Laws, Institutions, and Economic Integration in Africa

Relational issues are mostly related to the socio-economic and political factors that provide the raison d’etre for Africa’s regional economic integration conditioning at times its progress and effectiveness.

Such political and economic factors in case of Africa are greatly influenced by the colonial (British) era

440 Ibid, p. 25.

coupled with the geographical tightness and proximity which have formed a natural “bond of interdependency.”⁴⁴¹ In addition, from a legal perspective, the colonial experience may often be considered an important complement to economic integration due to the common legal infrastructure it has created.

Communities in Africa mainly adhere to the Common Law system, and Roman-Dutch law or civil law tradition which all are the result of their colonial associations with Britain, France and, to a lesser extent, Belgium, Portugal, Germany and the Netherlands. Within the above explained colonial legacy lie solutions to the challenges in integration. In other words, they can meaningfully address such challenges through the ‘harmonization of laws’.

On the other hand, such colonial legal legacy can also sometimes constrain economic integration. In this scenario, the difference in legal infrastructure is like the difference in institutional infrastructures and it matters when it comes to regional integration or cooperation agreements. Nonetheless, what matters the most is the key success in economic integration which can be achieved by the principle of good governance composed of democratic governance, the rule of law, and political stability.

Many African countries in fact have been trying to consolidate the rule of law within their colonies while struggling to strongly maintain their sovereignty. This has created clashes by which a number of member states of the communities are reversely suffering from undemocratic regimes, abuse of power and political instability. In some cases such as the EAC, in which Kenya, Tanzania and Uganda were British colonies, the association with such former colonial powers could have been a drain on the processes of economic integration in Africa.⁴⁴² Same analogy can be seen in Acemoglu and Robinson’s Why Nations Fail. They show the defects of political institutions in some of African countries that hinder the economic progress even inside their regimes let alone further development within the regional context.

Comparing the slave trade in south east Asia and India with that of Africa, Acemoglu and Robinson illustrate how the machinery of such trade caused many of the local African governments to crumble and as the result the ‘persistent extractive institutions’ got in place even through the public sectors of the African states thus capturing and selling slaves to Europeans. This whole scenario repeated itself in Africa consolidating such extractive institutions and thus bringing about the failed states of today in Africa.

441 Ibid, p. 26, referred to: “Ndulu (2006).”

442 Ibid; referred to: Amuwo (1999).

Some few parts of Africa could escape such a slave trade system such as South Africa is which a different set of institutions had been imposed by Europeans as designed to create a reservoir of rather cheap labor for their farms and mines. This created a dual economy for the South Africa thus preventing 80 percent of their population from participating in commercial farming, skilled occupations and entrepreneurship. All this shows how and why industrialization greatly passed by large parts of the world and how economic development would feed on so as to create underdevelopment in some other parts of the world either domestically or globally.⁴⁴³

It is noteworthy that the above story in its different forms took place in case of many countries within the MENA region as well. In MENA, many of the governments were in fact acting as the proxies of the colonial powers establishing such extractive institutions in their countries and thus expanding it throughout the region. Likewise, the above explained impact of the colonial era expound a great part of the hurdle to development in Africa which even caused serious regional conflicts in that continent from time to time. As we go on through stages of regional cooperation and economic integration, the effects of such era still shadow integration. As such, there are many socio-economic and political factors that challenge or even hinder economic integration processes or undermine its effectiveness. These include the diversity in political ideology and political systems in Africa, the absence of mutual trust among the relevant member states, or lack of homogeneity in the level of economic development, as well as the issue concerning the even-distribution of the benefits gained out of economic integration.⁴⁴⁴

Richard Oppong is suggesting a legal framework for managing relational issues. Indeed, regardless of the stage of an REC, it is certain to say that integration through a harmonized legal framework creates some juxtaposition among states, laws, legal systems and institutions to achieve a common vision in respect to economic development.⁴⁴⁵ As a result of these institutions, a complex web of relations would emerge that encompasses the principal actors such as the community, member states, some other international organizations and of course individuals. And the main challenge in an attempt to reach economic integration would be structuring and managing the relations between and among such actors.

Accordingly, such legal framework and mechanism to address relational issues have their foundations in public and private international law. They are also influenced by domestic constitutional laws. They can act as relational principles of law for economic integration (“relational principles”).⁴⁴⁶ Since many of these principles have roots in public and private international law; therefore, a harmonization of the legal

443 Acemoglu, Daron; and Robinson, James A. “Why Nations Fail: The Origins of Power, Prosperity and Poverty.”

New York, p. 273.

444 Oppong, Richard Frimpong. “Legal Aspects of Economic Integration in Africa.” pp. 28-29.

445 Ibid, p. 30.

446 Ibid, p. 32.

structures with that of international law could be a key factor to an effective regional economic integration. The WTO laws would be an example and the compliance of the community laws with it would be an effective step in forming successful regional integration.

The first step to reach this goal would be to establish an economic community. Interestingly, some significant international organizations that first demonstrated supranational characteristics were in fact economic communities, namely the European Communities (now the EU) and, subsequently, the East African Community.⁴⁴⁷ The difference however, is that the EU adopted some norms through the jurisprudence of the European Court of Justice (ECJ) for which Joseph Weiler uses the concept of

“normative supranationalism.” Normative supranationalism deals with the hierarchy and the relationship between the legal measures and community policies on the one hand, and legal measures and competing policies on the other.⁴⁴⁸ Notably he provides three key elements namely direct effect, supremacy and pre-emption as the core attributes of the concept.⁴⁴⁹

Normative supranationalism is in fact the result of well-matured institutions within the community.

Therefore, the more economic interactions take place between and among communities, the more we would be able to institutionalize such norms. And in this process, local norms are important. Not every norm may claim a legitimate place in a legal system. Hence, norms that are external to a legal system, such as international law and the laws of other states, would be treated differently from the norms that are considered internal to the legal system. Noteworthy to mention that the four elements of a legal system (order) are: 1- Rules; 2- Subjects; 3- Legitimate sources of law and; 4- Obligation to obey the rules.

Within such framework the ‘normative supranationalism’ can emerge in the course of time. That is why it is important to recognize the local institutions; their strengths and weaknesses and then venture to find solutions at a regional level.

In case of MENA too, such quality as to the strengths and weaknesses of the local institutions ought to be recognized as it can base the corner-stone of an economic integration. In forming such structure, political consensus, and compliance with the laws ought to be apparent. Under such a common banner of cooperation, relational principles can be adopted by communities aimed at enhancing their lawmaking and enforcement powers. And as such, the autonomy of community would also be respected. Moreover, the principles of Direct Applicability, Direct Effect, the Supremacy of Community Law, and the principle

447 Oppong, p. 35: referring to: “Schermers (1972), p. 21, where he characterizes the East African Community together with the European Communities as the most supranational organizations existing at the time”.

448 Ibid, with reference to: “Weiler (1981), p. 271; and Weiler (1991).”

449 Ibid, referred to: “Weiler (1981), pp. 273–279.”

of Preliminary Reference Procedure need to be considered. Through the principle of direct effect in fact individuals can invoke community law before a national court.⁴⁵⁰

To emboss the role of individual within the community legal system and with democratic freedom, parliamentary participation may also present the active involvement of national parliaments in a community’s legislative processes thus providing an indirect means for individuals to influence the activities of the community. It is noteworthy that the principles of direct applicability and direct effect are different.⁴⁵¹ “Direct applicability deals with the processes or means by which community law is implemented nationally. Direct effect deals with the legal enforceability of rights created by the laws that have become part of national law.” In other words, direct effect is a more advanced stage of applicability and what it means is that all directly effective laws would be considered as part of national law, however, not all directly applicable laws are directly effective; in other words, not all laws are enforceable.⁴⁵²

Furthermore, a preliminary reference procedure as part of the legal framework regulating community–

state relations can help to overcome this challenge of interpretation. In fact, through preliminary reference procedure a lower court may seek interpretive guidance from a superior court on the matter of law in the administration of justice so as to make sure the conformity with that of superior court’s ruling. Within the context of economic integration, the preliminary reference procedure has the role of uniting community and national courts in an integrated system of judicial decision-making. In other words, it simply creates an institutional link between community and national courts.⁴⁵³ Beyond diffusing the meaning of law for the member states to be applied in their national courts, it also ensures unity and coherence within a community’s legal system.

To summarize, relational issue can pose one of the main challenges to an effective economic integration.

Therefore, the effectiveness of the integration processes heavily depends on relational issues especially when implementing the community law. The above mentioned principles can give a constructive response to such challenges depending on the constitutional accommodation in member states. Besides, various socio-cultural, economic and political factors, rethink of national laws, procedures, legislative and judiciary, while adopting international laws can all play positive role on the effectiveness of the integration processes. National and community courts and their relations constitute the core part of such integration processes.

450 Oppong, pp. 45-46; referring to: “Craig (1992); and Dashwood (1977).”

451 Oppong, p. 46; referring to: “Winter (1972).”

452 Ibid, p. 46.

453 Oppong, p. 49.