The role of law in deepening regional integration in Southern Africa - a comparative analysis of SADC and COMESA

Master Thesis


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University of Cape Town

Regional integration is not a new phenomenon in Africa. It can be traced back to the creation of the Southern African Customs Union (SACU) in 1917, which was the world's first customs union. Upon gaining independence, states formed the Organization of African Unity (OAU). At that time, Heads of States viewed regional integration as a protectionist measure against colonialism and as a way of forming a self-sustaining continent. However, the additional challenges facing Africa over time prompted various initiatives by Heads of States which were aimed at deepening integration on the continent. Notable actions include the signing of the Abuja Treaty, which established the African Economic Community (AEC), and the replacement of the OAU by the African Union (AU). Further, the continent experienced an increase in the number of Regional Economic Communities (RECs) and there are now fourteen RECs. Despite the steps taken to further integration, the success of such regional integration on the continent has been minimal and Africa has become even more marginalized on the global market. This lack in progression can be attributed to challenges such as inadequate resources, overlapping memberships in multiple RECs and duplicated programmes and efforts. Another challenge that is not readily recognized is the lack of attention to the role of law in economic integration. RECs have largely focused on the economic and political aspects of regional integration but have given minimal attention to the necessity of a strong legal foundation. RECs develop community law and these laws should be enforceable within Member States. However, due to the weak legal systems of RECs in Africa that do not make community law supreme, enforceability of this law has proven challenging. Comparatively, other RECs such as the European Union, have achieved deeper levels of integration and this can partly be attributed to the strong legal systems that have been developed. It is on the basis of this challenge that this study is conducted. The study aims to provide an in-depth analysis of the weaknesses of existing legal systems of the Southern African Development Community (SADC) and the Common Market for Eastern and Southern Africa (COMESA). The study further analyses the manner in which other RECs, such as the European Union and the Economic Community of West African States, have successfully integrated through law, with the aim of identifying solutions for the existing weaknesses in Southern Africa.