21st Century International Foundations for a 21st Century African Continent

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Photo courtesy of NASA.

In recent decades, the emergence and development of international law has taken various shapes within the African continent. Most notably, states have begun reconstructing their legal regimes using regional organizations, aiming to create supranational entities that better represent their collective interests and aspirations globally. Amongst the numerous groups, no regional organization has been more successful than the Organization for the Harmonization of Business Law in Africa (“OHADA” – derived from the French translation). Embodying 17 member states, OHADA not only contributes to the making of international law within Africa, but plays a valuable role in its ongoing fruition. OHADA’s value can be showcased by its systematic effectiveness and singularity. Furthermore, OHADA’s legal achievements create pertinent opportunities in a region vying for a path forward.

Firstly, OHADA’s framework maintains a distinct legal structure built on efficacy. Ever since its founding in 1993, OHADA focused solely on the field of business law and harmonizing such laws across mostly Francophone countries in western and central Africa. The 1993 Treaty split the organization into four bodies, with the Council of Ministers and Common Court of Justice and Arbitration (“CCJA”) being most significant. The former consists of Justice and Finance ministers of each member state who are charged with crafting Uniform Acts applicable to all members; the latter reserves the final say adjudicating on OHADA legal matters. The structure is unique amongst most African regional organizations because of how much power is delegated to OHADA’s institutions. Member states’ national legislatures have no input in the law-making process. Instead, states must abide automatically to each of the Uniform Acts following their promulgation. Likewise, the CCJA serves as the most active regional court in the continent. It is an appeals court of last resort for individuals and interpretative questions of the law, wielding the power to render decisions that override member states’ national courts.

The OHADA law has its roots in French civil law. Because of their common colonial history, most member states can easily adopt the uniform regulations. Development of the Uniform Acts has been vast. Areas enshrined include insolvency, securities, corporate governance, arbitration, debt recovery and enforcement, to name just a few. New forms of corporate entities have been introduced, such as Société par Actions Simplifiée (“SAS”) which creates wide-ranging structuring possibilities around governance. These robust efforts have reinforced the legal edifice which has been impaired in many member states’ municipal regimes. Still, OHADA is open to all African Union members and is looking to expand its outreach throughout the continent, including to states of a common-law past. Hence, legal regimes of diverse upbringings are needed to accommodate the continent in its entirety. Strides in this direction have been made already with the Uniform Act on Contracts. The law was modelled off the International Institute for the Unification of Private Law’s principles which blend together legal approaches of the international community. Veering from traditional French law has allowed OHADA to reflect a broader perspective and move closer to establishing its own legal conception, analogous to the European Union’s acquis communautaire. The arrangement instituted thus far has introduced and sustained a formidable international framework, whereby an effective authority and uniformity have permeated exponentially through almost a third of the continent.

Secondly, OHADA’s value to international law goes beyond the legal machinery on display; its contributable value is thematic, as demonstrated by OHADA’s aptness for a region wavering on weak foundations. Africa, generally, has been a risk for investors given its prevalent legal fragility. Yet, it is a continent rich with possibilities. Within a relatively short period, OHADA has grown to fill Africa’s inhibiting void. It has bloomed with the adoption of 10 Uniform Acts and is engaging in processes to fulfil additional untouched areas of law, like labor, competition, and intellectual property. Better than any state, OHADA has provided legal certainty using international law – its main objective. This certainty is attributable to the Uniform Acts being comprehensive in scope, precise in applicability, and coherent in interpretation. It is these features which were absent in African states nationally and are now prominent for investors to utilize favorably. For example, the implementation of the securities law as one of the Uniform Acts helped encourage Chinese banks to pursue commercial lending into Africa because of revitalised investor confidence; securities were being “granted, registered, filed, managed and enforced” by national financial institutions. Moreover, OHADA’s entry is a boon for the populace of states hindered by an ineffective rule of law. OHADA reveals that regional organizations and their rules are imperative to the conversation of legal development. Essentially, a top-down approach can consolidate stability and hone the law within Africa for posterity. International law has been greatly enhanced due to OHADA’s implementation and will continue to be as it advances its purpose.

In conclusion, OHADA has exemplified its value to the progression of international law in two important fashions. Firstly, the organization has broached international law to the African continent in a manner that is directly applicable to member states, and thus effective in exercise. OHADA has provided a successful reference point for developing international law in Africa. Secondly, OHADA has reasserted the thematic importance of international law, especially within a continent lacking sufficient guidance. International law can be a means to circumvent local deficiencies and represent a capable uniformity. OHADA’s work is far from complete and only the continued realization of its endeavors will further cement international law’s stature regionally and, ultimately, globally.

 

Michael Malvenda is a fourth year Law and International Relations (LLB Hons) undergraduate at the University of Edinburgh. Presently, his academic research centers around international and comparative law, using those lenses to explore specific issues of private law, technology and commerce, jurisprudence, and constitutional matters.