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The “implementation crisis” of continental and regional regulation in Africa

An article recently published on The East African deals with a particularly important topic, namely the low degree of ratification and implementation of Treaties, Recommendations and Decisions adopted by the African Union (AU). The article notes that most of regulatory policies, tools and frameworks adopted at continental level, after many years of adoption, still suffer from a poor level of implementation or domestication at national level, basically because of a lack of political will by the AU State members. The consequence is that a number of commitments and goals agreed at continental level get stuck in their operationalization phase. The African Continental Free Trade Area (AfCFTA) agreement - together with the African Charter on Human and Peoples' Rights - seems to be an exception, as it is close to universal ratification. But also in this case, the risk is high that after the initial enthusiasm in adopting such Agreement, governments can delay its operationalization by becoming cautious, due to a lack of buy-in by those that should benefit from such Agreement, or to doubts that it will penalise or sacrifice national interests. This is why events like the Africa Prosperity Dialogues, planned for the end of January in Accra, Ghana, are particularly critical to maintain a high degree of commitment to the AfCFTA by African Heads of States and Governments.

It is important to remember that  in January 2017, already the Kagame report talked about “a chronic failure” to implement the African Union decisions, resulting in what it defined an “implementation crisis” of continental regulation. More specifically, the report concluded that among the more than 1,500 resolutions adopted by the AU Assembly there was no way to determine how many of them were implemented at regional and national levels.

The conclusions of the Kagame report showed, already 5 years ago, that the AU lacks of enforcing mechanisms for ensuring the implementation of its Decisions, resolutions and recommendations. In fact, the only enforcement mechanisms that the AU Commission has at disposal concern uniquely the cases of delays or of failure by the AU member States to pay contributions, or of anti-constitutional change of governments. Moreover, in addition to the "implementation crisis" that characterises the continentally-adopted regulations, there is also a problem of "regulatory oversight", as there are no mechanisms for monitoring their effective application in African States.

These problems are also common to most of the regulations adopted by RECs, that in many cases are not implemented or face strong delays for their implementation by their member States. This happens because like the AU, also the African RECs have not put in place so far adequate enforcement mechanisms to ensure the implementation of such regulation. Although most of them have established Regional Courts of Justice responsible to oversee the implementation of these rules, the cases where a national State is condemned for the infringement or failure to implement a regional regulation are very rare. A case that can be mentioned is a recent decision of the EAC Court of Justice, adopted on 2 December 2022, that determined that the free trade agreement and the phytosanitary protocol negotiated by Kenya with the United States were in violation of Article 37(4)(b) of the EAC Customs Union Protocol. But even when such kind of decisions are adopted, there are no enforcement mechanisms that can ensure that the condemned State will ultimately comply with the decision, because in the end this will depend on the responsibility and willingness of the concerned country to comply with the judgement of the regional Court. To date, COMESA, ECOWAS and EAC have a Court of Justice, while SADC had one until 2010 (the SADC Tribunal), which was subsequently abolished through a unanimous decision of all the Member States.

The East African article also reports that the African Union Commission (AUC) is conducting a monitoring and evaluation exercise to determine the extent of the matter, what are affected treaties and the specific reasons for their lack of ratification. In this regard, an AU’s 10-year evaluation report, along with a draft strategy for the next 10 years are scheduled for tabling in February 2023. According to the AU, the number of Decisions and Treaties adopted on annual basis is 85 on average, observing that only in the past 10 years more than 1000 decisions were adopted. On the other hand, a wide range of regulatory tools covering issues like peace and security, development, environment, cooperation, trade, human rights and governance, among others, are characterized by a low rate of ratification. An example is the Protocol relating to Free Movement of Persons, Right of Residence and Right of Establishment (Free Movement Protocol), so far signed only by 33 countries with only 4 that have completed its ratification process.

As African States fail to ratify, domesticate, and implement agreements adopted at continental (and regional) level, these fundamental treaties remain purely aspirational, the article concludes.

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