March 5, 2022
In The Emergent African Union Law: Conceptualization, Delimitation, and Application, the editors brought together an impressive list of scholars and practitioners from Africa and beyond. All the contributors converge to synthesize legal trends emerging from the African continent. Using the Constitutive Act of the African Union (AU) as a framework, the authors have presented academically rigorous and research-based chapters on various legal issues obtaining in Africa. The editors broadly define AU Law “as the body of treaties, resolutions, decisions, and declarations that have direct and indirect application to the Member States of the AU.” Inspired by the vaunted mantra of African solutions to African problems, the reason for examining this new legal order in-depth is to assess how best it can be used to address the perennial problems that African States face with collective or supranational solutions.
What is particularly fascinating is that the contributors have used different theoretical perspectives and methodologies to assess this evolving body of regional legal regime. No doubt, this pioneering 24-chapter book on the novel concept of AU Law is worth the effort and invaluable to academicians and policymakers alike. This view derives from the fact that the edited volume investigates the domestication of AU Law by African States, particularly in the areas of constitutional law, human rights, democratic governance, and economic law.
The book is conveniently divided into five parts. As the title rightly suggests, the first part, “Scoping African Union Law” lays down the framework of analysis. All the contributors of the three chapters contained in this section, namely, Michèle Olivier, Konstantinos D Magliveras, and Femi Amao, are on point. Nonetheless, considering the supremacy of the Charter of the United Nations and subsidiarity of the AU Constitutive Act, a discussion on the relationship between the former and the latter could have been worthwhile to set the stage and frame the debate in an international context. The authors should also have located the place of the AU Law in the context of Article 38 of the State of the International Court of Justice.
Part 2 deals with “Harmonization and Integration as Drivers of AU Law”. Although one could have loved to place this part between the current part four and part five, the discussion is novel and informative. All the four chapters in this section have a business focus. To be specific, the exploration by Kamala Dawar and George Lipimile on the development and harmonization of competition law and policy in Africa in the context of economic integration is profound. Same is the case with Pablo Iglesias-Rodríguez’s discussion on the contribution of AU Law to standing-setting of and global financial supervisory networks. Iyare Otabor-Olubor’s work is particularly insightful for those interested in harmonization of private business frameworks to execute and implement cross-border trade and business transactions. The proposal by Onyeka K Osuji and Oluwafikunayo D Taiwo for a continental arbitration institution is brilliant. Given the rise of infringements of intellectual property rights, Emmanuel Kolawole Oke is strategic to include a human rights dimension. Considering the impact of the decision of the African Commission of Human and Peoples’ Rights in Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) / Nigeria, a specific chapter on Business and Human Rights could have added value to this part. This is, however, tangentially discussed in chapter 18 in part 4.
Part 3 is titled “Addressing Civil and Political Challenges through African Union Law: Perspectives”. The section has deep and pertinent discussion. As well argued by Adaeze Okoye, the AU human rights regime should overcome the cultural entanglements to effectively protect human and people’s rights in Africa, especially gender related rights. Eki Yemisi Omorogbe took on a very timely topic: “The AU and Disputed Presidential Elections”. With the proliferation of coups d’états on the continent, Omorogbe should also have discussed their implications on security sector governance, especially civil-military relations. Chidebe Matthew Nwankwo’s discussion on human rights and statelessness is a topical issue as is the observation by Cristiano d'Orsi on countering terrorism in accordance with the law, including refugee law. Although there is voluminous commentary on the topic of Africa and the International Criminal Court (ICC), Ben Chigara is candid that the continent’s push- back on support to the global penal court is indicative of the fatigue of African states “being treated as mere objects of a legal system that requires only their compliance with its edicts, without ever recognizing their equality with other Member States under the law of nations” and calls for sanitizations of this demeaning attitude to achieve compliance and cooperation.
Part 4 contains progressive discussion under the theme “Addressing Socio-Economic Challenges through African Union Law: Perspectives.” Chisa Onyejekwe examines the development of AU Law on tax harmonization and regional integration to achieve sustainable social structures in Africa, which is one of the key progressive debates in the book. Robert Home postulates enhanced protection of property rights with a focus on ownership of land and natural resources, especially for the indigenous people in Africa.With the same trajectory, Rui Garrido and Aua Baldé suggest how the AU can help expand the scope of the right to education as a key to the development through the design and implementation of structural policies on education. Gino Naldi takes stock of the contribution of the rich African human rights jurisprudence to AU Law. Eghosa Ekhator closes this part by concluding that AU mechanisms on sustainable development will contribute to the development of common standards at the continental level, which enhances AU Law. However, this section does not discuss the retarded 2020 AU Vision of Silencing the Guns, especially lessons learnt on the legal measures needed to achieve sustainable peace and security in Africa.
Part 5 has a catalogue of perspectives on enforcing AU Law. Konstantinos D Magliveras focuses on the evolution and effectiveness of the AU’s sanctions regime as an enforcement measure. Michèle Olivier argues that effective protection of human rights “relies on the dual elements of international regulation and domestic enforcement” but is concerned with the claw back clauses and “the drafting style of AU treaties allowing for rights to be qualified by national law, provides a further difficulty within the enforcement regime.” Focusing on AU’s institutional capacity and enforcement, Ovo Imoedemhe argues that formal regulatory mechanisms are relatively easy to change than normative and cognitive or cultural institutions that shape social interactions and hopes that the emergent AU Law may contribute to such reforms. Regis Yann Simo advocates for the application of the doctrine of direct effect, which allows individuals to bring complaints directly before regional courts against contracting parties for treaty violations. Rhuks Ako discusses how the African Peace and Security Architecture (APSA) has contributed to the evolution and operationalization of norms in emergent AU Law and its enforcement. Of particular interest is the concluding chapter by Femi Amao and Michèle Olivier, where they look at the prospects of AU Law in light of the Kagame Report, which presents recommendations for AU reform. The recommendations provided in this chapter in particular, and the book in general, provide guard rails for African States to move from rhetoric to reality on the progressive domestication and implementation of AU Law.
It cannot be disputed that this book is comprehensive. Neither can it be denied that an edited volume of this depth and breadth cannot cover each and every topic of concern. It is for this reason this volume should be read as complementary to other books that have covered African contributions to the development of general principles of international law, particularly on refugees and internally displaced persons, the principle of uti possidetis, the principle of self-determination, the notion of responsibility to protect and the prohibition on unconstitutional change of government, among others. The book is timely and makes a unique contribution both in theory and practice, to jurisprudence on the continent and beyond.
* Dr Iuris (LL.D.), Extraordinary Professor of International Law, University of Pretoria; Executive Director, Centre for Strategic Studies, Malawi University of Science and Technology.