European Law Journal, Vol. 17, No. 5, September 2011, pp. 667–682. © 2011 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA Legal and Institutional Challenges of Economic Integration in Africa Iwa Salami* Abstract: There is a plethora of economic integration arrangements on the African continent and almost all African countries belong to more than one economic integration group. The African Union (AU), which was established in 2001, and which took over from the failed Organisation of African Unity, attempts to consolidate economic integration arrangements in Africa within one structure. Although this appears simple on paper, there are huge legal and institutional challenges and questions arise as to whether an Africanwide economic integration arrangement can be achieved within the time frame set for this in the African Economic Community (AEC) Treaty. This paper assesses the legal and institutional challenges facing the AU/AEC agenda. I Introduction Fourteen sub-regional economic integration arrangements exist on the African continent and they are the following: Arab Maghreb Union (AMU), Community of SahelSaharan States (CEN-SAD), Economic and Monetary Community of Central Africa (CEMAC), Economic Community of Great Lake Countries (CEPGL), Common Market of Eastern and Southern Africa 1993 (COMESA), East African Community (EAC), Economic Community of Central African States (ECCAS), Economic Community of West African States 1975 (ECOWAS), Inter-Governmental Authority for Development (IGAD), Indian Ocean Commission, Manor River Union, Southern African Customs Union, Southern African Development Community (SADC) and West African Economic and Monetary Union (WAEMU). Of these 14, only eight are recognised by the African Union (AU) and they include the following: AMU, EAC, CEN-SAD, COMESA, ECCAS, ECOWAS, IGAD and SADC. This paper focuses on the seven prominent ones, which are AMU, EAC, COMESA, ECCAS, ECOWAS, IGAD and SADC. It also considers the special case of WAEMU, which, although is not recognised as a Regional Economic Community (REC) under the AU, is still a prominent regional economic integration arrangement in Africa as its members belong to other RECs recognised by the AU. Part II of this paper presents a brief history of economic integration in Africa and introduces the main RECs that fall within the ambit of the AU. It also assesses their effectiveness in achieving their treaty goals since they were established. Part III considers the legal and institutional challenges facing the RECs and their implications on * Lecturer in Law, School of Law, University of East London, UK. eulj_572 667..682 European Law Journal Volume 17 the overall AEC/AU agenda. Part IV outlines proposals for reform and Part V concludes. II Brief History of Economic Integration in Africa 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.1 It sought to achieve this through coordination and harmonisation in the field of economic and political cooperation.2 Other sub-regional efforts were established in Africa and existed concurrently with the OAU. 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 adoption of the Lagos Plan of Action in 1980 by the OAU. This plan resulted in the treaty establishing the African Economic Community (AEC), which was signed by OAU heads of state and government in June 1991. The AEC Treaty came into force after the requisite numbers of ratification in May 1994. Since its ratification, the OAU operated on the basis of the OAU Charter and the AEC Treaty. The AEC Treaty provided for the AEC to be set up through a gradual process, which would be achieved by coordination, harmonisation and progressive integration of the activities of existing and future RECs in Africa. The RECs recognised as pillars of the AEC include the AMU, CEN-SAD, EAC, ECCAS, ECOWAS, COMESA, IGAD and SADC 1992. The RECs are regarded as the building blocks of the AEC. The ultimate aim of the AEC, among others,3 is to achieve by 2028 an African Central Bank and single currency in six stages over a period of 34 years.4 The stages are composed of the following: • Stage 1: strengthening existing RECs and creating new ones where needed. This was to be achieved in five years; • Stage 2: stabilisation of tariff and other barriers to regional trade and the strengthening of sectoral integration, particularly in the field of trade, agriculture, finance, transport and communication, industry and energy, as well as coordination and harmonisation of the activities of the RECs. This was to be achieved in eight years; • Stage 3: establishment of a free trade area and a Customs Union at the level of each REC. This was to be achieved in 10 years; • Stage 4: coordination and harmonisation of tariff and non-tariff systems among RECs, with a view to establishing a Continental Customs Union. This was to be achieved in two years; • Stage 5: establishment of an African Common Market and the adoption of common policies. This was to be achieved in four years; • Stage 6: integration of all sectors, establishment of an African Central Bank and a single African currency, setting up of an African Economic and Monetary Union 1 2 3 4 Art 2(1)(2), Charter of the Organisation of African Unity (OAU Charter). Art 2(2)(b), OAU Charter. Art 4(1), AEC Treaty provides that the aim of the AEC is to promote social and cultural development as well as African economic integration with the aim of achieving economic development. Art 6(2), AEC Treaty. 668 © 2011 Blackwell Publishing Ltd. September 2011 Economic Integration in Africa and creating and electing the first Pan-African Parliament. This was to be achieved in five years. The OAU was, however, transformed to the AU in 2001, under a new Constitutive Treaty.5 The reason for this was 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.6 The AU was thus established in conformity with the ultimate objectives of the OAU Charter and the treaty establishing the AEC. The union was thus to evolve from the OAU and the AEC into one unified institution. In general, the AU 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 AU.7 Most of the sub-regional economic integration arrangements mentioned earlier 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. By definition, a custom union is the existence of the free movement of goods within the union and the existence of common external tariffs as against non-member countries.8 A common market is defined as an area with a customs union and where the free movement of goods, services and capital exists.9 Suffice to say that none of the regional arrangements can boast of having a truly functional common market and this is the case even with COMESA, which is referred to as a common market. It is also the case with other African regional arrangements that have a monetary union such as SADC, WAEMU and CEMAC.10 A major reason for this, and indeed a characteristic of all the RECs, is the weakness in their legal framework, which has impacted their ability to achieve their goals and which would certainly inhibit the achievement of the ultimate AU objectives. The ensuing paragraphs assess the legal framework of the RECs and link this to their inability to achieve their goals. III An Assessment of the Legal Framework of the RECs and Their Implications for Achieving the Overall AU Goals The European Community (EC) has been the pioneer of regional integration projects worldwide and has indeed been a great inspiration for regional integration in Africa. It is undoubted that the EC legal framework backed with an effective regional enforcement regime in the European Court of Justice (ECJ) has played a significant role in its success since its inception in 1957 as the European Economic Community (EEC). As the EC is an inspiration for African integration, this section assesses the legal framework of RECs by making comparisons with the EC framework using features of 5 6 7 8 9 10 The Constitutive Act of the African Union (AU Act), available at http://www.africa-union.org/About_AU/ AbConstitutive_Act.htm (accessed 11 November 2010). African Union, African Union in a Nutshell, available at http://www.africa-union.org/root/au/AboutAu/ au_in_a_nutshell_en.htm (accessed 11 November 2010). Art 33 (2), AU Act states, ‘The provisions of this Act shall take precedence over and supersede any inconsistent or contrary provisions of the Treaty establishing the African Economic Community.’ B. Balassa, The Theory of Economic Integration (Greenwood Press Publishers Westport Connecticut, 1961), at 2. Ibid. WAEMU and CEMAC are both outside the ambit of the AU/AEC agenda. © 2011 Blackwell Publishing Ltd. 669 European Law Journal Volume 17 the EC legal regime that have contributed to its success. It assesses the extent to which these are embraced by the RECs since the AU, AEC and RECs’ treaties all have been inspired by the EC Treaty framework. Comparisons shall be made on the basis of clarity of the status of regional law in Member States and the powers conferred to the regional enforcement mechanism within the treaties. A Status of Regional Law in Member State Most RECs would usually have primary and secondary law. The treaty provision establishing the REC constitutes the primary law of the REC. The secondary law is composed of all other legal instruments passed by the institutions of the organisation. In the case of the EC, the EC Treaty and its subsequent amendments, all constitute the primary law of the EC. Article 10 EC Treaty outlines Member States obligations to the treaty; it states, ‘Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks.’ Article 249 of the EC Treaty lays down the secondary law or the EC legislative instruments and their effect in Member States. These legislative instruments included regulations, directives, decisions, recommendations and opinions. Regulations have general application, are binding in their entirety and are directly applicable in all Member States. Directives are binding on states as to the purpose to be achieved but leave freedom as to the means of achieving the stipulated goal. Decisions are binding to those they are addressed. Recommendations and opinions are not binding. Suffice to say that these secondary provisions were, to a large extent, preserved in the failed draft Constitution of Europe, which was not ratified by the states.11 Also, this draft constitution had clearly stated that it would have primacy over the law of the Member States.12 However, unlike the EC provisions, most of the REC treaties fail to provide for the status of REC legal instruments in Member States. Although similar to the EC Treaty, most REC treaties have a general provision on adherence to their treaty obligation; however, unlike the EC Treaty, most REC treaties do not provide for the status of REC secondary law or legal instruments in Member States. In the case of ECOWAS, for example, the status of the 1975 Treaty was articulated in Article 3, which stated, ‘The Member States shall make every effort to plan and direct their policies with a view to creating favourable conditions for the achievement of the aims of the Community; in particular, each Member State shall take all steps to secure the enactment of such legislation as is necessary to give effect to this Treaty.’ With respect to secondary instruments, there were two main types of legal instruments originating from two institutions of the community. The first two were the ‘Decisions’ and ‘Directions’ of the Authority of Heads of States. The second two were the ‘Decisions’ and ‘Directions’ of the Council of Ministers. The Authority of Heads of State is the highest institution of the community and their ‘Decisions’ and ‘Directions’ were binding on all institutions of the community.13 The ‘Decisions’ and ‘Directions’ of the 11 12 13 Art I-33, the proposed EU Constitution. Art I-6, the proposed EU Constitution stated that ‘The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.’ Art 5(3), ECOWAS Treaty 1975. 670 © 2011 Blackwell Publishing Ltd. September 2011 Economic Integration in Africa Council of Ministers, on the other hand, were binding on all subordinate institutions of the community.14 The treaty made no mention of the effect of these legal instruments on Member States. The failure of the treaty to specify the binding effect of ECOWAS provisions was a major drawback of the 1975 Treaty. The revised 1993 Treaty sought to ameliorate this drawback. While the 1975 Treaty failed to mention the binding effect of the ‘Decisions’ of the Heads of States on Member States,15 the 1993 Treaty clearly states that the ‘Decisions’ of the authority shall be binding on the Member States and the institutions of the community.16 It, however, did not state the precise legal effect of ‘Decisions’ in Member States. This was in contrast to the position under the EC Treaty where the precise effect of EC secondary instruments in Member States was stipulated. The status of both the primary and secondary law of the other RECs within Africa is pretty much the same. In the case of SADC, for example, the treaty provides, vaguely, for the treatment that should be accorded SADC treaty provisions, it states in Article 6(1), ‘Member states undertake to adopt adequate measures to promote the achievement of the objectives of SADC, and shall refrain from taking any measure likely to jeopardise the sustenance of its principles, the achievement of its objectives and the implementation of the provisions of this Treaty.’ Article 6(4)–(5) further states that, ‘Member states shall take all steps necessary to ensure the uniform application of this Treaty. Member States shall take all necessary steps to accord this Treaty the force of national law.’ No mention is made of secondary law nor did any provision cater for the treatment of such law in Member States. The position of the EAC revised 2007 Treaty is somewhat interesting. This provision is quite similar to the EC Treaty in certain respects. Article 8(4) states that ‘Community organs, institutions and laws shall take precedence over similar national ones on matters pertaining to the implementation of this Treaty.’ It fails to consider or even acknowledge that there might be national provisions that are totally dissimilar with the treaty or its objectives and fails to provide which law should prevail in this instance. The same criticism can be levelled against Article 8(5), which states that ‘In pursuance of the provisions of paragraph 4 of this Article, the Partner States undertake to make the necessary legal instruments to confer precedence of Community organs, institutions and laws over similar national ones.’ What if the national provisions are dissimilar and totally contradict the regional framework? Does this mean that there would be no need to make it comply with the EAC Treaty? This is the likely interpretation since there would be no need to pass the ‘necessary legal instruments’ conferring precedence of community organs, institutions and laws since the domestic law in question is not similar to the treaty provision. Furthermore, Article 16 seems to mention secondary law of the EAC but fails to define the status of each. The title of this article is ‘Effects of Regulations, Directives, Decisions and Recommendations of the Council.’ It then states in a new paragraph, ‘Subject to the provisions of this Treaty, the regulations, directives and decisions of the Council taken or given in pursuance of the provisions of this Treaty shall be binding on the Partner States, on all organs and institutions of the Community other than the Summit, the Court and the Assembly within their jurisdictions, and on those to whom they may under this Treaty be addressed.’ These are very interesting provisions indeed 14 15 16 Ibid, Art 6(3). Ibid, Art 5(3). Art 9(4) and 12(3), ECOWAS Treaty 1993. © 2011 Blackwell Publishing Ltd. 671 European Law Journal Volume 17 as apart from the treaty, this is the first reference to regulations, directives and decisions of the council. None of these instruments that should, ideally, have different binding effects have been defined––contrary to the provisions of the EC Treaty, which it sought to transplant. The position of ECCAS is also interesting. Article 5(2) articulates the status that should be accorded the treaty in Member States by stating that ‘Each Member State shall take all steps under its constitutional procedures to secure the enactment and publication of such legislation as is necessary to give effect to this Treaty.’ Article 11(1)–(3) and Article 15 outline decisions, directives and regulations as the secondary provisions of ECCAS and seek to provide for their effect in Member States. Article 11(1)–(3) states that The Conference shall act by decisions and directives. Decisions shall be binding on the Member States and institutions of the Community, except for the Court of Justice. They shall become enforceable automatically in Member States Thirty (30) days after the date of their publication in the official journal of the Community. Directives shall be binding on the institutions concerned, except for the Court of Justice. They shall come into force upon notification and shall be published in the official journal of the Community. Article 15(1)–(3) on regulations states that, ‘The Council shall act by regulations. Regulations shall be binding on the Member States and institutions concerned, except for the Court of Justice. They shall be enforceable automatically in Member States thirty (30) days after the date of their publication in the official journal of the Community. They shall become effective for the institutions concerned immediately upon notification.’ These provisions indicate that Decisions and Regulations take immediate effect in Member States 30 days after the date of their publication in the official journal of the Community. This is somewhat ambitious and overlooks that Member States may have different legal systems that could have implications on the effect of international law within their jurisdiction. Dualist states, for example, would tend to have to pass the international law into their domestic law before it can have effect, whilst monist states––which are more amenable to the ECCAS type of provisions––apply international law directly, provided the Member States are a party to the international law in question. The AMU Treaty is quite skeletal, and aside from Article 6, which provides that ‘Only the Presidential Council shall have the right to make decisions (and) . . . the decisions shall be made unanimously . . . ,’ no other provisions exists to define the status of the treaty in Member States or for that matter, the status of the supposed secondary legislation of AMU that it outlines in the form of decisions in Article 6. It is thus no wonder that the AMU is currently inactive. However, as the region it covers has a history of political conflicts, perhaps the treaty should have taken the form of an informal agreement among Member States than be accorded treaty status. Similar to the AMU Treaty, the IGAD agreement is quite skeletal but at least is generally given the status of an agreement and not a treaty. It has no binding effects and its provisions are quite soft. It would appear that the most detailed REC Treaty provisions are those of the COMESA Treaty, which, to a large extent, mirrors those of the EC Treaty. Articles 2 and 10 clearly distinguish between the status of the treaty provisions and secondary legislation of the council in Member States. Article 2 states that ‘Each Member State shall take steps to secure the enactment of and the continuation of such legislation to give effect to this Treaty and in particular . . . to confer upon the regulations of the Council the force of law and the necessary legal effect within its territory.’ Article 672 © 2011 Blackwell Publishing Ltd. September 2011 Economic Integration in Africa 10(1)–(5), which clearly mirrors Article 249 of the EC Treaty, clearly articulates the status of the secondary legislation of COMESA within Member States––a thing the other REC treaties blatantly omit. It states The Council may, in accordance with the provisions of this Treaty, make regulations, issue directives, take decisions, make recommendations or deliver opinions. A regulation shall be binding on all the Member States in its entirety. A directive shall be binding upon each Member State to which it is addressed as to the result to be achieved but not as to the means of achieving it. A decision shall be binding upon those to whom it is addressed. A recommendation and an opinion shall have no binding force. Despite these detailed provisions, on the status of treaty and secondary laws of COMESA in Member States, there are still significant obstacles to the common market objectives. For instance, obstacles to the free movement of goods, which are due to non-tariff barriers, still hinder trade among Member States.17 What would ultimately determine the application of these provisions in Member States would be the effectiveness of the regional enforcement mechanism and Member States according a supreme status to the COMESA Treaty and its legal instruments. In the case of WAEMU, the treaty states in its preamble that there is a need to enhance the monetary union through new transfers of sovereignty and authority to the WAEMU. One of the ways the sovereignty of WAEMU was to be achieved was by according its provisions primacy in Member States. Article 43, which is an exact mirror of Article 249 EC Treaty provisions, outlines the status of the different types of WAEMU provisions in Member States. These provisions include treaty supplementary instruments18 passed by the Conference of Heads of Government, regulations, directives and decisions.19 As is the case in the EC, regulations are directly applicable in Member States. Directives are binding on Member States with respect of results to be achieved. Decisions are binding to those states to whom they are addressed and recommendations and opinions are not binding. These provisions did not exist in the original WAMU treaty. Despite this, however, there are still major drawbacks in the achievement of the objectives of WAEMU. This is largely due to the nonimplementation 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.20 It can be gleaned from the vagueness of most of the REC Treaty provisions that treaty drafters, as well as the ratifying states, had made no sound preparation for Member States’ compliance with the treaties. 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 17 18 19 20 A. Mayda and C. Steinberg, Do South–South Trade Agreements Increase Trade? Commodity-Level Evidence from COMESA, IMF Working Paper 07/40 (International Monetary Fund, 2007), at 4. Art 19, WAEMU Treaty states that supplementary treaty instruments shall be appended to the treaty. They were to complement the treaty without amending it and organs of WAEMU and Member States were required to comply with them. Art 42, WAEMU Treaty. M. Goretti and H. Weisfeld, Trade in the WAEMU: Development and Reform Opportunities, International Monetary Fund Working Paper 08/68 (International Monetary Fund, 2008), at 7–9. © 2011 Blackwell Publishing Ltd. 673 European Law Journal Volume 17 recognised in most Member States. What, perhaps, 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. 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, regardless of the types of legal system in place––whether monist or dualist––generally do not have a reputation of complying with REC treaties and legal instruments. B The Strength of Regional Enforcement Mechanisms The ECJ plays a significant role in the functioning of the EC. This is so as Article 220 of the EC Treaty also 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,21 has the power to interpret treaty provisions where national courts or tribunals refer cases to it.22 The various referrals of landmark cases23 to the court and the subsequent implementation of these ECJ’s interpretation in national jurisdictions confirms the existence of the supremacy of EU law. In the first landmark case where the supremacy of EC law was questioned, the court stated that ‘the Community constitutes a new legal order in international law, for whose benefit the States have limited their sovereign rights, albeit within limited fields.’24 This was a clear pronouncement of the supremacy of EC law by the ECJ. Its jurisprudence, no doubt, contributes significantly to the general body of community law.25 It was through this that the ECJ was instrumental in the development of the common market and in the integration process. It promoted the integration process by ruling against barriers to the free movement provisions. This is clearly seen in cases such as Van Dyn26 and Rutili,27 where the court ruled against restrictions to free movement persons imposed by Member States. Also, in cases such as Reyners28 and Van Binsergen,29 the court was 21 22 23 24 25 26 27 28 29 The ECJ performs three main functions. First, it hears actions against community institutions (Arts 230–233 EC Treaty). Second, it hears actions against Member States (Arts 226–228, EC Treaty), and third, it provides preliminary rulings on the interpretations and validity of community at the request of Member State courts (Art 234, EC Treaty). Art 234, EC Treaty. Case 26/62, Van Gend en Loos [1963] ECR 1; Case 6/64, Costa v ENEL [1964] ECR 585. Ibid, Case 26/62. G. Bermann, R. Goebel, W. Davey and E. Fox, Cases and Materials on European Community Law (West Publishing Co USA, 1993), at 245–246; J. Steiner ‘Direct Applicability in EEC Law––A Chameleon Concept’, (1982) 98 Law Quarterly Review 239. Case 41/74, Van Duyn v Home Office [1974] ECR 1337, where the ECJ ruled that Art 48(1) and (2) of the original EEC Treaty on the free movement of workers imposed a precise obligation and leave the community and Member States authorities ‘no discretions as to implementation.’ Case 36/75, Rutili v Minister for the Interior [1975] ECR 1219. Case 2/74, Reyners v Belgium [1974] ECR 631 where the ECJ ruled that the free movement of services provision under Arts 59 and 60 of the original EEC Treaty had direct effect. Case 33/74, Van Binsbergen v Bestuur Van De Bedrijfsvereniging [1974] ECR 1299, where the ECJ ruled that the free movement of services provision under Arts 59 and 60 of the original EC Treaty had direct effect. 674 © 2011 Blackwell Publishing Ltd. September 2011 Economic Integration in Africa seen to enhance the integration process by ruling against obstacles to the free movement of services. In the area of the free movement of goods, the ECJ played an even more active role. It ruled in Cassis de Dijon30 that a Member State measure was ‘equivalent to a quantitative restriction’ and as such, violated the free movement of goods provision.31 This is, however, not the case with the African RECs. Although the REC treaties usually provide for the establishment of Courts of Justice or tribunals of the community, that was about all they did. In contrast to the case of the ECJ, most of them did not grant these regional enforcement mechanisms the power to hear cases referred to them by Member States courts. In the case of ECOWAS, for instance, the 1975 Treaty provided for the establishment of a tribunal. This tribunal was to ensure that law and justice were upheld in the interpretation of the treaty.32 The tribunal was also the institution designed to resolve disputes among Member States.33 The decisions of the tribunal were to be final in the event of a dispute that failed to be resolved amicably by Member States.34 No provision existed for the preliminary referral of disputes to the tribunal. It is no wonder that the tribunal failed to establish a body of jurisprudence before the treaty was revised. The absence of a provision on preliminary referrals of disputes to the tribunal failed to provide the tribunal with the opportunity of developing ECOWAS law and a possible supremacy of it. The 1975 ECOWAS Treaty was revised in 1993. The revised treaty emphasised the legal aspects of ECOWAS, which the 1975 Treaty had clearly omitted. The most notable change to the treaty was the provisions for the establishment of a ‘Community Court of Justice.’35 This court was to take on the functions of the tribunal referred to earlier. It further provided that judgments of the court were to be binding on Member States, institutions of ECOWAS, individuals and corporate bodies.36 Its competence, which was defined in a protocol, stated that it could hear disputes between Member States as well as between Member States and community institutions on the interpretation and application of the treaty.37 However, even the 1993 revised treaty has been unable to ensure the implementation of ECOWAS provisions in and by Member States. The primary reason for this again lies in the absence of the forum to develop the supremacy of the ECOWAS Treaty. Similar to the 1975 Treaty, no provision existed for the referral of cases by Member States national courts or tribunals to the ECOWAS Court for the interpretation of treaty provisions as was the case in the EC.38 Thus, in contrast to the case of the EC, where the ECJ was able to establish the supremacy of EC law through the subsequent implementation of the ECJ’s interpretation of EC law through the various referrals of landmark cases to it by Member States courts, no such provision exists in the revised ECOWAS Treaty.39 Thus, the ECOWAS Court of Justice could not play as instrumental a role as the ECJ in developing the common market goals of ECOWAS. 30 31 32 33 34 35 36 37 38 39 Case 120/78, Rewe-Zentral AG v Bundesmonopolverwaltung Fur Branntwein (Cassis de Dijon) [1979] ECR 649. Art 30, Original EC Treaty (Art 28, EC Treaty). Art 11(1), ECOWAS Treaty 1975. Ibid. Art 56, ECOWAS Treaty 1975. Art 6(1)(e), ECOWAS Treaty 1993. Art 15(4), ECOWAS Treaty 1993. ECOWAS Protocol A/P1/7/91 on the Community Court of Justice Art 9(2). Art 234, EC Treaty. Case 26/62, Van Gend en Loos [1963] ECR 1; Case 6/64, Costa v ENEL [1964] ECR 585. © 2011 Blackwell Publishing Ltd. 675 European Law Journal Volume 17 The position among the other RECs’ enforcement mechanisms is not much different from the case of the ECOWAS Court of Justice. Although most of the REC treaties provided for the existence of an enforcement body in the form of a court or a 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 that provided for Member State courts to refer cases to regional courts or tribunals. The other treaties such as SADC, ECCAS, AMU and IGAD and such as the ECOWAS Treaty had very ‘skeletal’ frameworks. In the case of the enforcement mechanism in the SADC Treaty, Article 16(1) provided that ‘The Tribunal shall be constituted to ensure adherence to and the proper interpretation of the provisions of this Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it.’ Article 16(4) states, ‘The Tribunal shall give advisory opinions on such matters as the Summit or the Council may refer to it,’ while Article 16(5) states that ‘The decisions of the Tribunal shall be final and binding.’ Article 32 further states that ‘Any dispute arising from the interpretation or application of this Treaty, which cannot be settled amicably, shall be referred to the Tribunal.’ These provisions are quite similar to those of ECOWAS and although similar to the case of ECOWAS, the treaty provides that the decisions of the tribunal shall be final and binding and that disputes that can not be resolved amicably shall be referred to the tribunal; it does not specifically mention Member States nor does it require their national courts to refer cases for clarification to the tribunal. As such, the tribunal could not develop SADC law in the same way as the ECJ was able to with the EC Treaty. Nor could it play as significant a role as the ECJ in enabling the achievement of the common market goals. In the case of the enforcement mechanism in WAEMU, the Court of Justice is the forum of litigation regarding cases of non-compliance by Member States with their legal commitments under both the monetary union and economic union constitutional provisions.40 The Court of Justice is to ensure compliance with the law in the interpretation and application of the Treaty of the Union.41 The WAEMU Treaty also states that the WAEMU Court may issue preliminary rulings concerning the interpretation of a treaty provision or instrument in the event of a dispute arising in a national court.42 The court, through this provision, is as such able to develop the supremacy of WAEMU law as has been the case with the ECJ armed with this same treaty-given power. Under this procedure, the national court’s ruling in final instance is required to refer such matters to the WAEMU Court.43 These WAEMU provisions, which were transplanted from the EC Treaty, are 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 WAEMU Court.44 So although the WAEMU provisions carved a supreme status for the WAEMU Court within national judicial systems, the results have not been similar to that of the ECJ. 40 41 42 43 44 Art 113(3), WAEMU Treaty. Art 1, WAEMU Treaty Supplementary Protocol No I. Art 12, WAEMU Supplementary Protocol No I. Ibid. Goretti and Weisfeld (n 20), 7–9. 676 © 2011 Blackwell Publishing Ltd. September 2011 Economic Integration in Africa The EAC Treaty Article 9(1)(e) also establishes the East African Court of Justice. Article 33(2) states that the decisions of this court ‘have precedence over decisions of national court on a similar matter.’ Again, just like the case of WAEMU, Article 34 of the EAC Treaty 2007 provides a similar provision on preliminary rulings of national courts as the EC treaty. It states, ‘Where a question is raised before any court or tribunal of a Partner State concerning the interpretation or application of the provisions of this Treaty or the validity of the regulations, directives, decisions or actions of the Community, that court or tribunal shall, if it considers that a ruling on the question is necessary to enable it to give judgment, request the Court to give a preliminary ruling on the question.’ Article 35(1) further states, ‘The Court shall consider and determine every reference made to it pursuant to this Treaty in accordance with rules of the Court and shall deliver in public session, a reasoned judgment: Provided that if the Court considers that in the special circumstances of the case it is undesirable that its judgment be delivered in open court, the Court may make an order to that effect and deliver its judgment before the parties privately.’ Through this provision, as in the case of the WAEMU Court, the EAC Court is armed with the power to develop the supremacy of EAC Treaty. However, just like the case of WAEMU, the court has been redundant at this function and no cases exist on its advancement of the EAC aims through its jurisprudence. In the case of COMESA as stated earlier, this is the most detailed treaty of all the REC treaties considered and which mirrors the EC Treaty. Its provision on the COMESA enforcement mechanism also mirrors the EC Treaty, and Article 19 provides that the COMESA Court of Justice shall ensure the adherence to law in the interpretation and application of this treaty. Article 30(1)–(2) on national courts and preliminary rulings provides for the highest court in the Member States to refer cases for preliminary rulings to the court where the matter concerns the interpretation of the treaty. This provision is the exact mirror of Art 234 EC Treaty. Despite these detailed provisions, the supremacy of EC law as achieved by the ECJ has not been developed within COMESA. Nor has the COMESA Court been instrumental in ensuring Member States’ fulfilment of their common market objectives. This is so as there are still significant obstacles to the free movement of goods that are due to non-tariff barriers, which hinder trade among Member States such as non-tariff barriers including import licensing and rules and regulations for the valuation of goods at customs.45 All these still occur without Member States calling for judicial intervention in their dealings with each other. In the case of ECCAS, the treaty provision is quite skeletal and makes skeletal provisions for the enforcement mechanism. Article 16 provides for the establishment of a Court of Justice that ‘. . . shall ensure that the law is observed in the interpretation and application of this Treaty and shall decide disputes submitted to it under this Treaty.’46 Article 16(3)(b) provides that ‘The Court shall decide on actions brought by a Member State or the Conference on the grounds of lack of competence, misuse of powers or infringement of an essential procedural requirement of this Treaty,’ while Article 16(3)(c) provides that the Court shall ‘. . . give preliminary rulings on: the interpretation of this Treaty; the validity of the decisions, directives and regulations formulated by Community institutions.’ Article 17 also provides that ‘The decisions of the Court of Justice shall be binding on Member States and institutions of the Community.’ 45 46 Mayda and Steinberg (n 17), 4. Art 61(2), ECCAS Treaty. © 2011 Blackwell Publishing Ltd. 677 European Law Journal Volume 17 It is interesting to note that despite the scantiness of the ECCAS Treaty, it somehow provides for the courts power to grant preliminary rulings––which have been the key to developing supreme regional law. It is, however, silent as to whom should be bringing questions to the court and under what circumstances this should be done. Is it the highest courts of the Member States as the EC Treaty and COMESA Treaty clearly specify or is it the institutions of ECCAS? Despite these provisions, the ECCAS Court has no records of enabling the achievement of ECCAS goals. In fact, the paramount priority shortly after ECCAS establishment was the institution of peace and security among its Member States due to regional conflicts.47 In these circumstances, a comprehensive provision on the court’s power to grant preliminary rulings would make little or no difference to the achievement of its common market goal. This goal was immediately pushed to the back-burner as the achievement of peace and security within the region became priority as without peace in the region, the common market agenda had no chance of success. In the case of AMU, the treaty is very skeletal and as such, the enforcement mechanism provision is scanty. Article 13 provides for the AMU enforcement mechanism, which is constituted in a judicial authority composed of two judges from each Member State, designated for a period of six years.48 They shall rule on disputes related to the interpretation and application of the treaty and agreements concluded within the framework of the union and its judgments shall be enforceable and final.49 No provision is made for preliminary rulings and the development of supremacy of the AMU Treaty was far from the agenda for the judicial authority as the union, similar to ECCAS, sought to achieve security and stability due to the conflicts within the region, which inhibited any attempts at establishing a common market.50 Similar to the cases of AMU, the IGAD Treaty is quite skeletal and makes no specific provisions for an enforcement mechanism. It, however, states in Article 18A(c) on conflict resolution that ‘ . . . Member States shall accept to deal with disputes between Member States within this sub-regional mechanism before they are referred to other regional or international organisations.’ However, the treaty fails to provide a regional enforcement mechanism for the resolution of disputes among IGAD Member States. It is not surprising that there was no provision for an enforcement mechanism as the focus of the arrangement, as in the cases of ECCAS and AMU, was the institution of peace and stability in the region. The region was at the time of its inception grappling with political conflicts among its Member States and civil conflict and tension within its Member States.51 As such, the achievement of the supremacy of IGAD law within the region was of no priority, not, in the least, with the absence of an enforcement mechanism to drive it. 47 48 49 50 51 African Union, Regional Economic Communities: History and Background of Economic Community of Central African States, available at http://www.africa-union.org/root/au/recs/eccas.htm (accessed 10 November 2010). Art 13 AMU Treaty. Ibid. C. Brunel, ‘Maghreb Regional Integration’, in G. Hufbauer and Claire Brunel (eds), Maghreb Regional and Global Integration: A Dream to Be Fulfilled (Policy Analyses in International Economics 86, Peterson Institute for International Economics, 2008), at 1. Also, see L. Martinez, ‘Algeria, the Arab Maghreb Union and Regional Integration’ (2006) 59 EuroMeSco Paper 8. A. Borchgrevink and J. Harald Sande Lie, Regional Conflicts and International Engagement on the Horn of Africa (Norwegian Institute of International Affairs, 2009), at 96–97. 678 © 2011 Blackwell Publishing Ltd. September 2011 IV Economic Integration in Africa Proposals for Reform Although most of the RECs have adopted the EC style of regional integration in both their treaty framework and their long-term objectives, this, in most cases, has not been done carefully. Therefore, despite embracing the EC model of economic integration, these RECs, as assessed earlier, can not produce the same successes as those of EC until necessary reforms occur. These reforms are required both at the regional and domestic levels and are discussed in the ensuing paragraphs. A REC Treaty Clarity on Status of REC Legal Instruments in Member States From the assessment of REC Treaties, it is clear that gaps exist. The draftsmen of most of the REC treaties under review in this paper did not clearly define the instruments that constitute secondary law nor did they provide for their effects on Member States except in the cases of the COMESA and the WAEMU treaties. A clear explanation of the effects of these instruments in Member States would be a step in the right direction in clarifying the weight that should be accorded them before the regional enforcement mechanism as well as before domestic courts. This would, as such, call for a reform of majority of the REC treaties. B Strengthening the Regional Enforcement Mechanisms As assessed earlier, a major drawback of the legal framework of the REC treaties is that the regional enforcement mechanisms have little or no real power. They have been given, in most cases, the duty to ensure that the REC treaties are implemented by states; however, they lack real power to make Member States comply with their treaty obligations. As considered earlier, the ECJ, which has been the model for regional enforcement mechanisms, was accorded with treaty powers to be able to advance EC law through its preliminary ruling powers. As seen earlier, apart from ECA, COMESA and WAEMU, no other REC Treaty has such a provision. Suffice to say, though, that even in the cases of ECA, COMESA and WAEMU, where the courts were granted preliminary ruling powers as the ECJ, the regional courts have been too defunct to make any notable difference. Hence, these courts are not known as key institutions that have enabled the fulfilment of the goals of the RECs as was the case with the ECJ and its role in enhancing the EC common market goals. C Effective Domestic Legal and Judicial Systems Closely linked to the aforementioned point is the need for effective domestic legal and judiciary systems. These systems should be characterised by effectively enforcing property and contract rights in a timely and fair manner. This is crucial as the domestic legal system would be the channel through which the policies of the regional treaties that have become law in Member States are enforced. If these legal and judicial systems are not up to speed, the overall implementation of the Treaties by Member States would be weak. It was for this same reason that legal and judicial reform was made an integral part of the accession process for Central and Eastern European States membership of the EU.52 52 See M. Maresceau, ‘The EU Pre-Accession Strategies: a Political and Legal Analysis’ in M. Maresceau and E. Lannon (eds), The EU’s Enlargement and Mediterranean Strategies: A Comparative Analysis (Palgrave Basingstoke, 2001), at 16. © 2011 Blackwell Publishing Ltd. 679 Volume 17 European Law Journal Unfortunately, the legal and judicial systems in most parts of Africa have a long history of poor enforcement of contract and property rights.53 There have thus been arguments around whether it is better to put in place adequate domestic legal and institutional infrastructure in Member States before they become a part of a regional integration arrangement or whether the two, which are building regional integration and undertaking legal and institutional reform, can take place at the same time.54 D Recognition of African Integration Law within the Legal Education Curriculum Close to the aforementioned point is the need for the recognition of African Integration Law within the legal education curriculum. As legal education in Africa has not yet recognised this as a subject area of law, it would mean that lawyers who would be representing people and states with respect to disputes over regional integration law, as well as judges who would be deciding these cases, might be very ill-equipped to do so. This is so as these lawyers and judges would be pooled from the legal and judicial systems in Africa that have made no provision for enhancing the judiciaries’ expertise in this field nor have they incorporated African integration law within formal legal education curriculum for upcoming lawyers and judges. What is essential is, first, the establishment of facilities including well-resourced libraries on integration law which should be equipped with information and communication technology. This would enable judges to keep up with the times and keep abreast of international developments in this area of law. Second, the development of African integration law within the curriculum of legal education in these African countries would be necessary for future legal professionals in these African states. E Member States According Supreme Status to REC Law The effectiveness of the legal and judiciary system as well as the existence of properly trained lawyers and judges would be inconsequential if no domestic law exists to accord the regional law a supreme status as has been the case with the EC. All the member States of the EC, whether dualist or monist have accorded EC law a supreme status. The same can not be said of African states whose chequered histories of military coups have frequently interrupted state governance through their characteristic suspension of state constitutions when they aggressively take over power. Even where stable civilian government exists, no clear supreme status is accorded African integration law within national law, hence the lack of recognition of such law by the national courts. The absence of a superior status for regional law within national law inevitably affects the overall success of the regional arrangement as it would be difficult for regional policies 53 54 Doing Business, Measuring Business Regulation: Explore Economies, available at http://www.doing business.org/economyrankings (accessed 11 November 2010). The World Bank survey conducted on 183 countries to assess the ease of doing business in these countries, ranked these Sub-Saharan African countries as the lowest and the most difficult places to do business. Part of the parameters used for the study included the effectiveness of the judiciary in enforcing contracts and protecting investors. I. Akinrinsola-Salami, Legal and Institutional Requirements for Monetary Union in West Africa (University of London PhD Thesis, 2006). 680 © 2011 Blackwell Publishing Ltd. September 2011 Economic Integration in Africa to be implemented into Member States, and if this hardly or never occurs, the regional arrangement is as good as obsolete. F Recognition of Superior Status of REC Law by All the Organs of the State and at All Levels of Government The recognition of the supremacy of regional law by all the organs of government (legislature, executives and judiciary) and at all levels of government in Member States would also greatly enhance the effectiveness of the REC treaties in Member States. Recognition by the legislature would ensure that no laws conflicting with regional laws are passed. Recognition by the executives and government departments would ensure that administrative processes necessary for the implementation of regional policies are in place and functioning. Thus, administrative bottlenecks, which can affect common market goals (including the free movement of goods, persons, capital and services), would be eliminated. Recognition by the judiciary, as assessed earlier, would ensure that the courts take account of regional law in their administration of justice and enforcement of the law. The same applies to recognition at all the levels of government. The recognition of the supremacy of regional law at all levels of government such as central, state and local governments, whether it is a unitary or federal system of government, would again ensure that regional policies are taken into account when decisions are made at any level of government. This would avoid the possible conflicts that can occur when, for example, central government policies are not filtered down to state and local governments. This, in the long run, would ensure that the overall regional policies are effectively implemented by Member States. V Conclusion The AEC aims to achieve by 2028, an African central bank and single currency in six stages. As the RECs are building blocks of the AU/AEC, they are pivotal to this process as according to the agenda, success of the RECs would ultimately determine the overall success of the AU/AEC agenda. However, it appears the AEC plan is lagging far behind schedule. By the calculation of the agenda, in 2011, the AEC plan should be at stage 3, which should be completed in 2017 with the establishment of a free trade area and a Customs Union at the level of each REC. This is, indeed, a far cry from what obtains at the moment, and the attainment of this in six years, based on the current pace of integration, is inconceivable. This is largely due to the deep legal and institutional challenges facing the RECs, which have resulted in their failure to achieve their own sub-regional integration objectives within the time frame set for them. REC Treaty articulation of the status of REC legal instruments in Member States and the strengthening of REC regional enforcement mechanisms, although are regional remedies that would go a long way in aiding the achievement of REC objectives, can not alone secure the achievement of these objectives. Other factors that would be critical to this would be for Member States to grant supreme status to REC provisions. Thus, the effectiveness of provisions granting preliminary ruling powers to the REC regional enforcement mechanism is dependent on the acceptance of the supremacy of REC provisions over Member State laws and procedures. This would require Member States’ law to grant supremacy to REC provisions, which is recognised by all the organs © 2011 Blackwell Publishing Ltd. 681 European Law Journal Volume 17 of government and at all levels of government in Member States. Without this, the RECs will not be able to achieve their long term objectives and the overall AU/AEC agenda to achieve a pan-African single currency and the central bank will only be as good as the paper it is written on. First submission: March 2011 Final draft accepted: May 2011 682 © 2011 Blackwell Publishing Ltd.