Lost in Translation: The Role of African Regional Courts in Regional Integration in Africa

Abstract

African RTAs are flexible legal regimes. These agreements are not designed to commit their members to scrupulous and rigorous adherence; rather they have been designed as flexible regimes of cooperation. If enforcement is not intended (in reference to African RTAs) a scarcity of formal trade agreement disputes should be no surprise. The European Union (EU) and its Treaty on the Functioning of the European Union (TFEU) and its predecessors has been hailed as the yardstick for Regional Trade Agreements (RTAs). The provisions of the TFEU have served as templates for RTAs across the world. Among the most influential of these provisions are those on Dispute Settlement Mechanism (DSM), centred on the Court of Justice of the European Union (CJEU).The CJEU has played a major role in the integration process of the EU through its proclamations of principles such as direct effect and the supremacy of community law. All the African RTAs have provided for DSMs and Regional Courts in their treaties that emulate the EU rule-based DSM and its CJEU. This paper appraises the paradox of the leading role played by the CJEU in European integration and yet its clones, amongst them the African Regional Courts, have failed to play a similar role in African regional integration. Taking the TFEU and the EU Court of Justice as benchmarks, the paper examines African RTAs' treaty provisions on DSM and African Regional Courts with their jurisprudence and evaluates their impact in regional integration in Africa. The paper finds that African RTAs' treaty provisions on implementation of integration, particularly those on sanctions for infringements, are weak and the impact of the African Regional Courts in the integration process is minimal.