Implementing community law in African states

Abstract

The effectiveness of economic integration depends largely on how it is received and implemented within member states. It is through implementation that the divide between the community and national legal systems is bridged. In economic integration, ‘the relationship between the rules that shall govern its activities and the domestic laws of the member states is quite crucial to its development’. Residents in a community and national institutions should be receptive to the objectives of economic integration – and prepared to champion them. Thus, a principal challenge in economic integration is ensuring the implementation of community law in member states. How economic integration and especially community law is received nationally depends on a number of factors, of which the legal infrastructure is just one. Legal infrastructure, which conditions how effectively community law is implemented in member states, includes constitutional laws, judicial philosophy and legal culture. With these elements, various mechanisms exist that render non-domestic laws – in this instance community law – enforceable or applicable within states. These mechanisms include national incorporation of international law, the use of foreign laws as aids to construction, the use of foreign laws as the applicable law under the rules of private international law, and taking judicial notice of foreign laws. The use of these mechanisms to implement community law aims to enhance the effectiveness of the economic integration process. They decentralize a community's law enforcement machinery and make it accessible to residents in the community. Administratively, these mechanisms reduce the burden on the institutions set up to monitor and seek remedy for violations of community law. The absence or under-utilization of these mechanisms to implement community law leads to a disjunction between community and member states and the alienation of individuals from the economic integration process. In general, it undermines a community's effectiveness.