Introduction

Customary law is recognized as one of the sources of Kenya’s laws where it is designated “African customary law.” Custom is the oldest source of law in Africa. It generated the body of law that governed the native African communities in pre-colonial Africa. The scope of customary law in the traditional African society was all-encompassing. The advent of colonial administration in Kenya in the latter part of the nineteenth century was to change that broad scope and status of customary law forever, and that regime of law has remained entangled in controversy since. The colonial administration considered customary law to be inferior to English law and initiated deliberate moves toward formalizing that perceived inferiority. So intense was that colonial influence that even later attempts at restoring the respectability of customary law in Kenya after independence have largely relegated it to further inferiority.

Introduction

Many lawyers still have difficulties accepting that customary law is not static, but changes, even is changed in the communities in which it is applied. The widely made reference to the Roman law perception of customary law, according to which one criterion to distinguish customary law from customs is the continued observation of the first over time, is unable to explain the dynamics inherent in customary law recorded by legal sociologists and anthropologists. It is only recently that South African courts have acknowledged that the living law of communities differs from what has been reported to be the official customary law. These courts have opted to recognize the living law over the official version.

Introduction

Customary law in contemporary Ghanaian society has undergone tremendous transformation. Its evolution has been necessitated by the need to adapt to modern development trends and join in the globalization movement. The Ghanaian legal system is characterized by the duality of applicable norms: It straddles customary law on the one side and statutory and common law on the other. The system has witnessed a sort of friction between these operative sources in the bid to institutionalize a single and coherent framework of law. The consequential exchanges thereof have been targeted at the attainment and configuration of a comprehensive system of law within Ghana and a refinement of the customary rules and practices in their adaptation to and participation in the concept of law in aid of the country’s development.

Introduction

Alleged imminent demise of customary law, or some aspects of it, has been and still remains a subject of intense debate among scholars, individuals, and in conferences. The following statements often characterize this debate: “the end of the road for customary law,” “the final nail in the customary law coffin,” “withering province of customary law,” “obituary of customary succession law,” “death shadows,” “killing it softly.”

Relational issues in economic integration take various forms and arise in different forums. A vehicle for addressing them is the founding treaty of an economic integration process. However, given the complexity and continuing character of economic integration, these issues, and the problems resulting from them, may continue to haunt the process. Community courts are legal guardians of an economic integration process, enforcers of the benefits it brings, agents who decide when a breach has occurred and the remedy for it, and arbiters of the institutional tensions inherent in it. They are often called upon to solve these problems. As Shany has observed, ‘economic integration/trade liberalization courts . . . have been created primarily in order to help sustain a very delicate equilibrium between the states parties and other stakeholders participating in a special legal regime, and between the states and other stakeholders and the regime's institutions’. In addition to dispute settlement, community courts are responsible for norm-advancement and regime maintenance. Implicit in these observations is the idea that the functions of a community court go beyond what one would ordinarily expect of a national court. A community court has both judicial and ‘political’ functions. Compared with national courts, their role resembles more of a constitutional court than other lower courts.

Economic integration is defined ‘as the elimination of economic frontiers between two or more economies’. In this regard, an economic frontier represents a demarcation – often the geographical boundaries of a state – into which the flow of goods, labour and capital is restricted. Economic integration involves the removal of obstacles to trans-boundary economic activities which occur in the fields of trade, movement of labour, services and the flow of capital. Economists have identified various stages in the process of economic integration. According to Bela Balassa, economic integration passes through five stages, namely: ‘a free trade area, a customs union, a common market, an economic union, and complete economic integration’. In a free-trade area, tariffs and quantitative restrictions on trade between the participating countries are abolished, but each country retains its own tariffs against non-members. Establishing a customs union involves, besides the suppression of discrimination in the field of commodity movements within the union, the equalization of tariffs in trade with non-member countries. A common market is a higher form of economic integration. In a common market, both restrictions on trade and factor movements are abolished. An economic union combines the suppression of restrictions on commodity and factor movements with some degree of harmonization of national economic policies to remove discrimination due to the disparities in these policies. Finally, total economic integration presupposes the unification of monetary, fiscal, social and countercyclical policies and requires the setting-up of a supranational authority, the decisions of which are binding on member states.

African states that have, for decades since their independence, held on to the idea of nation-state and national sovereignty appear to be on the path towards rejecting both. The immediate post-independence era saw a zealous assertion of national sovereignty by African states and attempts to develop stronger and more stable national institutions. In recent times, and with the resurgence of ‘African consciousness’ – African renaissance – calls have been made for the transfer of sovereignty away from the state to regional and continental institutions. National separatism is being abandoned in favour of regional and continental integration. Through numerous treaties, African states have positioned themselves on a path to economic integration. The route is complex, tortuous and fraught with social, economic, political and legal challenges. The ultimate goal is to create an African Economic Community (AEC). To get there, eight regional economic communities (communities) have been recognized by the African Union (AU) and given the mandate to progress gradually, ultimately with the view to merging to form the AEC.

The effectiveness of economic integration depends largely on how it is received and implemented within member states. It is through implementation that the divide between the community and national legal systems is bridged. In economic integration, ‘the relationship between the rules that shall govern its activities and the domestic laws of the member states is quite crucial to its development’. Residents in a community and national institutions should be receptive to the objectives of economic integration – and prepared to champion them. Thus, a principal challenge in economic integration is ensuring the implementation of community law in member states. How economic integration and especially community law is received nationally depends on a number of factors, of which the legal infrastructure is just one. Legal infrastructure, which conditions how effectively community law is implemented in member states, includes constitutional laws, judicial philosophy and legal culture. With these elements, various mechanisms exist that render non-domestic laws – in this instance community law – enforceable or applicable within states. These mechanisms include national incorporation of international law, the use of foreign laws as aids to construction, the use of foreign laws as the applicable law under the rules of private international law, and taking judicial notice of foreign laws. The use of these mechanisms to implement community law aims to enhance the effectiveness of the economic integration process. They decentralize a community's law enforcement machinery and make it accessible to residents in the community. Administratively, these mechanisms reduce the burden on the institutions set up to monitor and seek remedy for violations of community law. The absence or under-utilization of these mechanisms to implement community law leads to a disjunction between community and member states and the alienation of individuals from the economic integration process. In general, it undermines a community's effectiveness.

At present, the international community is witnessing a proliferation of RECs. They have become a predominant mode for organizing international trade. As of July 2010, the World Trade Organization (WTO) had been notified about 474 regional trade agreements. Each regional trade agreement differs in its ultimate goal; it may create a free trade area, customs union, common market, economic union or complete economic integration. Whichever stage an REC is at, it is undeniable that economic integration results in a juxtaposition of states, laws, legal systems and institutions to achieve a common economic vision. This creates a complex web of relations in which the principal actors are the community, member states, individuals and other international organizations. Accordingly, a fundamental challenge in economic integration is that of structuring and managing the relations between and among these actors. As noted in Chapter 1, relational issues are endemic in economic integration. The extent to which the issues are present in a community, how they are approached and the urgency with which they are addressed have a direct relationship with the stage of integration reached or envisaged. The further economic integration progresses, the more obvious these issues become – and the more immediate the need to address them.

From a legal perspective, and beyond issues on the relationship among the African Economic Community (AEC), African Union (AU) and Africa's Regional Economic Communities (RECs), the approach to economic integration adopted by the AEC raises other important issues, which are yet to be addressed in practice and in the discourse on Africa's integration. These include the legal status of community institutions and law within member states’ legal systems, the effectiveness of community institutions as enforcers of community law, the role of the community courts as arbiters of conflicts between and among the constituent legal systems, and the coordination and harmonization of the laws of member states. These issues form part of the more profound and broader problem that bedevils all economic integration processes: what are, or should be, the legal relations between the economic community and the member states? Economic integration results in a juxtaposition of legal systems. These legal systems include that of the organization responsible for the integration process (community), those of the member states and regional organizations, and the international legal system, which often provides the legal basis for the integration initiative. In addition to issues of management, organization and competition, this juxtaposition of legal systems creates legal problems and raises many questions: What is the relation between community and national legal systems? What is the status of national law in the community legal system and vice versa? What are the rules for resolving conflicts of laws between and among these legal systems? Which institution is responsible for resolving such conflicts?

Interstate relational issues are a feature of economic integration. Regional economic communities operate within the context of multiple state legal systems. The legal relations between the member states of a community are just as important for effective community development as community–state relations. Such relations directly impact on economic transactions within a community. There are socio-political and economic dimensions of interstate relations, but from a legal perspective a number of issues arise in this context. Are normative acts in one state recognized and enforced in other member states? Are there any constraints attached to the recognition and enforcement of foreign normative acts? Do member states share the same legal traditions – common law, civil law, Roman–Dutch law and so on – and how does that impact upon their relations with one another? What is the degree of harmonization of laws between the member states? Should harmonization of laws be pursued as part of the integration processes? In the absence of harmonization, are there any approaches or techniques that could be adopted? To what extent do judges take account of each other's jurisprudence? These are weighty issues likely to be faced by communities in Africa, especially as they progress through the stages of economic integration.