
regulate such mutual relations without prejudice to the provisions of this
Convention.

3.

State Parties shall co-operate among themselves in conducting and
exchanging studies and researches on how to combat corruption and
related offences and to exchange expertise relating to preventing and
combating corruption and related offences.

4.

State Parties shall co-operate among themselves, where possible, in
providing any available technical assistance in drawing up programmes,
codes of ethics or organizing, where necessary and for the benefit of
their personnel, joint training courses involving one or several states in
the area of combating corruption and related offences.

5.

The provisions of this Article shall not affect the obligations under any
other bilateral or multilateral treaty which governs, in whole or in part,
mutual legal assistance in criminal matters.

6.

Nothing in this Article shall prevent State Parties from according one
another more favourable forms of mutual legal assistance allowed under


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their respective domestic law.


Article 19
International Cooperation

In the spirit of international cooperation, State Parties shall:

1.

Collaborate with countries of origin of multi-nationals to criminalise and
punish the practice of secret commissions and other forms of corrupt
practices during international trade transactions.

2.

Foster regional, continental and international cooperation to prevent
corrupt practices in international trade transactions.

3.

Encourage all countries to take legislative measures to prevent corrupt
public officials from enjoying ill-acquired assets by freezing their foreign
accounts and facilitating the repatriation of stolen or illegally acquired
monies to the countries of origin.

4.

Work closely with international, regional and sub regional financial
organizations to eradicate corruption in development aid and
cooperation programmes by defining strict regulations for eligibility and
good governance of candidates within the general framework of their
development policy.

5.

Cooperate in conformity with relevant international instruments on
international cooperation on criminal matters for purposes of
investigations and procedures in offences within the jurisdiction of this
Convention.


Article 20
National Authorities

1.

For the purposes of cooperation and mutual legal assistance provided
under this Convention, each State Party shall communicate to the
Chairperson of the Commission at the time of signing or depositing its
instrument of ratification, the designation of a national authority or
agency in application of offences established under Article 4 (1) of this
Convention.

2.

The national authorities or agencies shall be responsible for making and
receiving the requests for assistance and cooperation referred to in this
Convention.

3.

The national authorities or agencies shall communicate with each other
directly for the purposes of this Convention.

4.

The national authorities or agencies shall be allowed the necessary


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independence and autonomy, to be able to carry out their duties
effectively.

5.

State Parties undertake to adopt necessary measures to ensure that
national authorities or agencies are specialized in combating corruption
and related offences by, among others, ensuring that the staff are
trained and motivated to effectively carry out their duties.


Article 21
Relationship with other Agreements
Subject to the provisions of Article 4 paragraph 2, this Convention shall
in respect to those State Parties to which it applies, supersede the provisions
of any treaty or bilateral agreement governing corruption and related offences
between any two or more State Parties.

Article 22
Follow up Mechanism

1.

There shall be an Advisory Board on Corruption within the African
Union.

2.

The Board shall comprise 11 members elected by the Executive Council
from among a list of experts of the highest integrity, impartiality, and
recognized competence in matters relating to preventing and combating
corruption and related offences, proposed by the State Parties. In the
election of the members of the board, the Executive Council shall
ensure adequate gender representation, and equitable geographical
representation.

3.

The members of the Board shall serve in their personal capacity.

4.

Members of the Board shall be appointed for a period of two years,
renewable once.

5.

The functions of the Board shall be to:

a.

promote and encourage adoption and application of anticorruption
measures on the continent;

b.

collect and document information on the nature and scope of
corruption and related offences in Africa;

c.

develop methodologies for analyzing the nature and extent of
corruption in Africa, and disseminate information and sensitize the
public on the negative effects of corruption and related offences;


15


d.

advise governments on how to deal with the scourge of
corruption and related offences in their domestic jurisdictions;

e.

collect information and analyze the conduct and behaviour of
multi-national corporations operating in Africa and disseminate
such information to national authorities designated under Article
18 (1) hereof;

f.

develop and promote the adoption of harmonized codes of
conduct of public officials;

g.

build partnerships with the African Commission on Human and
Peoples’ Rights, African civil society, governmental.
Intergovernmental and non-governmental organizations to
facilitate dialogue in the fight against corruption and related
offences;

h.

submit a report to the Executive Council on a regular basis on the
progress made by each State Party in complying with the
provisions of this Convention;

i.

perform any other task relating to corruption and related offences
that may be assigned to it by the policy organs of the African
Union.

6.

The Board shall adopt its own rules of procedure.

7.

States Parties shall communicate to the Board within a year after the
coming into force of the instrument, on the progress made in the
implementation of this Convention. Thereafter, each State Party,
through their relevant procedures, shall ensure that the national anticorruption
authorities or agencies report to the Board at least once a
year before the ordinary sessions of the policy organs of the AU.


FINAL CLAUSES
Article 23
Signature, ratification, accession and Entry into Force

1.

The present Convention shall be open for signature, ratification or
accession by the Member States of the African Union.

2.

The Convention shall enter into force thirty (30) days after the date of
the deposit of the fifteenth instrument of ratification or accession.


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3.

For each State Party ratifying or acceding to the Convention after the
date of the deposit of the fifteenth Instrument of Ratification, the
Convention shall enter into force thirty (30) days after the date of the
deposit by that State of its instrument of ratification or accession.


Article 24
Reservations

1.

Any State Party may, at the time of adoption, signature, ratification or
accession, make reservation to this Convention provided that each
reservation concerns one or more specific provisions and is not
incompatible with the object and purposes of this Convention.

2.

Any State Party which has made any reservation shall withdraw it as
soon as circumstances permit. Such withdrawal shall be made by
notification to the Chairperson of the Commission.


Article 25
Amendment

1.

This Convention may be amended if any State Party makes a written
request to the Chairperson of the Commission.

2.

The Chairperson of the Commission shall circulate the proposed
amendments to all State Parties. The proposed amendments shall not
be considered by the State Parties until a period of six (6) months from
the date of circulation of the amendment has elapsed.

3.

The amendments shall enter into force when approved by a two-thirds
majority of the Member States of the AU.


Article 26
Denunciation

1.

Any state Party may denounce the present Convention by sending
notification to the Chairperson of the Commission. This denunciation
shall take effect six (6) months following the date of receipt of
notification by the Chairperson of the Commission.

2.

After denunciation, cooperation shall continue between State Parties and
the State Party that has withdrawn on all requests for assistance or
extradition made before the effective date of withdrawal.



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Article 27
Depository

1.

The Chairperson of the Commission shall be the depository of this
Convention and the amendments thereto.

2.

The Chairperson of the Commission shall inform all State Parties of the
signatures, ratifications, accessions, entry into force, requests for
amendments submitted by States and approvals thereof and
denunciations.

3.

Upon entry into force of this Convention, the Chairperson of the
Commission shall register it with the Secretary General of the United
Nations in accordance with Article 102 of the Charter of the United
Nations.


Article 28
Authentic Texts

The original of this Convention, of which the Arabic, English, French and
Portuguese texts are equally authentic, shall be deposited with the
Chairperson of the Commission.

IN WITNESS WHEREOF WE, the Heads of State and Government of the
African Union, or our duly authorized representatives have adopted this
Convention.

Adopted by the 2nd Ordinary Session
of the Assembly of the Union
Maputo, 11 July 2003
Referring Principles
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