A Future Court without Cases? On the Question of Standing in the AfCFTA Dispute Settlement Mechanism

One would be justified in thinking that AU member states have intentionally created a court which they consciously know they would hardly use given the inertia identified above. If the reforms that would extend standing to private parties are not undertaken, there is little guarantee that Member States will suddenly change their habits. Assuming for once that they trigger the mechanism, it is also very likely that, consistent with their practice for political solutions to legal problems, they would not proceed beyond the consultation and good offices stages provided in Articles 7 and 8 of the Dispute Settlement Protocol.

The Treaty Establishing the African Economic Community and the Agreement establishing the African Continental Free Trade Area: Some Relational Aspects and Concerns

While the establishment of a free trade area is categorically provided for as one of precursor stages to the AEC, it is appears to have been envisioned as being established primarily at the regional level (article 2 (d)), and not necessarily at the continental level. This was very much in line with the strategy to build the AEC through the RECs. The AEC Treaty did not get into the modalities of the establishment of the prospective free trade area, neither did it mention a further protocol in that regard. Whether this omission was deliberate, is subject to speculation, but perhaps it may have been based on the belief that RECs would be the drivers of free trade areas as opposed to a focused continental framework or mechanism.

REVIEW V of Regional Developmentalism through Law: Establishing an African Economic Community, Jonathan Bashi Rudahindwa, Routledge, 2018

A proper assessment of Rudahindwa’s monograph on the subject of establishing the African Economic Community (AEC) is one that cannot exclude the currents of ongoing reform efforts and the extent to which they are able to move the continent faster towards the dream of achieving the AEC. This invariably raises some methodological questions that border on multidisciplinary approach to regionalism, and the issue of context. The author highlights these two imperatives in the monograph. By using the concept of “developmental regionalism” as an analytical prism, the author situates the discussion within a multidisciplinary paradigm.

REVIEW IV of Regional Developmentalism through Law: Establishing an African Economic Community, Jonathan Bashi Rudahindwa, Routledge, 2018

Jonathan Bashi Rudahindwa’s monograph on regionalism in Africa is a timely addition to the literature on the topic. His focus is primarily on the creation of the African Economic Community (AEC). Created by treaty in 1991 the AEC lays down a path for Africa to follow towards the creation of an African common market. This is to be done in stages culminating in an economic and monetary union.  The AEC thus seems to be a critical landmark in the evolution towards African economic unification.

REVIEW III of Regional Developmentalism through Law: Establishing an African Economic Community, Jonathan Bashi Rudahindwa, Routledge, 2018

The book traces the evolution of regionalism and regional integration on the continent, from the Organization of African Unity through to the African Union but, unlike earlier treatises on regionalism, Bashi Rudahindwa rightly places emphasis on the role of the legal framework. He draws comparisons with other regional economic integration projects: the North American Free Trade Agreement (NAFTA), the Common Market of the Southern Cone (MERCOSUR), the Association of South East Asian Nations (ASEAN), and the European Union (EU), to argue for greater emphasis in the AU on capacity building, and the need to utilize law to support regulatory and institutional frameworks to facilitate trade and industrialization, and interventionist measures aimed at promoting structural transformation.

REVIEW II of Regional Developmentalism Through Law: Establishing an African Economic Community, Jonathan Bashi Rudahindwa, Routledge, 2018.

The hallmark of Jonathan Bashi’s masterful analysis of the uniquely multifarious and variegated processes which set Africa apart from all other regional integration theatres (the Americas, Europe, Southeast Asia) is its lucidity. His organising concept of ‘regional developmentalism through law’ as distinct from regionalism per se or regional economic integration is a genial critical and discursive move.  It effectively critiques and corrects the concealed neoliberalism of integrationist discourse by 1) restoring the means-end relationship of regionalism to development, and 2) foregrounding the centrality and polyvalence of law as mechanism. For Bashi, the role of rules is not to serve markets, but to fashion, construct, and condition them.

REVIEW I of Regional Developmentalism through International Law – Establishing an African Economic Community, Jonathan Bashi Rudahindwa, Routledge, 2018

Rudahindwa’s contribution lies in his articulation of the need for institutions and legal frameworks to reflect these multiple objectives of African RECs. In this regard, he ably demonstrates how the specific objectives of NAFTA, ASEAN, MERCOSUR and the EU have informed the nature of the institutions that manage their respective organisations and their legal frameworks, including how they address issues such as the relationship between the laws of the organisations and their member states, the bindingness of agreed commitments and laws, and dispute settlement.

Why AfCFTA may not be a credible forerunner of single African market

The first seeming obstacle to the emergence of a single African market is the contradictions between the stated aims of AfCFTA and some of the principles set out in the AfCFTA Agreement. As noted earlier, AfCFTA’s objectives include creating “a single market” and laying “the foundations for the establishment of a Continental Customs Union”. Yet, one of the principles under Article 5 is “variable geometry”, that is, differentiated integration. Of course, variable geometry was designed to recognise the heterogeneity and diversity in Africa’s economies. However, a single market is not consistent with an a la carte approach, where members integrate at different speeds.