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By Iheukwumere Duru
ABSTRACT
The process of regional economic integration in Africa has been extremely slow. As a result, the level of intra-regional trade on the continent has been less than satisfactory.
Many analysts attribute this situation to a number of economic and political reasons, including infrastructural challenges, mono-cultural agro-based economies, governance
issues, and especially the perceived unwillingness of African political leaders to implement the treaties, protocols and other relevant instruments adopted within theframework of the Regional Economic Communities (RECs).
While these economic and political reasons cannot be disputed, it is worth recalling that the aforementioned instruments are legal instruments the implementation of which, at the national level, is the duty not only of the executive but also of the judiciary.
The former is called upon to perform the obligations arising from them, while the latter, as the judicial organ of States, has the duty to adjudicate over disputes relating to the infringement of individual rights as a result of non-compliance with those obligations. This paper focuses on the role of national courts and tribunals in the implementation of
community legal instruments at the national level, which is crucial for the advancement of the process of regional economic integration and the boosting of intra-regional trade.
INTRODUCTION
The establishment of a regional economic community undeniably presents challenges to lawyers in the member states. Not only must they know the workings, the rules of procedure, the structure, etc of the judicial organ set up within the context of the relevant treaty and which will have to operate side by side with national courts, but they also have to figure out how the rights conferred on individuals (natural and legal persons) by the community legal instruments can be effectively enforced, especially at the national level. This is all the more important as the effective exercise of those rights by nationals of the member states is one of the indispensable conditions for the achievement of the goals of the community. The purpose of this paper, therefore, is to provide basic information on the role of domestic courts and tribunals in the enforcement of community law at the national level.
It is based on the practices of the European Economic Community/European Union, and is aimed primarily at lawyers and other persons such as judges and economic operators in
African Regional Economic Communities. The need for such information cannot be over-emphasised, especially at a time when regional economic integration is being resolutely pursued on the African continent with a view to boosting intra-African trade. The 2016 Africa CEO FORUM which was held in Abidjan in March 2016 observed as follows:
The economic imperative for regional integration has never been clearer; Africa’s constellation of small fractured markets needs consolidation to help domestic industrial
champions, and to attract outside
African Economic Community in 1991, created regional economic blocs as stepping-stones to one united market. The milestones have already been identified – improving regional
infrastructure, free movement for goods and people … But despite this, intra-Africa trade struggles to break through the 15% mark 15 per cent is very low indeed compared to ‘50 per cent for Asia and 70 per cent for Europe’ (Lopes, C., 2016: Regional integration and monetary unions in Africa).
One of the major reasons for this situation seems to be the non-enforcement, at the national level, of the rules designed to facilitate integration within the RECs. Whereas in the
EEC/EU countries national courts and tribunals play a major role in the enforcement of Community provisions, this is not always the case in the African regional economic
blocks.
Thus legislative or administrative measures which breach community trade rules causing substantial financial loss to traders, or restrict, for instance, the right of establishment as defined in the founding treaties are most often not challenged at the national level. There is rather a tendency to resort to diplomatic negotiations to resolve such issues without the defaulting member state being required to pay compensations to individuals who may have suffered considerable financial loss as a direct consequence of such measures. Maybe by emulating the EEC/EU practices in terms of enforcement of community economic rules ensuring effective implementation of the legal instruments African countries can deepen regional economic integration and achieve a much higher degree of intra-African trade and investment.
In keeping with its purpose stated above, this paper will first of all analyse briefly why national judicial authorities are expected to be involved in the enforcement of community law. It will then present an overview of the EEC/EU practices in this regard, as well as some of the advantages of the EEC/EU model. Finally, it will argue by way of conclusion that the involvement of national courts and tribunals, protectors of individuals’ rights, is crucial to the growth and success of a regional economic community. The paper is intended to be a modest contribution to the efforts being made by various individuals and institutions to give a boost to the process of economic integration in the African Regional Economic Communities.
The author hopes that it will help to stimulate the interest of the reader in the subject matter encouraging them to further explore this very important and topical issue.
To be continued…