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INTRODUCTION
Many regions in the world have realized that peace, strength and power lie, among other aspects, in integration, and have therefore forged relations to achieve optimum regional integration.Footnote 1 Although the rules of international law provide for the sovereignty and equality of states, as well as non-interference in states' domestic affairs,Footnote 2 economic disparities among states and absolute sovereignty have proved disastrous.Footnote 3 In seeking to achieve international peace and security, states have resorted to regional integration. Regional integration has its place in the UN Charter. In particular, one of the objectives of the UN Charter is to: “develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”Footnote 4 In addition, the UN Charter provides for international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and promotion of respect for human rights and fundamental freedoms without distinction.Footnote 5 Specifically, article 52(1) of the UN Charter provides that “[n]othing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the purposes and principles of the United Nations”.
However, the UN Charter falls short of defining “regional arrangements” and there is no single definition for “regional integration”. Notwithstanding the absence of a definition, it is important to note that regional integration is often confused with international co-operation or regional organizations;Footnote 6 however, regional integration must be distinguished from international co-operation. There are many distinguishing features.Footnote 7 This article will highlight just one. Regional co-operation is “a vague term covering any interstate activity with less than universal participation designed [without transfer of sovereignty] to meet some commonly experienced need”,Footnote 8 meaning it can relate to any matter. On the other hand, regional integration, particularly economic integration, is much more focused on economic issues and usually entails pooling of sovereignty, depending on the level of integration envisaged. Apart from the UN Charter, regional integration is predominantly recognized by the World Trade Organization (WTO). Specifically, the General Agreement on Trade and Tariffs (GATT)Footnote 9 and the General Agreement on Trade in Services (GATS)Footnote 10 recognize some forms of economic integration. Most importantly for the purposes of this article, article 2(c) of the GATT decision on differential and more favourable treatment, reciprocity and fuller participation of developing countries (the Enabling Clause)Footnote 11 allows economic integration of least developed and/or developing countries. Indeed, the Economic Community of West African States (ECOWAS) and other African regional economic communities (RECs), except the Southern Africa Development Community (SADC), were notified under the Enabling Clause.Footnote 12 While GATT does not allow members of the WTO to discriminate against other members in their trade relations,Footnote 13 it also creates ways in which member states can discriminate through regional arrangements such as free trade areas (FTAs) or customs unions.Footnote 14 Like the UN Charter, GATT and GATS do not compel states to create regional arrangements, they simply recognize, and to some extent regulate, the operations of regional arrangements.Footnote 15 Simultaneously, GATT, despite not being constitutive of the regional arrangements, is specific on the forms of regional arrangements that states can conclude without being bound by the underlying principle of GATT/WTO non-discrimination; more importantly, it defines such forms of regional arrangements.Footnote 16
Nevertheless, there are theories which seek to define regional integration. These theories are not exhaustive, as the study of integration is evolving and new theories keep being developed; besides, integration in Africa is best discussed in terms of functionalism and neo-functionalism.Footnote 17 This is so because African states want to protect national sovereignty while fostering international co-operation, incrementally, through the establishment of regional organizations to promote economic development; this resonates well in the functionalism and neo-functionalism theories.Footnote 18 According to the functionalist theory, there should be a common index of need for sovereign states.Footnote 19 Such common needs must be addressed by first establishing a joint government for them. The establishment of a joint government does not mean surrendering sovereignty, but pooling so much of it as may be necessary for joint performance of the particular task;Footnote 20 this is reiterated in the treaty establishing ECOWAS,Footnote 21 which will be discussed in this article. The idea behind the functionalist theory is that progress in international economic and social spheres is a condition for the elimination of political conflicts and wars, with the expectation that the needs of an individual will gradually direct his loyalties away from the nation state to the functional international organization;Footnote 22 for Africa, this would mean directing loyalties to the RECs and/or the African Union (AU). Functionalism restricts political decision-making and gives more room for technocrats to decide on integration issues, including the pace for integration and promotion of new areas of integration.Footnote 23 The result is that work becomes efficient due to limited political interference. However, this theory does not find its place in Africa, where political interference reigns, thus circumscribing the role of technocrats. In any event, the relevance of technical skills in the regional organizations is questionable in a situation where the concern is national interests.Footnote 24
Another theory is neo-functionalism,Footnote 25 which is basically a variation of functionalism. To this end, while functionalism was a response to fostering international order after catastrophic wars, neo-functionalism was a response to the need to relate and apply functionalist ideas to integration;Footnote 26 consequently, the two theories share some commonalities. Similar to functionalism, neo-functionalism does not necessarily imply that states have to forgo their sovereignty and control over policy. In addition, both theories generally accept the determining nature of economic, social and technological transfer, and they both realise the primacy of economic welfare and technical co-operation. However, while they are troubled by the factors that are essential for community building, they equally believe in pluralism in decision-making of the participating units.Footnote 27 Distinctively though, neo-functionalism posits that successful integration is dependent on the idea of spillover, which means integration by sector cannot be achieved in isolation; as one sector is integrated there will be consequences, influencing other tasks to be integrated.Footnote 28 These consequences can be classified as negative or positive integration. Negative integration refers to the removal of all forms of barrier to the creation of a single community.Footnote 29 As indicated above, neo-functionalism does not imply that states have to forgo their sovereignty and control over policy. However, the progressive removal of these barriers does impair the management capabilities of governments and questions the need for economic and monetary union, technically referred to as positive integration.Footnote 30 Further, neo-functionalism is characterized by the idea of loyalties, which provide the basis for integration or are born out of successful transitional institutions, that is, loyalty from nation states to the larger unit.Footnote 31 Relating neo-functionalism to Africa, the idea of spillover is almost impossible, given the low levels of integration in the economic sector. In addition, political interference leaves little room for automatic spillover, contrary to neo-functionalism.Footnote 32 Clearly, these two theories do not define regional integration; rather they lay down the underlying components of integration, which do not find a home in Africa.
However, when states integrate, they agree to create either a political or economic arrangement between or among themselves.Footnote 33 This means that there are different kinds of integration, namely economic and political integration, which call for consideration so that one can understand the type of integration that Africa as a region strives to achieve. So far as economic integration is concerned, WTO rules oblige countries to give the same treatment to all WTO members as that accorded to their trading partners. This is called the most favoured nation (MFN) principle.Footnote 34 On the contrary, GATT makes it possible for countries to form trading blocs, on the basis of which they can discriminate against other WTO members and not be bound by the MFN requirement.Footnote 35 The permitted discrimination means that members apply lower tariffs or no tariffs at all to imports produced by other members than those applied to imports produced by non-members. Other arrangements, such as the generalized system of preferences which enables members to give free trade to some to the exclusion of others, are beyond the scope of this article as they relate to preferences that developed countries advance to developing countries.Footnote 36
Economic integration is therefore defined to encompass measures designed to abolish discrimination between economic units belonging to different nation states.Footnote 37 The essential attributes of economic integration are defined with reference to mobility of goods, services, factors of production and variable capacities for shared or supra-national decision-making and implementation.Footnote 38
On the other hand, political integration is roughly defined as a state of disposition to be cohesive, to act together, and to be committed to mutual programmes; it refers to more than one aspect or dimension of behaviour. There is no one best indicator to define it; indicators are often used as definitions.Footnote 39 It is therefore regarded as a process, the conceptualization of which rests on the perception of interests and values of the actors participating in the process.Footnote 40 This means that there cannot be a best indicator of the processFootnote 41 because interests and values vary from one group of actors to another. It is the ultimate form of integration, in which members become one nation. National governments cede sovereignty over economic and social policies to a supranational authority, establishing common institutions, including judicial and legislative processes.Footnote 42 Since various national governments with various interests and values become players in the process of integration, it is imperative that pluralism is allowed, resulting in pluralistic processes of decision-making and interest perception. This is considered an essential attribute of political integration.Footnote 43 The absence of pluralistic processes of decision-making and interest perception naturally result in the collapse of political units as evidenced in the former East African Community (EAC). Lindberg postulates that political integration implies that “a number of governments begin to create and to use common resources to be committed in the pursuit of certain common objectives, and they do so by foregoing some of the factual attributes of sovereignty and decision-making autonomy, in contrast to more classical modes of cooperation such as alliances or international organizations.”Footnote 44
Unlike the international organizations mentioned in this quotation, political integration also involves cultural and social factors, that is, values and interests. This is so because, with political integration, not only are governments involved, but the people must also have a feeling of loyalty to the larger unitFootnote 45 and not exclusively to the national government. As Haas correctly puts it, the expectation is that, as the process of political integration proceeds, values and interests change; they shift from the national government and will be redefined in the context of regional rather than purely national orientation, and national values will be superseded by the geographically new set of beliefs.Footnote 46 In summary, Haas defines political integration as “the process whereby political actors in several distinct national settings are persuaded to shift their loyalties, expectations and political activities toward a new centre, whose institutions possess or demand jurisdiction over the pre-existing national states”.Footnote 47
While the above discussion dealt with economic and political integration as two distinct forms of integration, there can be overlaps between the two. Usually economic integration is influenced by political motives, in most cases resulting in political results. However, not all forms of economic integration give rise to political communities; for example, mere free trade among states does not give rise to a political community. On the other hand, economic union and common markets lead to political communities because of the creation of central institutions and policies, as well as the free movement of labour.Footnote 48 However, attention must be drawn to the fact that although (economic) integration may be in one sector, if that sector gives rise to spillover, thus influencing other sectors, not initially federated, to become integrated, then that economic integration has a clear relationship with political integration.Footnote 49 For Africa, there is almost no distinction between economic and political integration because issues of an economic nature are met with political interference.Footnote 50 As a result, efforts to achieve economic integration in Africa have been significantly undermined since political intervention in economic affairs has not allowed spillover.Footnote 51
As indicated earlier, many regions have resorted to regional integration. The AU must also take credit for regional integration; the existing RECs have been reinforced, and others adopted where they did not exist, to achieve regional integration in Africa.Footnote 52 As noted above, there are two forms of integration: economic and political. It is imperative to determine the type of integration that Africa seeks to achieve. To this end, article 3 of the AU Constitutive Act lays down the AU's objectives, which include the “acceleration of the political and socio-economic integration of the continent; coordination and harmonization of policies between the existing and future RECs for the gradual attainment of the objectives of the Union”.Footnote 53 In its quest for achieving economic growth and development, the Organization of African Unity (now the AU) adopted the Treaty Establishing the African Economic Community, loosely referred to as the Abuja Treaty.Footnote 54 Article 4(1) of this treaty provides the following objectives for the community:
“(a) To promote economic, social and cultural development and the integration of African economies …;
(b) To establish, on a continental scale, a framework for development, mobilisation and utilisation of the human and material resources of Africa in order to achieve a self-reliant development;
(c) To promote co-operation in all fields of human endeavour in order to … contribute to … economic integration …;
(d) To coordinate and harmonize policies among existing and future economic communities in order to foster the gradual establishment of the Community.”
Clearly, economic integration is envisaged by the AU: a goal which the RECs must strive to achieve in accordance with the Abuja Treaty, although this is an absurd expectation given that the RECs are not party to the treaty. Given the broad scope of economic integration as highlighted above, the AU is clear about the level of economic integration the continent seeks to achieve; thus integration in Africa does not end with FTAs within and between the RECs. Rather, it goes to the level of establishing a common market and economic union as provided in article 4(2) of the Abuja Treaty. The AU further adopted a systematic approach to accelerate its integration endeavours. It aligned itself with the guiding principles of the functionalist approach, discussed above, that member states must first identify the common index; as such, the AU has sufficiently identified priority areas for integration in article 4(2)(e) of the Abuja Treaty, as well as in the Lagos Plan of Action.Footnote 55 In clear terms, AU member states have bound themselves to achieve FTAs at the level of RECs,Footnote 56 after which customs union must be established.Footnote 57 Customs union is to be followed by a common marketFootnote 58 and, later, economic union.Footnote 59 On the basis of these provisions, it is indisputable that optimum economic integration, in the form of a common market and economic union, is the ultimate goal to be achieved by African states.
Regarding political integration, articles 3(c) and 3(i) of the AU Constitutive Act provide for political integration as the objective that the AU seeks to achieve through harmonizing the policies of the RECs. Although there is no treaty operationalizing the political integration stipulated in article 3, the AU adopted a declaration in 2007 to accelerate political integration, with the goal of forming the “United States of Africa” (Accra Declaration).Footnote 60 The declaration provides:
“(1) We agree to accelerate the economic and political integration of the African continent, including the formation of a Union Government for Africa with the ultimate objective of creating the United States of Africa.
(2) We agree on the following steps to attaining the Union Government:
(a) to rationalize and strengthen the Regional Economic Communities, and harmonize their activities, in conformity with our earlier decision, so as to lead to the creation of an African Common Market, through the stages set in the [Abuja Treaty] …”.
African states clearly aim for political integration. To this end, they use economic integration to pave the way for political integration in the name of the “United States of Africa”.
It is important to note that the AU adopted a multi-layered approach to continental integration.Footnote 61 However this article focuses solely on the RECs, being the only approach that is reflected in all the AU integration documents, is considered systematic and rational by the author, and of course aligns with the theoretical concept of integration discussed above.
While there are several RECs in Africa, the focus here is on SADC and ECOWAS. They are among the most developed of the eight RECs recognized by the AU,Footnote 62 and hence form a good base for analysing the successes of the RECs that could trigger the AU into establishing the “United States of Africa”. In southern Africa, the decision to establish a body that seeks to generate sustainable economic development for the region came in the meeting of frontline leadersFootnote 63 held in Arusha, Tanzania in 1979. Those leaders regarded the establishment of regional co-operation as a weapon against South Africa's economic domination and economic dependence on the rest of the world.Footnote 64 The first legal agreement of the Southern Africa Development Coordination Conference (SADCC) was a declaration adopted with the objectives of achieving: a reduction in economic dependence, particularly on South Africa; the creation of regional integration; and the mobilization of resources to promote regional policies as a concerted act to secure economic liberalization.Footnote 65 A memorandum of understanding, concluded in Harare in July 1981, set out the intended activities to be carried out.Footnote 66 It was not only dependence on South Africa that prompted SADCC states to resort to integration of the southern Africa region, but also the emergence of powerful trading arrangements in other regions of the world that prompted African leaders into finalizing their own plans for a pan-African Economic Community (AEC), to evolve from RECs with specific trade liberalization and market integration targets. SADCC required transformation in order to emerge as the more logical building block for the AEC in southern Africa, and to have a legal identity.Footnote 67 As a result, the declaration and treaty reconstituting the SADCC as SADC were concluded in Namibia on 17 August 1992.Footnote 68 SADC's core objectives have now been amended to the achievement of development and economic growth, poverty alleviation, enhancement of the standard and quality of life of the peoples of Southern Africa.Footnote 69
On the other hand, the idea of ECOWAS dates back to Liberian President William Tubman, who made a call in 1964 to other west African States to create a body to accelerate economic growth in west Africa. The first agreement was signed in 1965 between Côte d'Ivoire, Guinea, Liberia and Sierra Leone. However, little happened, and the idea was re-launched by General Gowon of Nigeria and General Eyadema of Togo. The two generals drew up a proposal and toured the 12 countries in west Africa, promoting the idea. Several meetings were held before ECOWASFootnote 70 was formally launched in 1972 and the ECOWAS Treaty, known as the Treaty of Lagos, was signed in Lagos on 28 May 1975.Footnote 71 The 15 countries that signed the treaty were: Benin, Burkina Faso, Cape Verde, Côte d'Ivoire, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo. This initiative, led by the Nigerian and Togolese generals, ran concurrently with the plan by the UN Economic Commission for Africa to divide countries into regions for development purposes.Footnote 72
Pursuing its quest for political integration, the AU commissioned a study to look at the formation of a union government, to lead to the “United States of Africa”.Footnote 73 The study reflected major problems facing the concept of the “United States of Africa” at national, regional and continental levels. However, it created a road map towards the “United States of Africa”. According to this roadmap, the “United States of Africa” will be attained by 2015.Footnote 74 In 2007, the AU committed itself to establishing a ministerial committee to examine the concept of a union government.Footnote 75 This committee was established and started work, but it could not reach consensus on key issues due to time constraints. The ministerial committee was elevated to a committee comprising ten heads of state to pursue the same mandate on union government. The AU further authorized an extraordinary session of the Executive Council to look at the formation of a union government.Footnote 76 In 2008, the AU, after looking at the report of the 12 heads of states on union government, requested the AU Commission to work out the modalities and details for implementing the recommendations on union government.Footnote 77 In February 2009, the AU devoted a full day in its summit to look at the formation of the “United States of Africa” and consider proposals to amend the AU Constitutive Act to allow the AU Commission to be transformed into the AU Authority to expedite the formation of the union government.Footnote 78 This article now seeks to determine whether the RECS, in particular SADC and ECOWAS, have reached their goal to the extent that can warrant discussion of the imminent formation of the “United States of Africa”. To this end, it analyses the integration efforts and achievements of ECOWAS and SADC as outlined in their founding treaties, and any relevant subsequent treaties or protocols.
ANALYSIS OF ECOWAS AND SADC INTEGRATION EFFORTS
FTAs, customs union and common market
In their respective preamble paragraphs the treaties of the two RECs recognize the Lagos Plan of Action, the Final Act of Lagos and the Abuja Treaty.Footnote 79 These are very important references, particularly because the two treaties are anchoring documents for integration in Africa. They indicate that the two RECs understand and are determined to align themselves with the ultimate goal of African integration as outlined in both the Lagos Plan of Action and Abuja Treaty. SADC also takes into account the AU Constitutive Act in its integration endeavours.Footnote 80 Mindful of the impact of regional integration, which is pooling sovereignty, and also mindful of the fact that integration bears benefits which, if not shared equitably, can be harmful to member state economies, ECOWAS in its preamble indicates the will to pool sovereignty and share benefits equitably.Footnote 81 On the other hand, SADC does not provide for the equitable sharing of benefits, and this is likely to jeopardize integration efforts in SADC because the countries that lose benefits due to integration are likely to act counter to the objectives of the SADC Treaty.
There are major differences between how ECOWAS and SADC set out their objective of achieving integration. ECOWAS is clear about the ultimate goal or aim it seeks to achieve: the establishment of economic union, which is meant to raise the living standards of the people of west Africa and contribute to the development of an African community.Footnote 82 This aim tallies well with the objectives of the AU as set out in the AU Constitutive Act as well as in the Abuja Treaty. ECOWAS then outlines the steps to be taken to achieve economic union, indicating that the aim shall be achieved in stages, beginning with establishment of a FTA, followed by customs union and a common market;Footnote 83 this is in line with the Abuja Treaty and the Lagos Plan of Action discussed above.Footnote 84 By contrast, SADC does not have a clear aim; it only sets out objectives without pointing out the goal that the objectives seek to achieve. SADC has a myriad of objectives, which include: promoting sustainable and equitable economic growth; promoting common political values, peace and security; achieving complementarity between national and regional programmes; promoting productive employment; utilizing natural resources; strengthening and consolidating historical and social links among the people of the region; combating HIV/AIDS; eradicating poverty; and mainstreaming gender.Footnote 85 With the forms of integration in mind, it is not clear from the SADC objectives what type of integration SADC seeks to achieve; this situation is best defined as reflecting the characterization of integration in the context of underdevelopment, where states are comfortable with co-operation in areas other than the economy.Footnote 86 However, it can be argued that, although economic integration is not specifically mentioned as an objective in the SADC Treaty, it is significant that article 1 of the treaty defines “community” (the southern African community) as “the organisation for economic integration established by article 2 of this Treaty”. Indeed, in the preamble to the treaty, member states expressed their conviction to mobilize resources to promote the implementation of national, interstate and regional policies, programmes and projects within the framework for economic integration.
Despite SADC not being clear on its integration aim, there are of course a number of things that have taken place in the two RECs in question. As such, it is worth looking at the level of integration the two RECs have reached. The main focus, therefore, is on the progress made by ECOWAS and SADC to achieve sub-regional economic union as outlined in the Abuja Treaty and Lagos Plan of Action. To this end, both RECs have established FTAs, to varying degrees. Notwithstanding a lack of clarity on its ultimate aim, SADC has adopted a Protocol on Trade,Footnote 87 and indicated in its programme of action a will to establish customs union by 2010, accomplish a common market by 2015, monetary union by 2016 and economic union by 2018.Footnote 88 Specifically, the Protocol on Trade establishes an FTA in the SADC region,Footnote 89 although the SADC FTA liberalizes goods to the exclusion of services, meaning there is no full trade liberalization. However, some progress has also been made in accelerating the free movement of goods, services and capital, including: initiatives undertaken with the aim of harmonizing custom procedures and instruments (including the electronic exchange of customs data); development of a single customs administrative document to facilitate the harmonization of customs declarations within the region; adoption of common tariff nomenclature; development of a proposal for a regional transit framework; introduction of software to facilitate trade (for example, the promotion of a single counter at border posts and the implementation of SADC transit chain bond guarantee regulations); and updating non-tariff obstacles in 2007, with an action plan aimed at informing, monitoring and eliminating non tariff obstacles.Footnote 90 Nevertheless, significant challenges face the SADC FTA, including: effective implementation of the FTA; full participation of members, such as Angola, which are still finalizing their respective offers to join the FTA; and full engagement of the region's business community and the public in general.Footnote 91
It is important to note that an FTA can have positive and negative effects on a country's economy, depending on the country's level of development. The tendency in developing countries is that an FTA causes economic divergence due to loss of income from tariffs and unequal distribution of proceeds; this situation occurs largely where proper measures are not taken to guard against trade divergence.Footnote 92 With this negative effect in mind, ECOWAS created a compensation fund to remedy the loss of tariff revenue resulting from trade liberalization.Footnote 93 In particular, article II of the Compensation Fund Protocol spells out the circumstances under which compensation is given to a member state; these include loss of tariff revenues from trade liberalization and losses suffered as a result of the location of community enterprises.Footnote 94 The duration of the financial compensation arrangement period was set at four years from 1 January 2004,Footnote 95 and it is unknown to the author if the fund is still operational. However, the amounts to be compensated depended on the loss of customs revenue incurred by a state, and compensation was calculated on the following basis: 100 per cent of any loss incurred in 2004; 80 per cent of any loss incurred in 2005; 60 per cent of any loss incurred in 2006; 30 per cent loss incurred in 2007; and with nothing payable in respect of losses incurred after 1 January 2008.Footnote 96 The effectiveness of this mechanism is, however, reduced because the compensation budget depends on the payment of state contributions.Footnote 97 On the other hand, SADC has not yet established such a fund and one is not mentioned in its protocol; SADC member states, who consider they have been adversely affected by the removal of tariffs, are simply given a grace period for eliminating tariffs and non-tariff barriers.Footnote 98 Of course, a grace period can never remedy the situation; it only postpones the inevitable. Since an FTA implies payment for inter-state goods, ECOWAS travellers' cheques were officially launched on 30 October 1998 and managed by the West African Monetary Agency to facilitate trade and the payment of regional transactions within the community;Footnote 99 SADC does not have such a facility.
On the basis that an FTA is not an end in itself in Africa, RECs must establish common external tariffs (customs union) so as to avoid problems whereby countries in a bloc reduce external tariffs so much in competition for foreign trade and investment that they end up diverting trade.Footnote 100 In this light, although ECOWAS expressed an obligation in its founding treaty to form a customs union, the idea has not yet materialized, even though it was envisaged in 2008. Nevertheless, progress is being made, with some concrete achievements.Footnote 101 Meanwhile SADC, despite the absence of a customs union in its objectives, aims to achieve customs union by 2010 as reflected in its Regional Indicative Strategic Development Plan.Footnote 102 To this end, the SADC Secretariat has directed efforts into conducting preliminary studies leading to preparations for negotiating the SADC customs union; in particular, the studies concerned the model of customs union and the compatibility of trade policies.Footnote 103 As a result of the consultations and discussions that were generated around these studies, SADC approved the establishment of technical working groups to initiate work in the following key areas of customs union: a common external tariff; a revenue collection, distribution and/or sharing mechanism (including the development fund); legal and institutional arrangements; and harmonization of industrial, agricultural, infrastructure, competition and other sectoral policies.Footnote 104 Despite the efforts made towards establishing customs union in 2010, the plans face a serious challenge, in that within SADC there is also the Southern Africa Customs Union, which is at an advanced stage of integration. There is a need for all SADC member states to be at the level of that customs union. Some SADC member states are also members of the Common Market for Eastern and Southern Africa (COMESA), which has also launched its own customs union.Footnote 105 Member states can clearly not belong to two customs unions at the same time, particularly where there are overlaps. Consequently, there is a need for both RECs to share their formulation and see how they could merge and make the integration process move forward. On a positive note, the tripartite summit between SADC, COMESA and the EAC and the resulting draft protocol indicate the right step towards resolving the overlapping memberships for the different RECs.Footnote 106 Overall, given the challenges facing the SADC FTA as well as the establishment of customs union as indicated above, and as customs union can only be established where there is full trade liberalization,Footnote 107 SADC customs union could not be achieved in 2010 as had been planned; rather it remains only a distant prospect. More disturbing to integration is that, with the establishment of the FTA, and the prolonged absence of customs union and a compensation fund in SADC, one foresees the breakaway of economically smaller states as evidenced in the Latin American Free Trade Association (LAFTA), whereby the unequal distribution of the benefits of integration caused economically smaller countries such as Peru and Chile to break away from the LAFTA to form the Andean Pact;Footnote 108 a similar scenario happened in the former EAC.Footnote 109
A common market is not yet in place in either REC. However, ECOWAS has taken a step further to show its commitment to creating a common market, in that it has created community citizenship whereby citizens have a right to freedom of movement, residence and establishment within the region, although it is not yet fully operational.Footnote 110 In trade terms, it is said that ECOWAS has enabled free movement of one of the factors of production, namely free movement of persons, residence and establishment. However, the implementation of the treaty on free movement of persons faces a number of problems in practice, namely road harassment, the high number of roadblocks and illegal barriers, and the problem of lack of security on the roads.Footnote 111
By contrast, SADC has a draft protocol which seeks to facilitate the free movement of persons.Footnote 112 As the title denotes, the protocol does not grant free movement of persons or residence; the only significant activity within the protocol is the abolition of visa requirements where a citizen of one country visits another SADC member state for a period not exceeding 90 days.Footnote 113 So far as right of residence and establishment are concerned, the protocol does not deal with them in any detail as it was adopted to facilitate the free movement of persons. The protocol simply subjects residence and establishment to specific country laws.Footnote 114 This approach is not new because states have always been giving persons residence or right of establishment using their own national laws. It is worth noting that SADC had initially drafted a protocol governing the free movement of persons, residence and establishment;Footnote 115 this could have led SADC to move a step further towards a common market, but the protocol was replaced by the current draft after South Africa, the hegemony power in SADC, showed dissatisfaction with the protocol. To shed some light on the travaux préparatoires of the 1995 Facilitation of Free Movement of Persons Protocol, the SADC Secretariat engaged consultants to draft the protocol, after which it was circulated to member states. South Africa was especially perturbed and the South African Department of Home Affairs immediately commissioned expert opinion. The report was circulated to other departments, with the Cabinet and Parliamentary Portfolio Committee on Home Affairs urging that South Africa summarily reject the Protocol on Free Movement of Persons. Mindful of the political cost of rejecting SADC initiatives, South Africa produced her own “Facilitation of Free Movement” protocol.Footnote 116 Although the Secretariat rejected it and sought to re-draft its initial protocol, it ended up borrowing from South Africa's protocol, and named its protocol “Facilitation of Free Movement”.Footnote 117 To this day, the protocol is still in draft form. On a more positive note towards a common market, in 2008 SADC was in the process of drafting a suitable competition policy model, which was hoped to be implemented by 2010.Footnote 118 The objective was to create conditions to allow markets to function competitively for the benefit of consumers and businesses.Footnote 119
Having scrutinized the objectives of the RECs in question, what is striking is that, although the treaties for each of the two RECs mention the AU Constitutive Act, the Abuja Treaty and the Lagos Plan of Action, the objectives of each REC reflect that the RECs are ends in themselves; there is no indication of how the RECs will each filter into the AU. This is disturbing given that the RECs are the building blocks for continental integration. This situation occurs despite the Protocol on Relations Between the AU and the RECs (Protocol on Relations).Footnote 120 It is unfortunate that this protocol does not direct how any merger will take place. Worse, although the RECs are building blocks for the AEC, the RECs are not party to the Abuja Treaty, as only individual member states within the RECs are parties to the treaty; as a result, it is safe to say that the RECs are not legally bound by the policies and laws of the AEC.Footnote 121 As Oppong correctly questions, “what is the legal basis for assuming the RECs will eventually merge to form African Economic Community?”Footnote 122 In any case, the RECs do not envision merger, and they certainly do not regard their activities and legal personality as only temporary and lasting up to a merger.Footnote 123 Furthermore the Abuja Treaty (although it is not its place to do so) and the Protocol on Relations do not provide a solution to these problems. Also, unlike European Union (EU) norms, which create the doctrine of supremacy of EU law on member states, neither the AU Constitutive Act nor the Abuja Treaty gives the Abuja Treaty such status.Footnote 124 This also poses the question as to whether the RECs would choose the AEC objectives over their respective objectives. The whole scenario shows that there is an integration link missing between the RECs and the AU, which causes one to question the imminent formation of the “United States of Africa”, particularly because such an entity is premised on the successful integration of the RECs into the AEC.
Nonetheless, there are some major achievements (some of which are noted below) within both ECOWAS and SADC in other sectors not necessarily relating to FTAs, customs union, common markets or economic union. For instance, in west Africa, ECOWAS developed the ECOWAS Bank for Investment and Development (EBID)Footnote 125 in 1999, which took over from the ECOWAS fund. EBID's objective is to finance, promote and facilitate economic growth and development within ECOWAS member states and it offers a range of financial products and services to businesses seeking to be involved in viable commercial projects.Footnote 126
There is also an initiative towards energy supply in the community. The ECOWAS Commission has invested efforts to promote long-term co-operation in the effective development of regional energy resources and has harmonized national energy sector development policies. As a result, the ECOWAS energy programme has yielded two coherent projects. First, the west African gas pipeline, a 678 kilometre long pipeline from the gas reserves in Nigeria's Escravos region of the Niger Delta to Benin, Togo and Ghana. The project negotiations began in 1982, construction started in 2005 and the project has been fully completed.Footnote 127 Secondly, the west African power pool (WAPP) became functional in February 2006, to provide a mechanism and institutional framework for integrating the national power systems of member countries.Footnote 128 WAPP is implemented through sub-programmes and the first WAPP priority interconnection project linking Nigeria and Benin was commissioned in January 2007. Some of the interconnection projects currently under construction are: Volta (Ghana) – Lomé (Togo) - Sakete (Benin); and the 225kV line from Bolgatanga (Ghana) to Ouagadougou (Burkina Faso).Footnote 129
In the health sector, particularly regarding mitigating the HIV/AIDS pandemic, the ECOWAS Commission, in collaboration with UNESCO, the World Bank, UNICEF and UNAIDS, identified focal points within the ministries of education in ECOWAS member states and assigned to them responsibility for developing more effective regional and national education sector responses to HIV/AIDS. As a result, a conference of these focal points was held at the ECOWAS Commission in September 2008. The conference discussed among other issues: national education policies; the integration of HIV/AIDS into school curricula; capacity building of teachers in pre-service and in-service programmes; and procedures for monitoring and evaluation.Footnote 130
So far as southern Africa is concerned, there has been a wide range of activities within SADC. Specifically, the regional information infrastructure (RII) provided at member state level, with inter-state connectivity, to integrate the SADC telecommunications network has been a key activity integrating the region.Footnote 131 The RII project has progressed well with short-term (digitalization of transmission links) and medium-term (expansion of the digitalized transmission links) goals being achieved. The long-term implementation plan, which comprises all fibre regional transmission highways, is yet to be completed.Footnote 132
Besides RII, SADC has put efforts into its food, agriculture and natural resources plan and concluded the first phase of its seed security network in March 2007 to facilitate the creation of a regional seed market.Footnote 133 In addition, SADC developed and mobilized resources from the Swiss government for phase two of this project which will facilitate the implementation of the harmonized seed system in all SADC member states.Footnote 134
In the health sector, SADC has made progress, particularly in the areas of malaria and TB control. In the case of malaria, member states have continued to intensify their joint efforts predominantly in prevention (through the provision of long lasting nets and indoor residual spraying) and case management.Footnote 135 Positive trends have been reported from the baseline malaria season of 1999–2000 to 2006–07, which showed reductions in malaria incidence of over 90 per cent in the countries involved in the initiative. HIV/AIDS has been one of the main challenges facing the SADC region. As a result, some major policy frameworks have been developed, which are expected to strengthen the capacity of SADC member states towards universal access to prevention, treatment, care and support.Footnote 136
In the energy sector, the Southern African Power Pool (SAPP) was established in 1995 to expand trade in electricity, reduce energy costs and provide greater supply stability for the region's national utilities.Footnote 137 Given the challenge of power shortages, against a backdrop of non-availability of additional power, the SADC region is implementing three measures. First, a 10 per cent reduction in consumption. Secondly, while it is committed to continue supplying power to other SADC member states, the South African energy supplier, ESKOM, has also adopted a power conservation model, under which it intends to reduce its commitments to the region by 10 per cent in line with its programme of reducing power to consumers in South Africa by the same degree. Thirdly, a regional harmonized framework for a power conservation programme has been developed for implementation across the region; this is currently coordinated by the SAPP.Footnote 138
Success in non-economic areas, as outlined above, indicates what are classified as high and low politics, which characterize integration in the context of underdevelopment in Africa. Central to high politics are the interests of national diplomacy, wherein states prefer self-reliance in certain sectors of integration. On the other hand, low politics in primarily concerned with the issues in which state interests are calculable, and which represent only a fraction of the total resources of participating states.Footnote 139 The areas in which co-operation exists are those that are “functionally diffused and of low political salience (communications, health, care)”Footnote 140 yet, on the other hand, functionalism and neo-functionalism require co-operation in the economic sector for welfare needs to be satisfied.Footnote 141 The achievements in these “isolated projects” suggest that African countries should shift their focus from trade liberalization (a core element of economic integration) and concentrate on co-operating in developing projects of common interest such as roads, electricity, health, communication and combating cross-border crime. This move would basically respond to the call on member states for co-operation on these issues in accordance with articles 2(g) and 3(1) of the SADC and ECOWAS treaties respectively.
Having considered the integration achievements of both ECOWAS and SADC, and bearing in mind the benchmarks that the building blocks of continental integration, ie the RECs, must achieve before a union government can be formed, the question that follows is whether the formation of the “United States of Africa” is premature.
IS DISCUSSION OF THE “UNITED STATES OF AFRICA” PREMATURE?
The introductory part of this article has set out the road map that the AU adopted towards achieving political integration in the form of the “United States of Africa”. In particular, even though the RECs have their own treaties and are not party to the Abuja Treaty (this is an absurd situation but is the current position; see Oppong),Footnote 142 the Abuja Treaty binds the RECs to achieve FTAs, customs union, common markets and economic union.Footnote 143 It is only after economic union has been achieved in and among the RECs that political integration can be tabled.Footnote 144 This systematic and strategic mechanism adopted by the AU is logical because member states need to be at a substantially similar level of economic development before they come together in a union government. This is particularly so because, with political integration, governments begin to use resources together;Footnote 145 otherwise it would be unsound for well-off countries, such as South Africa, to share their resources with economically challenged countries in a union government, as this would negatively affect the lives of their citizens. It is important to note that integration is a process which can only be attained in stages as propounded by one of the earliest theorists of integration, Jean Monett.Footnote 146 To this end, the stages that the AU developed are sound and commendable; if followed rationally and without haste, the “United States of Africa” may well be successfully formed, of course assuming that spillover is allowed.
With regard to FTAs, the analysis in this article has shown that both ECOWAS and SADC have laid the ground for trade liberalization and are now FTAs.Footnote 147 However, as mentioned above, the SADC FTA does not include trade in services but only trade in goods. The SADC Protocol on Trade only recognizes the importance of trade in services and indicates that member states shall adopt policies to liberalize trade in services,Footnote 148 which of course has not happened. What is also striking is the fact that SADC makes a mockery of trade in services by subjecting it to policy implementation instead of treaty implementation, because a policy is not binding on member states. Nonetheless, one can only hope that SADC will adopt a protocol instead of a policy to liberalize services. In summary, this means SADC has not achieved full trade liberalization. This situation alone demonstrates that any discussion on the imminent formation of the “United States of Africa” is premature, given that one of the major pillars of AU integration (ie SADC) is far from realizing its goals.
Turning to customs union and common markets, the findings in this article are to the effect that SADC and ECOWAS are not customs unions as yet, although some initiatives have been carried out. In the same manner, these two RECs are not common markets, although ECOWAS has enabled one of the factors of production (free movement of persons) with regard to a common market.Footnote 149 Economic union has not been achieved in either ECOWAS or SADC, although ECOWAS has a move to a common currency in its immediate plans.Footnote 150 Thus, institutions such as the West African Monetary Agency have been established to implement the ECOWAS monetary co-operation programme, which is geared towards the creation of an ECOWAS single currency.Footnote 151 In the end, the RECs' small achievements reflected above are insufficient to lead the AU to adopt modalities for the formation of the “United States of Africa”, particularly because there are challenges facing what one may consider to be achievements. For example, in ECOWAS, there are members which have still not lifted barriers to trade although ECOWAS has established an FTA;Footnote 152 equivalent challenges facing SADC have been highlighted in the previous sections of this article.
As indicated above, the milestone that the AU has set is that the RECs must successfully achieve economic union in and among themselves; this is the condition precedent for union government, as per the AU Constitutive Act and the Accra Declaration.Footnote 153 In addition, the AU demands that REC policies are harmonized to achieve an African common market.Footnote 154 The understanding here is that the RECs would have individually established FTAs, customs unions, common markets and economic unions, also between themselves; then, once the two stages are complete, the policies would be harmonized to form an African common market. So, on the basis of the different integration efforts within SADC and ECOWAS, it is not clear how policies can be harmonized. Shockingly, as noted earlier, the RECs seem to be ends in themselves. They do not envision merging and there is no binding document for the RECs to merge as they are not party to the Abuja Treaty; they are therefore obviously not bound by the treaty, which is the fundamental legal instrument underpinning continental integration.
Further on the point that RECs must achieve FTAs, customs union and common markets in and among themselves before there can be a successful African economic community, there are only a few agreements that have been concluded between the RECs. SADC has signed agreements with the EAC and COMESA; ECOWAS has only signed an agreement with the West African Economic and Monetary Union (UEMOA).Footnote 155 This further strengthens the point that the proper formation of the “United States of Africa”, as outlined in the Abuja Treaty, is unlikely to occur soon, since there is little relationship between the RECs, contrary to the requirements of the Abuja Treaty. Overall, given that ECOWAS and SADC are regarded as among the three most developed RECs in Africa, and that neither is even close to achieving the milestones, despite the EAC and COMESA having created customs unions,Footnote 156 it may well be argued that other young RECs are a long way from realizing full trade liberalization, customs union, a common market and economic union. As a result, a proper “United States of Africa” is very much in the distant future.
Surprisingly, the AU is aware that an African common market is far from being established on the basis of the 34 year period which was set in the Abuja Treaty. Consequently, the AU adopted the Sirte Declaration, with the aim of reviewing the Abuja Treaty in order to reduce the time frames within which the targets must be reached.Footnote 157 While this may initially be seen as a good move to expedite the process that will eventually lead to the formation of the “United States of Africa”, it is quite short-sighted given that the RECs could not achieve the set targets within the original time, which is regarded to be lengthy. For instance, the Abuja Treaty entered into force on 12 May 1994, and the RECs should have established FTAs and customs union within ten years thereafter,Footnote 158 which is roughly 2004; in 2011 most RECs have still not established customs union.
Against this background, the AU has no basis to substantiate the imminently envisaged formation of the “United States of Africa” because it is expected that the RECs must realize their goals before political integration can be achieved. In fact, in an interview between the RECs and the AU, UEMOA indicated that many problems lie ahead before full integration can be achieved in Africa and warned against haste.Footnote 159 The AU is now responding by reviewing the Abuja Treaty with a view to reducing the time lines within which FTAs, customs union, common markets and economic union are to be achieved.
CONCLUSION
The efforts that the AU has undertaken to achieve regional integration are systematic and commendable: notably, the creation, strengthening and rationalization of RECs to achieve economic integration. This will lead to the AU establishing an African common market, and ultimately translate to the “United States of Africa”. However, the analysis above on ECOWAS and SADC indicates initially that all the RECs have a goal of achieving economic integration, which would ultimately lead to an African economic community, although the discussion revealed that the RECs are ends in themselves, and that there is no legal basis for, and/or efforts from, the RECs to merge since they are not party to the Abuja Treaty. Consequently, the idea that the time is right for the creation of the “United States of Africa” is premature.
Assuming that the RECs were legally bound by the Abuja treaty, and as such expected to reach full economic integration in and among themselves before the formation of a union government, this article has proved that both ECOWAS and SADC are far from realizing the goals outlined in that treaty; as a result, it is clearly very premature for the AU to consider the “United States of Africa”. In any case, the areas which have successfully been integrated in the RECs (electricity, water, health, communication) lead to the conclusion that the RECs are seemingly much more comfortable with co-operation than with economic integration. Consequently, the “United States of Africa”, premised on successful economic integration in and among the RECs, is concluded to be a much more distant prospect, contrary to the AU's hopes. More alarmingly, the expectation for economic integration in SADC is disturbing on the basis that customs union, common market and economic union are reflected in the programme of action without any constitutive treaty; this affirms the supposition that the RECs seem to be comfortable with co-operation as opposed to economic integration.
In summary, instead of directing efforts to the formation of a union government, the AU could have adopted a treaty or amended existing treaties to make the RECs party to the Abuja Treaty, the AU Constitutive Act and other relevant treaties. The fact that the RECs are reluctant to integrate areas that are necessary for economic integration must be examined more closely; perhaps it is time to end the fanfare for the “United States of Africa” and return to the drawing board to determine whether African states want to integrate their economies (let alone becoming the “United States of Africa”) or merely co-operate in areas of common interest. Otherwise, there is a need to adopt other robust implementation mechanisms for the objectives of the Abuja Treaty, and to monitor and evaluate the work of the RECs to ensure compliance with the treaty, while simultaneously finding strategies in which the work of the RECs will eventually filter into the AU to avoid the current situation whereby the RECs are ends in themselves.
