Republic of Congo

Last updated: 02/06/2009

CENTRAL AUTHORITY FOR REPORTING

The banking system and financial institutions are generally regulated by:

The CEMAC (Communauté Economique et Monétaire de L’Afrique Centrale) central bank - BEAC (Banque des Etats de l’Afrique Centrale) or Bank of Central African States and
The regional supervisory authority - the Central African Banking Commission, commonly known as COBAC (Commission Bancaire de l’Afrique Centrale). COBAC in accordance with CEMAC Regulation No. 01/03 has jurisdiction over issues concerning anti money laundering and combating the financing of terrorism.

OTHER ANTI-MONEY LAUNDERING REGULATOR(S)

Central African Action Group against Money Laundering or Groupe d’Action Contre le Blanchiment d’Argent en Afrique Centrale (GABAC).

According to Article 35 of Regulation No 01/03/CEMAC/UMAC/CM, the ANIF has to send statistics and information reports to the GABAC. The GABAC also acts as regional co-ordinator for the ANIFs of Member countries, and the GABAC sends every six months a regional summary report on the activities of the ANIFs to the BEAC and CEMAC.

ARE LAWYERS COVERED BY ANTI-MONEY LAUNDERING LEGISLATION?

Yes. Article 5 of Regulation No 01/03/CEMAC/UMAC/CM of April 04 2003 makes the provisions of the regulation specifically applicable to members of the legal profession.

LIST THE LAWS REGARDING ANTI-MONEY LAUNDERING, INDICATING WHICH LAWS ARE APPLICABLE TO LAWYERS.

Règlement n ° 01/03/CEMAC/UMAC/CM du 4 Avril 2003 or CEMAC Regulation No 01/03/CEMAC/UMAC/CM of April 04 2003.

ARE VISITING LAWYERS SUBJECT TO LOCAL LAWS REGARDING ANTI-MONEY LAUNDERING, AND, IF SO, TO WHAT EXTENT?

N/A.

LIST ANY MONEY LAUNDERING GUIDANCE FOR LAWYERS (FOR EXAMPLE, LAW SOCIETY OR BAR ASSOCIATION GUIDELINES) CURRENTLY IN PLACE.

N/A.

IS THE LAW SOCIETY/BAR ASSOCIATION INVOLVED IN SUPERVISING OR ENFORCING COMPLIANCE WITH ANTI-MONEY LAUNDERING REGULATIONS?

N/A.

DESCRIBE CLIENT DUE DILIGENCE REQUIREMENTS, INCLUDING WHEN IT MUST BE UNDERTAKEN BY LAWYERS.

Lawyers by virtue of article 5 and in accordance with Article 12 Regulation No 01/03/CEMAC/UMAC/CM must Whenever engaging in;

Significant transactions involving unitary or cumulative sums which exceed the limit set by national laws or the ministerial committee;
Even when such do not call for a declaration of suspicion within the context of article 18;
But appear unconventional, unusual, complex and economically or legally unjustifiable,

exercise due diligence or undertake a due diligence investigation aimed at determining:

The origin and destination of the funds involved;
The subject or objective of the transaction;
The identity and home of the client and beneficiary or recipient.

Due diligence is compulsory for all electronic transfers and in general for any type of money transfer irrespective of the mode of execution, transfer or receipt.

Due diligence is also required for transfers emanating from or destined for

Financial organisations or institutions in jurisdictions which are not Member Sates of the Financial Action Task Force (FATF) or
Where the legal requirements and obligations pertaining to identification and control of funds are not at least equivalent to the Regulation or
Are simply identified as FATF non-cooperative countries and territories.

The identification process and requirements for clients is the same as provided for in Articles 9 – 11. In the case of a natural person a valid official original document comprising a picture is required. Upon presentation, of the original document a copy is made and retained by the authority or professional involved.

In the case of a legal entity, all original documents pertaining to, and showing proof of legal creation and existence up to the time of verification are required. Upon presentation copies are made and retained.

All persons or entities acting on behalf of others must, apart from presenting proof of their own identities and addresses, do the same for the persons on whose behalf they are acting. They must also present valid documents attesting to the delegation of power they claim.

In due diligence situations as explained above, the nature of the transaction as well as information relating to the domicile and identity of interested parties to the transaction is put in writing and preserved along with other retained documents to be made available only to the relevant authorities if the need arises.

DOES YOUR COUNTRY FOLLOW A RISK-BASED APPROACH TO CLIENT DUE DILIGENCE BY LAWYERS?

Yes.

ARE THERE ENHANCED DUE DILIGENCE MEASURES FOR CERTAIN TYPES OF CLIENTS, FOR EXAMPLE, POLITICALLY EXPOSED PERSONS?

N/A.

ARE THERE SIMPLIFIED DUE DILIGENCE MEASURES FOR CERTAIN TYPES OF CLIENTS, FOR EXAMPLE, LISTED COMPANIES?

N/A.

ARE LAWYERS PERMITTED TO RELY ON THIRD PARTY DUE DILIGENCE? IF YES, PLEASE DESCRIBE.

No.

WHEN IS A LAWYER UNDER AN OBLIGATION TO REPORT SUSPICIOUS TRANSACTIONS?

Article 36 (Regulation No 01/03) imposes an obligation to declare any suspicious transactions or funds to the ANIF if there is valid reason to believe that funds or a transfer of funds could be linked to, associated with, or destined to be used to finance terrorism or terrorist acts

A lawyer is under an obligation to report to the ANIF:

Whenever transactions involve payments (of any kind) whose individual or cumulative totals exceed the limit provided for by the State;
Whenever in possession of money or goods which could be linked to a crime or felon, or subject to a money laundering process;
All transactions which could be sponsored or funded by proceeds from a crime or felon or involve money laundering activities; and
All transactions wherein the identities of the owner or beneficiary remain suspicious despite rigorous identification and verification efforts.

Declarations can be verbal or written as per Article 19, and should be addressed to the ANIF. Declarations made via telephone can be confirmed by fax or any other writing method. The declaration must state a delay period within which the transaction should be finalized or failing which it must state the reasons why the transaction has already been finalized.

DOES ATTORNEY/CLIENT PRIVILEGE AND/OR DUTIES OF CONFIDENTIALITY PROVIDE A DEFENCE OR PARTIAL/TOTAL EXCEPTION TO THE REQUIREMENT TO REPORT SUSPICIOUS TRANSACTIONS?

No. See Articles 10 and 31 of Regulation No 01/03/CEMAC/UMAC/CM.

DOES LOCAL LAW PROVIDE ANY CRIMINAL AND/OR CIVIL INDEMNITY TO A LAWYER WHO HAS REPORTED A SUSPICIOUS TRANSACTION?

Exemption from criminal liability by virtue of Article 22 Regulation No 01/03/CEMAC/UMAC/CM but there are no provisions for indemnities of any kind.

ONCE A SUSPICIOUS TRANSACTION REPORT HAS BEEN FILED, IS A LAWYER ALLOWED TO PROCEED WITH THE LEGAL ADVICE/TRANSACTION, AND, IF SO, MUST CONSENT FROM AUTHORITIES BE OBTAINED FIRST?

A lawyer can proceed with a transaction unless there is an order by the ANIF to put the transaction on hold.

If such an order is passed (for a maximum of 48 hrs before the end of the delay period for the execution of the transaction stated in the declaration by fax or any other method which can be traced in writing), until the order elapses the lawyer cannot proceed with the transaction.

After this period unless a competent judge orders that all assets, funds etc involved in the transaction should be frozen before the stated delay period expires (for another maximum period of 8 days maximum) lawyers can proceed with the transaction in accordance with Article 33.

IS THERE A TIPPING-OFF PROHIBITION? IF YES, PLEASE DESCRIBE.

Articles 8 and 15 Regulation No 01/03/CEMAC/UMAC/CM on strict confidentiality in relation to a declaration on pain of criminal sanctions. Under no circumstances are lawyers to divulge confidential information about a declaration to legal entities or natural persons apart from those specified in the regulation.

According to Article 48 anyone who has access to confidential information by means of their profession and informs the person or people who are under investigation will be criminally liable and subject to the relevant penalties and fines that are enlisted in Article 46.

DESCRIBE ANY RESTRICTIONS ON ACCEPTING A NEW CLIENT.

Before establishing a working or business relationship with a client lawyers must first ascertain the clients’ identity, domicile and address and proof of all the latter. They must press for a valid, official, and original document comprising a photo and should retain copies.

Please see Article 9 Regulation No 01/03/CEMAC/UMAC/CM.

ARE THERE ONGOING MONITORING REQUIREMENTS FOR EXISTING CLIENTS? IF YES, PLEASE DESCRIBE.

Yes Article 9 Regulation No 01/03/CEMAC/UMAC/CM on client identification: Lawyers must ensure existing clients always provide proof of their identity and domicile for all transactions involving sums which exceed the fixed threshold.

Identification is also required whenever in doubt of the legality of funds for a particular transaction

When individual transactions are carried out repeatedly within a limited period, even when single transaction values are within the fixed threshold, lawyers must insist on the identification process for clients.

DESCRIBE ANY OTHER WAYS IN WHICH LAWYERS ARE AFFECTED BY ANTI-MONEY LAUNDERING LEGISLATION.

N/A.

HAVE LAWYERS IN YOUR JURISDICTION BEEN IMPLICATED IN MONEY LAUNDERING, INCLUDING ANY TYPE OF COMPLAINT, ARREST OR PROSECUTION?

N/A.

HAS THE FINANCIAL ACTION TASK FORCE (FATF) CONDUCTED A MUTUAL EVALUATION OF THIS COUNTRY, AND, IF SO, WHAT WERE THE FINDINGS CONCERNING LAWYERS’ COMPLIANCE WITH THE FATF 40+9 RECOMMENDATIONS?

There have been reports on the implementation of the FATF recommendations in the CEMAC zone and notably the IMF report on the Observation of Standards and Codes (ROSC) in 2006. According to this report, CEMAC Regulation No. 01/03, enacted prior to the revision of the FTF recommendations is in line with required international standards. Nevertheless, the report recommends the official recognition of the FATF 40+9 recommendations as the international standard by GABAC.

Cameroon is also one of the only two countries in the region to have established a national financial investigation agency (ANIF).

Information provided by:

Manyi Orok-Tambe
Commercial Law intern

International Bar Association
10th Floor, 1 Stephen Street
LONDON, W1T 1AT
United Kingdom
Email: Gonzalo.Guzman@int-bar.org

Sources:

Règlement n ° 01/03/CEMAC/UMAC/CM du 4 Avril 2003