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.
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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).
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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
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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
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