Abdou Diouf
Abdou Diouf

Development is a global notion that comes hand in hand with the establishment of the rule of law, respect for fundamental liberties and transparency in public sector governance. As early as 1999, French-speaking heads of state at Moncton announced that supporting the popularisation of the political society was the prerequisite for sustainable development. African leaders have admitted that there is an indisputable link between promoting the rule of law, democratic governance and economic development.

Therefore, alongside civil law, which protects individual freedom and equality and ensures that society functions correctly, business law is a necessary and discreet means of integration. Effective and sustainable economic development is not possible without good financial and trade justice, which enable the establishment of regulations in a defined area and provide individuals, investors, manufacturers and consumers with the best legal conditions for founding companies, making personal investments, and using their resources.

Economic development depends on both national and foreign investment, which will only be consistent and on-going in a country where the legal environment is favourable, secure, simple and clear, in short, where a set of rules allow investors to operate with a reasonable degree of serenity.

With this in mind, in 1993, 14 French-speaking countries signed the Treaty creating OHADA (Organisation pour l’Harmonisation en Afrique du Droit des Affaires or the Organization for the Harmonisation of Business Law in Africa).

Any member of the African Union can adhere to this Treaty, which advocates two methods. First, the Uniform Acts, which, according to article 10 are directly applicable and overriding in the Contracting States notwithstanding any conflict they may give rise to in respect of previous or subsequent enactment of municipal laws. Secondly, the Common Court of Justice and Arbitration which draws up the jurisprudence and ensures that the Unique Acts are interpreted uniformly.

Adopting OHADA law means losing exemplary sovereignty, and the full impact of this fact has yet to be measured. Though OHADA law is recognised by large donors like the World Bank and widely analysed and developed in university circles, its spread is slowed by national judicial systems which seek to continue to apply the law without external control and by regional communities which draw up their own business law without applying a specific procedure for coordination.

This all depends on the interpretation of the notion of sovereignty and on the exercise of political will. In order to be an effective tool, OHADA law requires that a country should leave the drawing up of its business laws to a higher authority and should ensure that its legal system implements the adopted texts with determination, eliminating earlier national texts wherever necessary. This way it would be exercising sovereignty with regard to its development (the creation of favourable conditions for investment growth and economic activity), possibly attempting to rival neighbouring countries by offering a better infrastructure, a more reactive tax system or better trained human resources.

Unfortunately, because of the lack of common and explicit political will and the lack of real supply capacity, the opposite situation prevails. Countries assert their sovereignty by implicitly and perplexingly questioning the procedures that ensure the smooth running of OHADA, by weakening the effectiveness of its systems, particularly those of the Common Court, by tolerating the introduction of antagonistic communitarian laws and by interrupting the development of the OHADA law though this is necessary given the world economic environment.

In the past, many a blunder has been made in the name of sovereignty. Sound judgement in the exercise of sovereignty is as essential to good governance as healthy management of public finances or the respect of fundamental liberties. The future of the harmonisation of business law will be a good indicator of just how aware States and their leaders are of the risks associated with the exercise of sovereignty.

Photo © OIF

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