THE QUEST TOWARDS THE HARMONISATION OF TRADE LAWS IN AFRICA: HOW PREPARE ARE WE FOR THE AFRICA SINGLE MARKET?
Harmonization of the trade laws in Africa has become a necessary evil following the establishment of the African Trade Continental Free Area (AfTCA), a giant step taken towards the actualization of the African Economic Community under the Abuja Treaty, 1991. However, this African Economic Community which is the embodiment of the single or common Africa market sought to be achieved by 2063 would only be a reality if good and sound measures are put into places by the relevant authorities. One of the measures called herein is the conscious effort to harmonize the trade or commercial laws in Africa beginning with some essential areas of commerce. Though, it can nonetheless be considered that harmonization is not a condition for the realisation of a common market as sought to be achieved by AfTCA. It’s role in ensuring the efficiency and effectiveness of a single market cannot be displaced. Thus, it was observed by the European Cout of Justice in the case of Commission c/Italy aff C-193/80 that “the fundamental principle of common market and its corollary, the free movement of goods, cannot be overridden by the precondition of reconciliation of national laws, but it is clear that reconciliation measures support existing freedom of movement and prevent the emergence of state measures that could jeopardise it.”
In this Article, I seek to explain the necessity and the concept of harmonization as well as some barriers to its realization.
Beginning with essential areas of trade
INTRODUCTION
Harmonization of trade law is a trending subject among European Union and the francophone African countries . Trending as it is in those other part of the world, it is still a novel subject and fertile area of research yet to be exploited by the African common law countries. The reluctance in delving into this area of law among the African common law countries is partially liaised to the inherent nature of common legal system. Traditionally, the area of commercial law has been largely dominated by common law principles, in other words judge-made law. These judicial decisions are scattered across case laws books or law reports, some dating back to centuries ago. Formerly, common law lawyers usually spent significant amount of time at the library scrutinizing law reports in search of relevant commercial cases. But in recent times, efforts have been made to codify and clarify these commercial principles through legislation and textbook writings. Even where the cases had been found, there were other inundated task in deciphering the principle or what is termed as ratio decidendi from the long speeches of the judges sometimes coupled with complicated facts. This laborious search for authorities still goes on today among most African common law countries because their legislators have not been able to codify most of the commercial principles.
Contrary to common law, civil contiental legal system has commercial principles or law enshrined in Codes, constituting of concepts which are rather comprehensive and exclusive of prior law within their field . Thus, avoiding the principle of stare decisis which makes decision of courts binding. With that natural habit to codify their laws, harmonization of commercial law is readily receptive to the civil legal system than that of the common law.
Organisation for the Harmonization in Africa of Business Law
Roy Goode, The Codification of Commercial Law, 14 Monash U. L. Rev. 135 (1988)
Be that as it may, the globalization trend in modern world today encourages countries to develop common measures and laws to facilitate intra-transactional trades as well as ensure its predictability, transparency, certainty and security for business transactions.
Before I further explore the concept of harmonization of trade law and its advantages, we need first to understand its historical context in the Africa settling. The historical context of harmonization of trade law emerges from the seed of Pan-Africanism which was sworn into the continent more than 100 years ago. Ever since then, the main agenda on the table of the African leaders has been to devise means to foster the unification of Africans for both its prosperity and liberation from external forces. From the early 1950s to latter part of 1990s, political independence was seen as the first major step to hand down this ambitious quest for total liberation and prosperity. About thirty-three (33) years down the line since the last African state liberated itself from colonial rule, next on the list of the agenda has been how to ensure the economic independence of Africans. But the strategic plan to realize this economic objective has not been straightforward, practical and politically committed as compared to the political objective. With a scratchy start in fulfilling the said goal inundated by disagreement in political and economic ideologies, the African states were torn between federation of African states like United State of America (continentalism) or regionalism (regional integration) like the European Union as a conduit for realizing the economic objective set forth. By 1963, regionalism has won the day culminated into the formation of Organization of African Unity (OAU) now Africa Union (AU). From thereon, with the ball set rolling, the crucial developing issue was the measures to put in place to breathe life into the concept of regional integration. So, in 1980 an OAU summit was held at Lagos wherein the African leaders developed strategic plan of action to realize the economic integration objective namely; The Lagos Plan of Action and Final Act of Lagos of April 1980 . Following this plan, led to another OAU summit in Abuja, Nigeria in 1991 where the heads.
Edward Wilmot Blyden (1832-1912) is considered to be the father of the modern pan-Africanist movement and the initiator of both the Back to Africa drive and Negritude.
Last country on the record to have gained independence was Namibia in 1990
Lead by the Casablanca group on one hand and Monrovia on the other hand. For more detail on this read The African Union, legal and Institutional framework: a manual on the pan-African organisation, 2012: Chapter 1 Brief Historical Overview of Steps to African Unity.
This was after a majority vote on 25th May 1963 at Addis Ababa.
A city in Nigeria
Unified Business Laws for Africa: Common law perspective on Ohada by Mohammed Baba Idris .et.al
27th OAU summit
Written by: Lord Fiifi Sampson,
Accra-Ghana, 02/07/2022.
