Analysis

The Analysis Section of Afronomicslaw.org publishes two types of content on issues of international economic law and public international law, and related subject matter, relating to Africa and the Global South. First, individual blog submissions which readers are encouraged to submit for consideration. Second, feature symposia, on discrete themes and book reviews that fall within the scope of the subject matter focus of Afronomicslaw.org. 

Book Review III: The Investment Treaty Regime and Public Interest Regulation in Africa By Dominic Npoanlari Dagbanja

With the recent decision by the African Heads of States to adopt the Protocol on Investment to the Agreement Establishing the African Continental Free Trade Area, Dr Dominic Dagbanja’s monograph on The Investment Treaty Regime and Public interest in Africa is a welcome addition to the growing list of monographs on Africa’s foreign investment law regimes. This book which is a based on Dr Dagbanja’s 2015 doctoral dissertation provides an original contribution to existing literature by focusing on the constitutionality of investment treaties. It deals with themes and issues which are critical for understanding Africa’s complex foreign investment protection and promotion laws. Although scholars have examined the linkages between constitutional law and international investment law notably using case studies from Europe and Latin America, this is the first monograph to focus on this issue from an African perspective.

Supremacy Battle between the Supreme Court of Kenya and the East African Court of Justice: A Reply to Dr. Harrison Mbori

I immensely enjoyed reading Dr. Mbori’s piece in Afronomicslaw titled ‘Hidden in Plain Sight: Kenyan Supreme Court Shooting is own Foot on Merits Review and Appellate Jurisdiction in Continuing Supremacy Battle with the East Africa Court of Justice (EACJ). I now have the pleasure of partially disagreeing with him particularly on whether the EACJ has (merit) review jurisdiction over national laws. This comment is not an attempt at exhaustively analysing the Supreme Court Advisory Opinion in Reference No. E001 of 2022. I found that Advisory Opinion to be surface-level, a bit incoherent and internally inconsistent, and devoid of adequate reasoning. As such, I refrain from commenting on other key issues in the Advisory Opinion. Some of those issues are: how the Court determined that it has jurisdiction to issue the opinion; the relationship between international and municipal law; the Court’s repeated failure to distinguish sources of international law and their interaction with municipal law; the court’s (misplaced) discussion on subsidiarity and margin of appreciation, and the apportionment of interpretation and application functions between the EACJ and domestic courts. Rather, my comment is restricted to the question of whether the EACJ has (merit) review jurisdiction over national laws, which the Supreme Court answered in the negative and which Dr. Mbori answers in the affirmative. I partially disagree with both the Supreme Court and Dr. Mbori, but for different albeit related reasons.

Book Review II: The Investment Treaty Regime and Public Interest Regulation in Africa By Dominic Npoanlari Dagbanja

In the early days of investment treaty awards, twenty or so years ago, it was obvious something was badly amiss. With virtually no legal analysis, the Metalclad tribunal found an indirect expropriation against Mexico based on the government’s refusal to authorize a landfill in a historically polluted area. A few years later, foreign asset owners busily sued Argentina for the country’s emergency measures, adopted in the face of a national economic crisis; the arbitrators were unsympathetic to the Argentine lawyers’ argument that it was ‘necessary’ for the country’s government to override the stipulated water rates in contracts with irresponsibly privatized utilities so households could afford drinking and bathing during the crisis and recovery. In CME, a case against the Czech Republic, the tribunal awarded hundreds of millions to a U.S. mogul after reasoning very erratically that the country had violated most of the cryptic investor protections in the invoked treaty. The dispute arose from Czech efforts to regulate broadcasting of cheap American re-runs on a major privatize TV station that was filling the airwaves with profitable muck. A sister tribunal in Lauder, bizarrely hearing a parallel claim by the human owner of the CME company, refused to award any compensation for the same dispute.

Hidden in plain sight: Kenyan Supreme Court Shooting its own Foot on Merits Review and Appellate Jurisdiction in Continuing Supremacy Battle with the East Africa Court of Justice (EACJ)

Three years ago, at the heart of the COVID-19 pandemic, I wrote an entry in this blog on the Martha Wangari Karua vs. Attorney General of the Republic of Kenya (Martha Karua case) in the East Africa Court of Justice (EACJ) First instance division titled: The EACJ First Instance Court Decides Martha Karua v Republic of Kenya: The Litmus Test for EACJ Jurisdiction and Supremacy. In that case, the First Instance division found that the Respondent State through the actions of its Judiciary (Supreme Court) had violated its commitment to the fundamental and operational principles of the EAC, specifically the principle of the rule of law guaranteed under Article 6(d) and 7(2) of the EAC Treaty. The court had found that Martha Karua’s right to access justice was violated and it issued a historic award for general damages in the sum of $ 25,000 to the applicant at a simple interest rate of 6% per annum. Since then, I contend that there is a supremacy battle between Kenya’s apex municipal court and the EACJ in two specific arenas. The first was Kenya’s appeal of this decision in the EACJ Appellate division which categorically dismissed the appeal with costs to the Appellant in February of 2022. The second venue for this ongoing conflict is in the Supreme Court of Kenya where Kenya’s Attorney General filed a reference for an advisory opinion reference that many observers saw as the aftermath of the Martha Karua case. This is the long awaited advisory opinion judgement that was issued on 31 May 2024 and forms the basis of this piece.

Book Review Symposium Introduction: The Investment Treaty Regime and Public Interest Regulation in Africa

A fundamental premise of The Investment Treaty Regime and Public Interest Regulation in Africa is that national constitutions “are supreme in the hierarchy of legal norms within the domestic context, and governmental actions in Africa, including the making of investment treaties, are governed by these fundamental legal norms.” In this monograph, I addressed, then, the question of the limits that national constitutions and the right of African states to regulate in international law place on the authority of African states in their conclusion of international economic treaties such as investment treaties. I examined four different and fundamental areas of public interest: national judicial systems, the environment, human rights, and development. Based on a constitutional-general international law imperatives analysis, I developed the imperatives theory as a theoretical framework to explain the conflict of legal norms and interests through a critical analysis of the intersections of public law and policy and international investment treaties. The issue addressed by the imperatives theory is whether the fundamental human rights and corresponding obligations of African states towards citizens under African constitutions, international environmental treaties and international human rights treaties do place or should place, limitations on the competence of African states to conclude investment treaties the terms of which constrain the exercise of the states’ public interest regulatory authority.

Afronomicslaw Submission on the Kenya Finance Bill 2024

AFRONOMICSLAW SUBMISSION ON THE KENYA FINANCE BILL 2024 

This submission was primarily authored by Cynthia Nona Tamale, Senior Fellow, AfSDJN. 

For further information or queries, contact James Gathii, Co-Convenor of the AfSDJN, at jgathii@luc.edu 

About Us

A New Dawn for Fintech in Africa: Consideration for the Fintech Annex of the Protocol on Digital Trade

The inclusion of Fintech in the Protocol on Digital Trade and the requirement to develop the Fintech Annex represent a significant milestone for Fintech on the continent. Documents like the Fintech Annex take time to develop and are not revised as frequently as domestic frameworks. Therefore, it is crucial that stakeholders involved in negotiating the Fintech Annex strive to produce a document that will stand the test of time and facilitate measurable results. This piece has attempted to highlight some key considerations for developing the Fintech Annex. However, what has been covered is merely the tip of the iceberg. There are many other issues to consider. Experts and scholars in the field of Fintech are encouraged to urgently publish on this topic to support the efforts of the actual negotiators of the Fintech Annex.

Essentials of Trade Policy in Africa – The Repertoire

In the pecking order of cabinet ministries, Trade and Industry tends to come close to the bottom. What is more, is that Trade and Industry Ministries typically get allocations of less than 1 percent of national budgets. No wonder, then, that ecosystems don’t exist that would facilitate production and trade of high-value, transformative products with high impact in the broader economy. Yet, the rhetoric about export-led development is ceaseless. This is certainly the case in practically all African countries.

Symposium on IFFs: Third World Approach to Economic Globalisation and Digitalisation of the Economy: Assessing Current Initiatives for Combating Tax and Commercially Related Illicit Financial Flows from Africa

Globalisation and digitalisation of the economy has radicalised tax administration and commerce in Africa. While there is still significant room for growth, there has been a paradigm shift in Africa’s development policy landscape over the past three decades. Economic liberalisation measures aimed at opening up the continent to global market forces and attracting foreign direct investment have significantly replaced state intervention and public ownership in most African countries.1 There is a race amongst governments in the continent to optimise and harness the vast tax potential of both the digital economy and the emerging digital finance market involving trading in cryptocurrencies, Non-Fungible Tokens (“NFTs”), and other digital assets. They aim to embrace the regulatory complexities of both the digital economy and the emerging digital finance market with a view to making their countries fit for the digital age and to building a future-ready economy that works for the advancement of their people. However, the rise of globalisation and digitalisation of the economy, including the economic liberalisation that followed, has (amongst other factors) allowed tax and commercially related Illicit Financial Flows (“IFFs”) to thrive in Africa. IFFs from Africa are said to have assumed crisis proportions in recent times.3 Global Financial Integrity (2010) reportedly estimates IFFs from Africa between 1970 and 2008 alone at more than U$1 trillion, an amount that dwarfs the combined inflows of developmental assistance and foreign direct investments into the continent over the same period.4 Nigeria is also reported to have led other resource-rich African economies with this enormous outflow, put at US$217.7 billion, or 30.5% of the total IFFs from Africa within the relevant period.5 Africa is currently estimated to be losing more than US$50 billion to US$86.63 billion annually in IFFs.6