AJIL Symposium: Regional Courts, Regionalism, Critical Junctures and Economic Integration in Africa

[Dr. Kofi Oteng Kufuor is a Professor at the University of East London, UK.]

In November 2013 the ECOWAS Community Court of Justice threw out a case brought before it by Nigerian traders seeking a judgment that Ghana’s investment legislation which discriminated against ECOWAS nationals was inconsistent with ECOWAS law. The decision by the Court was surprising not only on account of it being a setback to the ECOWAS goals of a single economic market but it was also a blow to the supranational regime that the members created with the adoption of the Revised ECOWAS Treaty. Moreover, this decision was even more astonishing as it went against ECOWAS law and related protocols on the free movement of persons, right of residence and establishment.

The decision was also surprising in the wake of the efforts by the Court, carefully outlined in the paper “A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice” by Alter, Helfer and McAllister (AHM), to extend its power. The research by AHM states that in the early stages of the Court’s power grab, economic union was sacrificed for the protection of human rights. At the core of the paper by AHM is that a constellation of actors, driven by a variety of interests, came together at a critical juncture in ECOWAS politics – there was widespread concern about the respect for human rights and humanitarian law – and this meeting of persons and policy space created an opportunity for the Court to expand its reach into the realm of human rights.

However, if we accept the core arguments of public choice theory then the Court could have exploited the petition before it to seize more power for itself. Thus public choice theorists studying international organizations will be surprised to see that this supranational moment has slipped especially with regard to an organization that still has compliance and legitimacy problems.

AHM assert that the decision to allow private interests to bring human rights suits before the ECOWAS Court was done at the expense of the Court serving as an engine for realizing the economic integration objective. The inference from this is that while a critical juncture appeared and thus an opportunity seized in the name of human rights, a similar opportunity is yet to come into existence for economic interests. However, looking at the rejection of the traders’ suit from a non-economic “irrational” point of view, the ECOWAS Court has struck a blow for re-connecting markets to society by abating neoliberal economic openness that subordinate Ghana’s investment law to ECOWAS law. Was the Court able to do so because the kind of interests that birthed the Court’s rights moment did not exist at the regional level? Inferred from AHM’s work the answer seems to be yes.

AHM’s paper suggests scholar analyse the dynamics of regional courts and also regionalism in Africa as whole in the context of dramatic socio-political change. There is the argument that paradoxically, the destruction of Europe during the Second World War was beneficial in that it allowed for decisions to be taken free from the resistance normally offered by coalitions resistant to sweeping changes. (see Simon Bulmer in Artis and Nixson). The disruption of the glacial pace at which institutions change, punctuated equilibria as this is sometimes called, enabled the break from the path dependency of previous institutions and helped create fertile grounds for the supranational radicalism of European integration as a whole and the European Court of Justice in particular. Thus while Europe suffered a seismic shock on account of the War, Africa on the other hand has never had a conflict and consequences of a similar magnitude. Rather, the run up to the emergence of regional integration bodies was a period of the slow unravelling of Europe’s colonial empires and this allowed for pro-sovereignty interests that would benefit from state protection, to weaken any regional organizations that could pass laws which open up domestic markets.

AHM have explored the evolution of a regional court. Their research in this regard alone is enough to enrich intellectual inquiry into ECOWAS. The implication of their paper goes even further as it draws our attention to issues for a better understanding of regional integration across Africa.