“The Nigerian tax treaty draft would require us to make concessions which are far in advance of the terms which other lower-income countries have accepted in treaties with us.” Taxation brief for Mr. Barratt’s visit to Nigeria and meeting with the Director of Inland Revenue: December 1978,” Inland Revenue IR40/17629, National Archives, London (Hearson, 2021)[1].
Tax treaties are intergovernmental agreements that, once signed, become part of their signatories’ tax laws. Ratification follows different procedures in different countries[2]. Usually, in lower-income countries, tax treaties are ratified by the cabinet with no parliamentary approval (Hearson, 2021). This was the common practice with the post-colonial era agreements that were signed by many developing countries and even recently with the turmoil that the Tax Justice Network Africa’s (TJNA) lawsuit in Kenya caused concerning the lack of parliamentary ratification of the treaty with Mauritius[3].
In Togo, the Double Taxation Agreement (DTA) with France was signed in Lomé on 24 November 1971. The following day, on 25 November 1971, the Extraordinary and Plenipotentiary Ambassador of France in Togo, Lomé, His Excellency Mr. Jean-Pierre Campredon, sent a letter to the Minister of Foreign Affairs of Togo, His Excellency Mr. Joachim Hunlede[4], requesting amendment of Articles 38 to 40 of the bilateral tax treaty between the two countries. In summary, the French Ambassador’s letter proposed a mechanism where a taxpayer facing legal action in one country, under the specified articles of the tax treaty, can request a suspension of proceedings by providing proof of ownership of assets in the country where the taxes are due. No sooner than the Togolese Minister acknowledged receipt of the letter, he responded promptly the next day, on 26 November 1971, with a letter in which the quotation of the French Ambassador’s letter, dated 25 November 1971 represented 81,74%[5] of the response. He expressed gratitude for the proposal, confirmed the acceptance of the Togolese government, and emphasized the commitment to maintaining a climate of trust between the two nations[6].
Those letters were considered legal instruments that bound the whole country, which was below par by that time because it was struggling for its redesign after a long period of exploitation during colonialism by numerous European countries, namely Germany, the United Kingdom (UK), and France. One can raise questions about the validity of such procedures. Unfortunately, based on those letters referred to as “The exchange of letters of 25 and 26 November 1971”, even mentioned on the cover page, the bilateral DTA between Togo and France is still in force, until now unamended.
That supercilious attitude of disparaging low-income countries by high-income countries was widespread across the continent. There are numerous examples, from English speaking countries such as Nigeria to Portuguese speaking countries such as Guinea Bissau. The outrageous vitriolic condescendence was in the French speaking countries, where almost all the new governments from the independence period were surreptitiously drawn into acrimonious agreements with the (now former) colonial power.
For decades, those inequitable DTAs were denounced for renegotiation. However, the uproar often fades like waves on the seashore. A pathetic example was the Inland Revenue of the UK, that decided not to push forward the renegotiation request of Nigeria in 1979, arguing that “the UK would only stand to lose by a new agreement which was bound to be less favorable than the old.”[7] The UK dug in its heels and refused to deviate from its position. Nigeria, on the other hand beheld and did not capitulate. The suspense lasted for ten (10) years, until Nigeria, with its back to the wall, decided the abrogation of all its colonial era tax treaties, and the concurrent imposition of new taxes on air and shipping companies[8], causing a panic in the Labor Party government led by James Callaghan[9].
In 1979, even though the British negotiators claimed that “an agreement on the terms offered [by Nigeria] would have been unattractive in itself and would have served as an unfortunate precedent for future agreements.”[10], they pursued the renegotiation until a new treaty was initialed in 1982. The equitability of that new DTA is another story.
In the same vein, Burkina-Faso, a WATAF member state, sent a request for renegotiation to France through a note verbale N°0002/ MAEC/SG/DGAJC/DAJC/STAI/iv on 05 January 2020 and a reminding letter by the end of 2021. The French government was muted on all those requests, that had naturally triggered a denunciation letter of the DTA through the letter N°2023- 609/MAECRBE/CAB on 07 August 2023 through its Ministry of Foreign Affairs, with a countdown period of three months, after which the bilateral agreement would be terminated.
Let us wait for the outcome of this new suspense!
[1] Hearson, M. (2021). Imposing standards: the north-south dimension to global tax politics. New York: Cornell University Press.
[2] Tax treaties signed by Nigeria with other countries involves the approval of the Federal Executive Council and ratification by the National Assembly, This is a constitutional requirement as per section 12 of the Constitution of Nigeria.
[3] Kenya’s new constitution requires parliamentary ratification of treaties, but the government argued that the tax treaty was merely an administrative agreement, a position supported by the High Court. Petition 494 of 2014 – Kenya Law
[4] Minister of Foreign Affairs (Togo) – Wikipedia
[5] The response contained 318 words of the Campredon’s letter in quotation marks out of the 389 words of Hunlede’s
[6] Togo-France-DTC-Nov-1971.pdf (internationaltaxtreaty.com)
[7] “Historical background to talks,” September 13, 1978, Inland Revenue IR40/17629, National Archives, London. Culled from (Hearson, 2021)
[8] The note terminating the Nigeria – UK treaty is dated June 29, 1978. Inland Revenue IR40/17629, National Archives, London. Culled from (Hearson, 2021)
[9] List of 1978 British incumbents – Wikipedia
[10] 102. A. P. Beauchamp to D. O. Olorunlake, May 18, 1979, Inland Revenue IR40/17630,
National Archives, London. Culled from (Hearson, 2021)
Nyatefe Wolali DOTSEVI: Tax Research Manager, WATAF Secretariat.
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