Chapter (6): Integration in Africa
6.4. Legal and Institutional Challenges of Economic Integration in Africa
Moreover, Douglass North’s emphasis on the essence and significant status of property rights is well shown in this case. There are in fact many similar cases thrown at African Community Court even though there are not alone dealing with such cases. Yet, African courts, happily, have the rich experiences of other courts working on issues of regional and international economic law, such as the ECJ, WTO Panels and Appellate Body, to take the examples from. Nonetheless, they should eventually seek their own unique regional models as all this just furnishes the ground with relevant legal examples and experiences that can be useful for regional integration as they are to set examples too applicable to the MENA region.
Last but not least, despite the fact that there are a great amount of reported treaty infringements in African RTAs (Regional Trade Agreements), in particular Non-Tariff Barriers (NTBs), there are few trade disputes mechanisms, and infringement actions in the African Regional Courts. In brief, we can refer to four possible explanations for this phenomenon: 1- Preference of Diplomacy methods, 2- Low-level of Trade, 3- Unwillingness of the Secretary General of the RTAs in proceeding action, and 4- Weak sanctioning provisions.478 In short, from all the above discussions it can be asserted that in fact the legal and institutional structure and performance are weak in majority of states in Africa.
implementation of the community’s objectives.481 Oppong is suggesting the predominance of the rule of law at community level in order to reach the objectives of the economic integration, even though he acknowledges a disadvantage to this view when it comes to decision-making at the community level.
Since the Assembly is composed of politicians representing member states’ interests, it is possible that under such structure, rather political consideration would be taken into account instead of the ultimate goal of the AEC.
In case of the European Union for example, the issue would be quite different because in their context, we have the European Commission that is described as being the most important political force behind integration thus pushing forward the objectives of the Union.482 As such, in contrast; the executive, legislative, judicial and administrative functions of the European Commission cannot be matched with any of the AEC’s institutions or the rest of communities in Africa483 (inclusive vs. extractive institutions).
Having that said, the African Court of Justice (the Court of Justice of the AEC) is an important institution playing the key role for the enforcement of AEC law.484 Having an independent status from all other community institutions, its mandate is to ‘ensure the adherence to law in the interpretation and application of [the AEC Treaty] and . . . decide on disputes submitted thereto pursuant to [the AEC Treaty].’485
Moreover, Article 20 of the AEC Treaty stipulates that a protocol should be adopted to regulate the work of the court. This is while no such protocol has been adopted yet.486 Unfortunately, the African Court of Justice perhaps would be a good example reflecting the convolution as well as the inappropriateness of institutional roles.487 This is while in accordance with Article 28 of the Statute of the African Court of Justice, the far-reaching jurisdiction over all cases, as well as all necessary mandates are rested upon the African Court of Justice.
The African Court of Justice, as a court performing for the political organization of the African Union, looks unproblematic in the sense that its structure and jurisdiction are very much like those of the International Court of Justice of the United Nations Organization. However, as a court whose jurisdiction
481 Ibid, with reference to: art. 8(2) of AEC Treaty.
482 Oppong, p. 168; referring to: “Craig and de Bu´rca (2003), p. 64.”
483 Oppong, p. 168-169.
484 Ibid, p. 171; referring to: “Obilade (1993), p. 312.”
485 Ibid, with reference to: “AEC Treaty, art. 18(2).”
486 Oppong, p. 171.
487 Ibid, p. 184.
encompasses economic integration issues, its structure and jurisdiction seem very inadequate.488 It is so far the only court whose jurisdiction encompasses an economic integration treaty and such jurisdiction is not compulsory. That is to say a party to the AEC Treaty would not be subject to the jurisdiction of the court when it has not ratified the Protocol of the African Court of Justice.489 This has a direct impact on the application and enforcement of AEC law.
As shown in different parts of this analysis, the European Community (EC) has been like the pioneer model for regional integration projects around the globe while resting in particular great inspiration for regional integration in Africa. Within the EC structure we see two important existing elements that bring about such success for the organization. The first is the EC legal framework backed by the second factor that is an effective regional enforcement regime in the European Court of Justice (ECJ). These two have played a significant role in bringing success to the European Economic Community (ECC) since its inception in 1957.490
Like Oppong, Salami also emphasizes the weakness of the legal institutions within the African continent.
Accordingly, the RECs (Regional Economic Communities) that are to provide legal instruments with binding effect have overall failed to clarify the methods by which their implementation within the member states (such as ECOWAS, EAC and AMU) could be materialized. Such implementation in fact has been left to the whim of national parliaments for decision-making.491 Because of the major institutional differences, despite embracing the EC model of economic integration, such RECs may not achieve the same successes as those of the EC unless some necessary reforms would take place. Iwa Salami is suggesting some proposals as reform policies which follow:
1- REC Treaty Clarity on Status of REC Legal Instruments in Member States, 2- Strengthening the Regional Enforcement Mechanisms (i.e. the Role of the Courts),
3- Effective Domestic Legal and Judicial Systems (i.e. through “a legal and judicial reform”), 4- Recognition of African Integration Law within the Legal Education Curriculum,
5- Member States according Supreme Status to REC Law, and;
6- Recognition of Superior Status of REC Law by All the Organs of the State and at All Levels of Government (in other words, institution-building at all levels).
488 Ibid.
489 Ibid, referring to: “Statute of the African Court of Justice: art. 29(2).”
490 Salami, Iwa. “Legal and Institutional Challenges of Economic Integration in Africa.” European Law Journal, Vol.
17, No. 5, Sep. 2011 pp. 667-682.
491 Salami, P. 673.