Institutional Challenges

Strong institutional infrastructure at national and regional level and between national and regional institutions is essential for regional integration.²⁶⁰ National and sub-regional capacities influence the success of regional integration. By implication, weak national institutions may seriously hamper effective cooperation and integration in Africa.²⁶¹ Research argues that only 32% of African countries have a dedicated regional integration ministry: the rest lack a central point in the government that specifically coordinates sub-regional economic activities.²⁶² Coordination would save time and human resources. Such coordination difficulties are likely to hinder integration efforts in Africa.

Some of the problems experienced by regional institutions in Africa relate to lack of funding as governments sometimes fail to meet their financial obligations. The AU needs sufficient funding for institution building and to support its programmes. It is suggested that the AU may obtain some funds if the sub-regional institutions are dismantled and reorganised as there is a lot of duplication of activities. The dismantling could provide some funds needed

257 McDonald Regional integration in Africa: The case of ECOWAS PhD thesis 161.

258 Geda & Kebret (2008) 17 (3) Journal of African Economies 363.

259 UNECA Assessing regional integration IV: Enhancing intra-African trade (2010)12.

260 Oluwu (2003) 13 Transnat’l L. & Contemp Probs 231.

261 UNECA Assessing regional integration in Africa II xviii-xix. It is noteworthy that problems relating to institutions include the fact that the legal framework for Africa’s integration is viewed as ambiguous and imprecise. Continental blueprints do not match the reality on the ground. Regional economic communities have independently pursued their integration agendas, and their treaties appear to take precedence over continental blueprints. No hard and fast rules bind the regional economic communities’ integration agendas to the continent wide frameworks.

262 The reasons for failing to establish a dedicated ministry include the diversity that exists in policies and the fact that some believe that the existing mechanism which involves other ministries acting as focal points on regional integration are satisfactory: UNECA Assessing regional integration IV: Enhancing intra-African trade 12.

by the AU as multiple regional institutions result in duplication of resources. Regional economic communities may also need to come up with a self-financing plan that is separate from national budgets. A levy could be imposed on imports from third countries.²⁶³

Regional institutions are sometime sometimes affected by political appointments or the poor rate of employment of professional staff, resulting in the regional institutions having less qualified officials.²⁶⁴ Deeper regional integration requires a proper and effective functioning of regional institutions.²⁶⁵

2.5.6.1 Sovereignty

The reluctance by countries to cede power to regional organisations as well the failure to implement decisions taken during meetings negatively affect the functioning of supranational organs. Most institutions in Africa currently serve as forums for cooperation rather than decision-making bodies whose policies supersede those of Member States.²⁶⁶ African countries have demonstrated a reluctance to empower regional institutions. This is because the institutions are sometimes perceived as ‘politicised’, a case in point being the SADC Tribunal,²⁶⁷ a sub-regional organisation which was suspended following its two judgments on Zimbabwean cases dealing with land disputes and human rights abuses.²⁶⁸ The decision to suspend the tribunal was triggered by the Zimbabwe government’s refusal to abide by the Campbell ruling following the Tribunal’s finding that the expropriation of farms without

263 Some regional economic communities are said to have implemented a plan that imposes a levy on imports from third countries, which has proved sustainable this far: UNECA Assessing regional integration II 130.

264 Low salaries may explain the poor rate of employment of professional staff since it is cited that 40% of the professional staff earns more than $20,000 a year, and another 40% earns $10,000–$20,000. See UNECA Assessing regional integration II: Rationalising Regional Economic Communities EAC Policy Research Report (2006) xviii. Also available at http://new.uneca.org/Portals/aria/aria2/chap6.pdf (accessed 15 February 2012.

265 Kritzinger-van Niekerk & Moreira ‘Regional Integration in Southern Africa: Overview of recent developments’ Discussion Paper Regional Integration and Cooperation Africa Region The World Bank (2002) xviii, hereafter Kritzinger-van Niekerk & Moreira ‘Regional Integration in Southern Africa:

Overview of recent developments’.

266 Patrick ‘Crisis in the Europe: An overview’ in Patrick (ed) Crisis in the Eurozone: Transatlantic Perspectives (2010) 3.

267 The SADC Tribunal was established by the 1992 SADC Treaty for the purpose of hearing cases between citizens and their governments and to settle disputes between countries. SADC is made up of 15 Member States.

268 Naidoo ‘SADC Tribunal-Calls for reinstatement–Region in legal limbo’ (2/02/2012) available at

http://www.fm.co.za/Article.aspx?id=163935 (accessed 6/02/2012). See also Tralac ‘What has happened to the protection of rights in SADC?’ available at http://www.tralac.org/2012/01/18/what-has-happened-to-the-protection-of-rights-in-sadc/ (accessed 3 February 2012).

adequate compensation was in violation of SADC protocols.²⁶⁹ The meeting of SADC Heads of State confirmed the suspension in May 2011 after the leaders agreed to review the role, functions and terms of reference of the Tribunal.²⁷⁰

The idea of reviewing the role and the functioning of the tribunal clearly shows how an effective institution can be made dysfunctional, despite the fact that the tribunal had a vital role to play with regard to SADC’s goal to become an economic bloc and a powerhouse of regional trade.²⁷¹ The suspension of the tribunal shows the extent to which African leaders desire regional institutions to remain weak and to merely serve administrative functions. It also shows how African political leaders want to hold on to sovereignty and to exploit it for their own interests. The experience in Africa indicates that countries are hesitant to create supra-national bodies and to transfer power to them as a sanctioning authority²⁷² and this hampers regional integration efforts.

For regional integration to succeed in Africa, regional law needs to enjoy supremacy over domestic laws and the decisions made by regional institutions must be binding and enforceable in all Member States.²⁷³ More importantly, there must be an adequate enforcement mechanism.²⁷⁴ The reason why the SADC Tribunal’s decisions against the Government of Zimbabwe were not implemented was as a result of lack of an enforcement mechanism. The High Court of Zimbabwe refused to register and to enforce the SADC

269 The cases are Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe [2008] SADC Tribunal 2 , available at http://www.saflii.org/sa/cases/SADCT/2008/2.html (accessed 27 June 2012) and Barry Gondo &

8 others v The Republic of Zimbabwe [2008] SADC Tribunal 5. See also Afadameh-Adeyemi ‘Barry Gondo

& 8 others v The Republic of Zimbabwe SADC (T) 05/2008’ (2011) SADC Law Journal 11, hereafter Afadameh-Adeyemi 2011) SADC Law Journal.

270 Hawkey ‘SADC Tribunal decision a blow for justice’ Derebus (2012) available at http://www.saflii.org/za/journals/DEREBUS/2012/24.pdf (accessed 3 February 2013).

271 Hawkey ‘SADC Tribunal decision a blow for justice’ Derebus (2012) available at http://www.saflii.org/za/journals/DEREBUS/2012/24.pdf. (accessed 3 February 2013).

272 Geda & Kebret (2008) 17 Journal of African Economies 358 and Erasmus (2011)1 SADC Law Journal 21.

273 The Government of Zimbabwe’s refusal to be bound by the Tribunal’s decisions was based on section16b of the Constitution in terms of which Zimbabwe is required to ratify or domestic the law for it to apply.

Amendment 17 ousts the jurisdiction of Zimbabwe’s law courts from any matter connected to the acquisition of land and the Government of Zimbabwe was relying on this municipal or domestic law. It should be noted that what the Government of Zimbabwe did by relying on the above provision was contrary to Art 6(5) of the SADC Treaty which states that ‘Member States must take all necessary steps to accord this Treaty the force of national law.’ Zimbabwe’s argument that it had not ratified the law and the withdrawal from the Tribunal Protocol shows the tendency of giving primacy to national law instead of regional law-: Scholtz ‘Review of the role, functions and terms of reference of the SADC Tribunal’ (2011) 1 SADC Law Journal 199, hereafter Scholtz (2011) 1 SADC Law Journal 199.

274 Ndlovu ‘Campbell v Republic of Zimbabwe: A moment of truth for the SADC Tribunal’ (2011) 1 SADC Law Journal 74, hereafter Ndlovu (2011) 1 SADC Law Journal.

Tribunal decision in terms of Article 32.²⁷⁵ The SADC Tribunal decisions had to be registered in South Africa in terms of Article 33(2) which empowers members of the SADC Community to take measures necessary to ensure execution of the decisions of the Tribunal.²⁷⁶ The Government of Zimbabwe, however, still did not comply with the Tribunal’s decisions. The Tribunal had to therefore, report its finding of non-compliance to the SADC Summit ‘to take appropriate action’.²⁷⁷ This is in line with the Article 33 of the SADC Treaty which states that sanctions may be imposed against any member that, without good reason, persistently fails to fulfil its Treaty obligations or implements policies that undermine the trade bloc’s principles and objectives.²⁷⁸ Article 33(2) of the Treaty provides that the sanctions shall be determined by the Summit on a case-by-case basis. It is submitted that the failure to give guidance in the possible sanctions that the Summit can impose is a lacuna in the law.

The supreme policy making body of the SADC Summit consists of Heads of State or Government of all Member States.²⁷⁹ The decisions of the Summit are made by consensus and are binding.²⁸⁰ Unfortunately, the consensual nature of the decision-making process of the Summit can be an impediment to the imposition of punitive measures or sanctions.²⁸¹ It is not conceivable that consensus can be reached as this implies that the State against which the sanction is to be imposed should also agree to the sanction. No penalty has been imposed on the Government of Zimbabwe for non-compliance. In my view even after withdrawing from the Tribunal, the Summit should still have imposed a penalty on the basis that the Government of Zimbabwe had been found guilty of violating human rights. Article 27 of the

275 Article 32 of the Protocol on Tribunal and Rules of Procedure (SADC Tribunal) provides that ‘The law and civil procedure for the registration and enforcement of foreign judgments in force in the territory of State in which the judgment is to be enforced shall govern the enforcement’ available at

http://www.iss.co.za/AF/RegOrg/unity_to_union/pdfs/sadc/6Protocol_on_Tribunal.pdf (accessed 27 June 2012).

276 The North Gauteng High Court of South Africa was approached to register the decisions of the SADC Tribunal of 28 November 2008 and 5 June 2009 in terms of Article 32(2): Scholtz (2011) 1 SADC Law Journal 199.

277 Article 32 (5) of the Protocol on Tribunal and Rules of Procedure (SADC Tribunal) available at

http://www.iss.co.za/AF/RegOrg/unity_to_union/pdfs/sadc/6Protocol_on_Tribunal.pdf (accessed 27 June 2012). Appropriate action implies that the Summit is expected to impose the appropriate penalty to the Member State that has failed to comply with the decision of the Tribunal. The Protocol does not however, specify the appropriate action that the Summit may take in the circumstances. The failure to impose a penalty on the Government of Zimbabwe could be due to the uncertainty brought by the above provision.

278 Article 33 of the Declaration and Treaty of SADC available at

http//www.sadc.int/index/browse/page/119#article3 (accessed 27 June 2012).

279 Article 10 of the Declaration and Treaty of SADC available at

http://www.sadc.int/index/browse/page/119#article3 (accessed 27 June 2012).

280 Article 10 of the Declaration and Treaty of SADC available at

http://www.sadc.int/index/browse/page/119#article3 (accessed 27 June 2012).

281 Scholtz (2011) 1 SADC Law Journal 200 and Ndlovu (2011) SADC Law Journal 76.

Vienna Convention on the Law of Treaties which deals with the interpretation of treaties provides that a State may not invoke the provisions of its internal law as justification for its failure to perform a treaty.²⁸² This implies that compliance with domestic law is not a sufficient defence for failing to discharge the responsibilities of a State under an international treaty.²⁸³ It is argued that the Government of Zimbabwe did not act in good faith by withdrawing from the Tribunal after failing to perform accordingly in terms of the SADC Treaty.²⁸⁴ The Summit should have still imposed a penalty.²⁸⁵

The Zimbabwe case indicates the complex nature of the relationship between national and regional law as well as the relationship between a domestic court and regional institution such as SADC Tribunal.²⁸⁶ States are generally bound by national law and the Constitution of each State determines the role of international (including regional) law in that State. Where a State becomes a member of a regional institution, its national law must be compatible with regional law.²⁸⁷ Whether regional law finds direct application or applies in each State through an enactment; it should take precedence over national law. The decision of a regional institution such as SADC Tribunal should also supersede the decision of a domestic court. It is, however, crucial for the relationship between national and community law to be clear.

National legal instruments should clarify the position of regional law to ensure consistency and uniformity in the legal status of regional law. National courts should also give effect to regional rules by guaranteeing enforcement of the decisions made.²⁸⁸

The suspension of the SADC Tribunal following Zimbabwe’s non-compliance with its decision suggests that SADC Member States are not fully committed to regional

282 Vienna Convention on the Law of Treaties 1969 available

http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf (accessed 27 June 2012).

283 Ndlovu (2011) 1 SADC Law Journal 71.

284 Articles 4 (c) and 6 (1) of the SADC Treaty created an obligation on Member States to respect, protect and promote human rights, democracy and the rule of law. The Tribunal as a result held that the right to an effective remedy was a fundamental right entrenched in the concept of rule of law and a State is obliged to provide effective remedies. The Government of Zimbabwe thus failed to uphold the rule of law and it had violated human rights principles which were clearly spelt out in the SADC Treaty. It was also pointed out that Art 2(3) of the International Covenant on Civil and Political Rights (ICCPR), read in conjunction with its Article 5, prohibited any legislation or conduct which might render remedies ineffective or that might obstruct the implementation of judicial remedies, or provide state immunity from the enforcement of court orders: Afadameh-Adeyemi (2011) SADC Law Journal 11 also available

http://www.saflii.org/na/journals/SADCLJ/2011/11.html (accessed 27 June 2012).

285 Article 26 of the Vienna Convention on the Law of Treaties requires States to perform their duties arising from a treaty in good faith.

286 Erasmus (2011) 1 SADC Law Journal 21.

287 Afadameh-Adeyemi (2011) SADC Law Journal 11.

288 One would have expected SADC Member States to affirm the Tribunal decision by calling for the

enforcement of the decision against Zimbabwe: Ndlovu (2011) 1 SADC Law Journal 78. See also Erasmus (2011) 1 SADC Law Journal 21.

integration.²⁸⁹ It illustrates the challenge to regional integration that arises from some African countries continuing to hold on to sovereignty. By suspending the Tribunal, SADC lost an opportunity to educate and impress upon its Member States the need to respect and adhere to regional instruments which they have acceded to, and to surrender part of their sovereignty to the regional institution.

It is questionable whether SADC is a good example of a regional institution that has a clear vision, capacity and institutional infrastructure to advance regional integration.²⁹⁰ Institutional framework as it can ultimately either drive or stall integration.²⁹¹ Regional institutions must have the power to enforce regional law that is why supranationalism is important. Although Member States voluntarily sign regional agreements establishing supranational organisations, there still appears to be an unwillingness to respect the applicable legal instruments, let alone, to comply with obligations, and to provide for effective domestic measures to implement the relevant rules and rulings on the part of Member States. There are arguments that the evolution of the institutional architecture for regional integration is not clearly visible.²⁹² It is reasonably certain that the region is not likely to evolve towards a unified institutional arrangement but will slowly seek to strengthen the existing arrangements, while developing stronger cooperative links.