THE NEED FOR THE HARMONISATION OF TRADE LAWS IN THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY (SADC)

in African Yearbook of International Law Online / Annuaire Africain de droit international Online
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THE NEED FOR THE HARMONISATION OF TRADE LAWS IN THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY (SADC)

in African Yearbook of International Law Online / Annuaire Africain de droit international Online

References

I Treaty of Southern African Development Community, Windhoek, August, 1992. The Treaty, after citing the objectives previously enunciated in the "Southern African Toward Economic Liberation - A Declaration by the Governments of Independent States of Southern Africa made at Lusaka, I April, 1980", establishes the SADC. 2 SADC Treaty, ibid, article 21 (1) (2). 3 SADC Treaty, ibid, article 21 (2).

4 SADC Treaty, ibid, article 21(3)(a)(b)(c)(d)(e)(f) and(g). 5 South Africa, Lesotho, Zimbabwe, Namibia and Swaziland (Roman-Dutch); Angola and Mozambique (Civil Law) and Zambia, Tanzania and Mauritius (Common Law). See, M. Ndulo, The United Nations Convention on Contracts for the International Sale of Goods (1980) and the Eastern and Southern African Preferential Trade Area, 3(2) Lesotho Law Journal, (1987) p.127. 6 The Legal system of most African States follows the colonial pattern. This is as a result of European conquest. See, Kwame Opoku, "Legal Pluralism and Conflicts of Laws", The Law of Marriage in Ghana a Study in Legal Pluralism, (1976), p. 1; Antony Allot, New Essays in African Law, (1970); and Lawrence Church, "The Common Law in Zambia", in Law in Zambia, edited by Muna Ndulo, (1984).

7 See, generally, "Sub-Saharan Africa: From Crisis to Sustainable Growth", World Bank Report (1989); "African Alternative Framework to Structural Adjustment Programmes for Social-Economic Recovery and Transformation (AAF-SAF)", United Nations Economic Commission for Africa (E/ECA/CM.15/6/Rev.3); Peerre-clasver, "Development Strategies - Lessons from Experience", in African Leadership Forum,(Ota, Nigeria), 1988 and Olayiwola Abegunrin, Economic Dependence and Regional Cooperation in Southern Africa: SADC and South Africa in Confrontation, 1989. 8 The Lagos Plan of Action was adopted in 1980 and its central theme was regional integration. It called for the establishment of the African Economic Community by the year 2000. See, Organization of African Unity, Lagos Plan of Action for the Implementation of the Monrovia Strategy for the Economic Development of Africa (Lagos, April 1981). The SADC Treaty in its preamble states that, the Southern African States, in establishing SADC took into account the Lagos Plan of Action and the Final Act of Lagos of April 1980, and the Treaty establishing the African Economic Community at Abuja, concluded on 3 June, 1991. 9 "Cooperation versus Integration: The Prospects of the Southern African Development Coordinating Conference (SADC)" - Occasional Papers of the German Development Institute (GN) No. 77.

10 Rose Mtengeti-Migiro, Institutional Arrangements for Economic Integration in Eastern and Southern Africa: a Study of SADCC and the PTA with Experiences from the EEC, 1992; See also Lagos Plan of Action, (1980) and Olayiwola Abegunrin, op. cit., supra, Chapters 1 and 2. 11 UNCTAD, Trade and Development Report, 1995, p. 1. 12 UNCTAD, op. cit. supra, p. 1. The Report observes " In Africa, Structural Adjustment programmes continued to bring only a modest improvement in the growth rate. Long- term development performance remains depressed by commodity dependence, poor

infrastructure, over-indebtedness, low levels of domestic investment and caution by foreign investors as well as by political instability and conflicts." 13 The Economist Intelligence Unit, "SADCC in the 1990s: Development on the Front line", Special Report, No. 1158, (1989). 14 Treaty of the Southern African Development Community, Windhoek, August, 1992. 15 "Towards a Southern African Development Community", Declaration made by Heads of State and Government of Southern Africa, Windhoek, August, 1992. 16 SADCC's formation had been a subject of serious discussion since 1978, and was promoted particularly by the late Botswana President, Sir Seretse Khama. It grew as an economic extension of the Front line States (Angola, Botswana, Mozambique, Tanzania, Zambia and Zimbabwe). See, Economist Intelligence Unit, SADCC in the 1990s, op. cit., supra; see also, Rose Mtengeti-Migiro, op. cit., supra, Chapter 2; and also Margaret Lee, SADCC the Political Economy of Development in Southern Africa, 1989, Chapter, 1.

17 Margaret Lee, op. cit., p. 3; See also Douglas Anglin, "Economic Liberation and Regional Cooperation in Southern Africa: SADCC and PTA", International Organization, vol.37 no. 4, 1983 and R. Davis and D. O'Meara, "Total Strategy in Southern Africa: An Analysis of South African Regional Policy Since 1978", Journal of Southern African Studies, vol. 11, No. 2, 1985. 18 Economist Intelligence Unit, SADCC in the 1990s, op. cit., supra; See also Southern Africa: Towards Economic Liberation: a Declaration by the Governments of Independent States of Southern Africa Made at Lusaka on the 1st of April, 1980 and Memorandum of Understanding of the Institutions of the Southern African Development Coordination Conference, Harare, 20 July, 1981 as amended (in Article 111, para. 2) in Gaborone on 22 July, 1982. 19 The founding members of SADCC were: Angola; Botswana; Lesotho, Malawi; Mozambique; Swaziland; Zambia and Zimbabwe. 20 SADCC Annual Meeting, Arusha, Tanzania, 1991.

21 See , "Implementing the SADCC Programme of Action", A Joint Study by the SADCC Secretariat and OECD Development Center of Structures and Procedures in Development Cooperation, Gaborone/Paris, 1988; "Cooperation Between Electricity Utilities in the SADCC Region"; Proceedings of the Seminar on SADCC Energy Sector, Harare, 12-16, December 1984, "Electricity in the SADCC Region, Status and Future Projects on Regional Cooperation", Proceedings of a Workshop held in Mba6ane, 6-9 March, 1988. 22 "Telecommunications: 10 Year Development Plan", Summary of Proceedings of SATCC, Maputo, 1987. See also "Transport and Communications, Rehabilitation, Harmonization and Modernization in The SADCC African States", Working Paper presented to a Joint Conference Sponsored by the lnternational Transport Federation, the Friedreich Eg6ert Foundation and SADCC Transport Trade Unions, Harare, 23-27 September, 1985. 23 "Regional Seed Production and Supply Project", Record of the Meetings of the SADCC Technical Experts to Review the Draft Report, Juliasdakle, Zimbabwe, 11-15 April 1988; see also Country Profiles SADCC Food Security Sector, Harare, 1988; SATUCC, Gaborone, 1985; and Regional Cooperation in Shipping, Phase A, Final Report, Project 301, by ISTEE , University of Trieste, Italy SACC, Maputo, 1986. 24 The Treaty of the Southern African Development Community, August, 1992, Article 1. Article 3, States that SADC shall be an international organization, and shall have legal personality with capacity and power to enter into contract, acquire, own or dispose of movable or immovable property and to sue and be sued.

25 Ibid, article 5. 26 See, Margaret Lee, op. cit., supra; generally and J. Haarlov, Regional Cooperation in Southern Africa, Central Elements of the SADCC Venture, CDR Research Report No. 14, Copenhagen 1988 and UNIDO, Investor Guide to SADCC Countries, Vienna, 1986. 27 Minnie Venter (ed), Prospects for Progress: Critical Choices for Southern Africa, 1994, p.l.

28 See, Margaret Lee, op. cit., supra, Chapter 3. The East African Community is said to have collapsed in part because of differing economic policies, see Rose Mtengeti- Migiro, op. cit., supra, p. 31. 1. 29 Treaty of the Southern African Development Community, Windhoek, 1992.

30 Ibid. 31 Ibid, articIe 22. 32 Ibid, article 6. See the Constitution of the Republic of South Africa, adopted in December 1996 and came into force on 3 February 1997.

33 See, Rose Mtengeti-Migiro, op. cit., supra, p. 21. 34 See, Treaty of the Southern African Development Community, supra, article 6, and 5 (2) (d). 35 Ibid, article, 5 (1) (a), (b), (h) and (5) (2) (b).

36 Ibid, article, 9. 37 Ibid, article, 10. 38 Ibid, article, 11. 39 Ibid, article, 12. 40 lbid, article, 13.

41 See, Haalov, op. cit., supra. And also Wolfgang Zehender, "Cooperation Versus Integration: The Prospects of the Southern African Development Coordinating Conference (SADCC)", Occasional Papers of the German Institute, (GN) No. 77. There have been additions since the admission of Southern Africa and Mauritius. Others argue that this approach to organization weakens SADC as it relegates the running of SADC affairs to increasingly fragile state structures.

42 See, Rose Mtengeti-Migiro, op. cit., supra, p. 20. 43 Treaty of the Southern African Development Community, op. cit., supra, article 6. 44 Wolfgang Zehender, op. cit., supra; see also Olayiwola Abegunrin, op. cit., supra.

45 See, Rose Mtengeti-Migiro, op. cit., supra, chapter 4, pp. 112-148; See also, "PTA Trade and Development Strategy: Market Integration and Economic Transformation for Sustainable Growth", adopted by the Heads of States and Government of the Preferential Trade Area (PTA) at the Tenth Summit held in Lusaka, Zambia, 30-31 January, 1992. 46 Ona Soleye, "African Alternative Framework to Structural Adjustment Programme for Socio-Economic Recovery and Transformation", Paper prepared for presentation at the International Conference on "the Regulation of Trade and Investment in an Era of Structural Adjustment - The African Experience" Nigerian Institute of Advanced Legal Studies, Lagos, Nigeria, September 4-7, 1989.

47 See, "Commercial Banking in the SADCC Region: The Quest for a Role ", Proceedings of the First Conference of Commercial Banks of the SADCC Region, held at the Arusha- International Conference Center, 13-17 August 1984; see also, C.D. Mysua, The Quest for a Role of Commercial Banks in Fostering the SADCC Initiative, 1984. 48 See, Olayiwola Abengurin, op. cit., supra, p. 45.

49 See, Rose Mtengeti-Migiro, op. cit., supra, p. 167. She observes that "invariably economic integration has been taken to be the business of governments". She recommends that integration must be supported by (a) building a tradition of integrative spirit (b) fostering people to people contacts. For integration to prosper there must be popular participation in the process. 50 The study that led to the establishment of UNCITRAL referred to difficulties faced by parties engaging in international commercial transactions as a result of the multiplicity of and divergences in national laws and recommended a new UN organ to systematise and accelerate the process of harmonisation and unification of international trade law. See "Progressive development of the law of international trade: Report of the Secretary-General", Official Records of the General Assembly, Twenty-first Session, Annexes, agenda item, docs.A/6396, Add.l.

51 Ibid. 52 From a study on the arbitration laws of the member States of the PTA it was found that the national laws studied did not address themselves to international commercial arbitration because they were basically designed for arbitration of domestic commercial disputes. See Report of the Seminar on International Trade Law, Preferential Trade Area for Eastern and Southern African StateslUnited Nations Commission on International Trade Law, Regional Seminar, Maseru, Lesotho, 20-30 July, 1988, p. 18.

53 On the methods of international unification, see Report of the American Bar Association Special Committee on International Private Law (196 1), p. 6 and United Nations Commission on International Trade Law, Yearbook, 1968-70, pp. 39-40.

54 See, Eck Hilding, The Swedish Conflicts of Laws ( 1965), p. 272. 55 See, United Nations Commission on International Trade law, Yearbook, op. cit., supra. 56 See, Federation International des Ingenieurs Conseils, Conditions of Contract for works of Civil Engineering Construction, (Parts I and 11), 1987.

57 See, F. Macini, "The Incorporation of Community Law into the Domestic Laws of Member States of the European Communities", International Law in Practice: Acts and Proceedings of the 3rd Congress on Private Law held by the International Institute for the Unification of Private Law, (Rome, 7-10 September, 1987), p. 13. 58 This is used in the EU. See K. Lipstein, Harmonization of Private International Law by the EEC, (1978).

59 SADC Treaty, article 22. 60 SADC Treaty, article 6.

61 UNGA Res.2205 (XXI), 1966. For a description of the work of UNCITRAL, see United Nations Commission on International Trade Law, second edition, 1992.

62 UNCITRAL, Twenty-second session, "Current Activities of International Organizations", Report of the Secretary-General, A/CN. 9/324. 63 UNIDO, Investment Guide to SADCC Countries, 3-7 November, Harare, 1986, Zimbabwe. There are investments guides on most African countries compiled by UNIDO.

64 The Institute was founded in 1926 for the purpose of harmonising and coordinating the rules of private law of the different States, with a view to promoting gradually the adoption of a uniform system of private law. 65 The purpose of the organisation, as stated in its charter approved in 1951, is to work for the progressive unification of private international law.

66 A peace process is being implemented in Angola after the Angola Peace Agreement, Lusaka, 1995. 67 See, research by African Institute of South Africa, as reported by Agence France Presse, June 12, 1996.

68 Ibid.

69 Minnie Venter, op. cit., supra, chapter 2, pp. 4-71, See also Laurie Nathan, A Framework and Strategy for Building Peace and Security in Southern Africa, Center for Intergroup Studies, October, 1992. 70 The Xinhua News Agency, May 31, 1996. 71 Economics Intelligence Unit, SADCC in the 1990s, op. cit., supra, p. 1

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