Salami, I. 2012. African Economic Integration and Legal Challenges. GREAT Insights, Volume 1, Issue 1. January-February 2012. Maastricht: ECDPM
The main project covering an African-wide integration arrangement was originally known as the Organisation of African Unity (OAU) which was established in 1964. Its aim was to promote economic development of the continent through economic cooperation among the economies of the states in Africa. It sought to achieve this through coordination and harmonisation in the field of economic and political cooperation. Other sub-regional efforts were established in Africa and existed concurrently with the OAU. In some cases these sub-regional groupings were formed among countries sharing the same colonial history and in other cases, among countries within the same geographical region.
The challenges of the OAU in meeting its objectives led to the signing of the Treaty establishing the African Economic Community (AEC) by OAU Heads of State and Government in1991. The AEC Treaty provided that an African Economic Community would be set up through a gradual process, which would be achieved by coordination, harmonisation and progressive integration of the activities of existing and future Regional Economic Communities (RECs) in Africa. The RECs recognised as pillars and building blocks of the AEC include: AMU, EAC, COMESA, ECOWAS, IGAD and SADC. Thus, at the time, the AEC operated on the basis of the OAU Charter and the AEC Treaty.
In 2001 however, the OAU was transformed to the African Union (AU) in 2001, under a new Constitutive Treaty. This was done in order to speed up the process of economic and political integration in the continent and in order to achieve the economic development goals of the OAU. The AU was thus established in conformity with the ultimate objectives of the OAU Charter and the Treaty establishing the African Economic Community. The Union was thus to evolve from the OAU and the AEC into one unified institution. In general, the African Union objectives are more comprehensive than those of the OAU. The aims and objectives of the AEC Treaty still obtain under the AU but are subject to the provisions of the Constitutive Act of the African Union.
Progress at the REC level: legal stumbling blocks
Most of the sub-regional economic integration arrangements mentioned above have the aim to establish a customs union and a common market through the abolition of obstacles to the free movement of goods, persons, services and capital. The achievement of these goals has, in most cases, been very slow for political reasons; however, legal factors have also contributed significantly to the near collapse of these goals.
In comparison to the European Union (EU) which most African Economic Integration agreements emulate, all RECs lack a clear and detailed treaty framework and an effective regional enforcement regime synonymous to the European Court of Justice (ECJ). Whilst most of the prominent RECs have been inspired by the EU legal framework and have adopted different variations of it, these RECs have not achieved the same degree of success as the EU in achieving basic economic integration goals such as a customs union and a common market. This is largely due to the lack of clarity of the status of regional laws/Treaties in Member States and the absence of effective regional enforcement mechanism within the Treaties.
Status of regional law in Member States
Whilst the EU Treaties effectively articulates the status of Treaties and legal instruments in Member States, only the COMESA and WAEMU treaties do this. The EAC attempts to articulate the status of EAC legal instruments but fails to define the legal instruments to which it accords a status. In the case of COMESA, despite the detailed provisions on the status of Treaty and secondary laws in Member States, there are still significant obstacles to the common market objectives. For instance, obstacles to the free movement of goods due to non-tariff barriers still hinder trade among Member States.
In the case of WAEMU, although the treaty provision on the status of WAEMU legal instruments is an exact mirror of the relevant EC treaty provision, there are still major gaps in the achievement of the objectives of WAEMU. This is largely due to the non-implementation of WAEMU provisions in Member States. As such, apart from the free movement of capital which has seen significant progress, the achievement of the other common market goals is still a challenge.
The vagueness of most of the REC Treaty provisions indicates that no sound preparation for Member States’ compliance with the Treaties was made by the Treaty drafters or indeed the ratifying Member States. It is no wonder that hardly any of these RECs have fully achieved any of their goals.
The RECs that provide for legal instruments to have binding effect but fail to clarify the method of their implementation in Member States (such as ECOWAS, EAC and AMU) leave the implementation of these instruments to the whim of national parliaments to decide. The failure of most Member States to give a supreme status to REC provisions over national law means that these REC legal instruments would not be recognised in most Member States. What could have made matters better would have been for the REC treaties to stipulate the precise status of REC legal instruments – as was done in the case of the EC Treaty.
However, it has to be mentioned that even in cases where the REC Treaty appears to provide for this, such as the cases of COMESA and WAEMU, the failure of Member States to accord a supreme status to REC provisions makes the articulation of the status of such legal instruments in the REC Treaty redundant. The reason for this is that African states generally do not have a reputation of complying with REC Treaties and legal instruments.
Absence of regional enforcement mechanisms
The second legal challenge is weak regional enforcement mechanisms. The European Court of Justice (ECJ) plays a significant role in the functioning of the EC. This is so as the EC Treaty gives the ECJ responsibility for ensuring that in the interpretation and application of the Treaty the law is observed. Its role is therefore significant to the extent that it is the institution that interprets and enforces primary and secondary legislation of the EC.
The ECJ, as part of this function, has the power to interpret Treaty provisions where national courts or tribunals refer cases to it. The various referrals of landmark cases to the Court and the subsequent implementation of these ECJ’s interpretation in national jurisdictions, confirms the supremacy of EU law. It was through this that the ECJ was instrumental in the development of the common market and in the integration process.
This is however, not the case with the African RECs. Although most of the REC Treaties provided for the existence of an enforcement body in the form of a Court or Tribunal, which would ensure the interpretation of the Treaty and the resolution of disputes among Member States arising from the Treaty, it was only the COMESA, EAC and WAEMU Treaties which provided for Member State courts to refer cases to regional courts or Tribunals. Thus, in most cases, REC enforcement bodies have failed to establish bodies of jurisprudence since their creation.
The absence of a provision on preliminary referrals of disputes to regional enforcement did not provide the REC enforcement bodies the opportunity to develop regional law and possibly, the supremacy of such laws. Even in the cases of COMESA, EAC and WAEMU where such provisions were transplanted from the EC Treaty, this is not known to have in any way boosted the power of the courts in enhancing the fulfilment of the common market goals as was done in the case of the ECJ. Thus, there are still high levels of non-compliance by Member States with the free movement of goods and customs union provisions for which Member States have not been able to secure compliance by other Member States through judicial intervention by the COMESA, EAC and WAEMU Courts. So although their treaty provisions carved a supreme status for their regional courts within national judicial systems, the results have not been similar to that of the ECJ.
An agenda for legal reform
The effect of these legal challenges on REC regional economic integration goals calls for legal reform at both regional and domestic levels. These reform should include: Clarifying REC treaty provisions on the status of regional laws in Member States; strengthening the regional enforcement mechanisms; strengthening domestic legal and judicial systems in order to enable them effectively enforce regional treaties; Member States granting supreme status to REC laws; recognising the superior status of REC law by all the organs of Member State governments; recognising the superior status of REC law at all levels of government and introducing African integration law within the legal education curriculum.
It also has to be mentioned that the adoption of the EU framework for deeper forms of economic integration such as a monetary union should be done only to the extent that it is adaptable to the African context especially taking into account the causes of the current debt crisis affecting the eurozone area.
Dr Iwa Salami is a lecturer in International Financial Law at University of East London ([email protected]). Her expertise is in financial regulation and integration in emerging economies
The article is an edited version of Salami, I., ‘Legal and Institutional Challenges of Economic Integration in Africa’ (2011) 17(5) European Law Journal 667-682.
This article was published in GREAT Insights Volume 1, Issue 1
Dr. Iwa Salami