Common Problems Affecting Supranational Attempts in Africa: An Analytical Overview

Ever since the colonial era, attempts have been made throughout the various regions of Africa at building supranational units chiefly for administrative and legal convenience. Examples of such attempts include the Federation of Rhodesia and Nyasaland, the East African High Commission and the federations in former French West and Equatorial Africa, all of which were attempts at forging a supranational nation state. These experiments laid the foundation for further supranational initiatives in post-colonial Africa. In this respect, every region in Africa has either experimented with or is currently experimenting with the idea of supranational regional organisations. This article aims at investigating selected attempts at supranationalism on the continent, the successes and failures of such experiments, and the lessons to be learnt from them. As Africa embarks on the journey of solidifying its unity through the establishment of leviathan continental institutions, efforts should be geared towards building on the experiences of past and present experiments at the sub-regional level. Such experiments offer instructive lessons as they are rooted in similar historical and social contexts.

and present experiments at the sub-regional level. Such experiments offer instructive lessons as they are rooted in similar historical and social contexts.
Thus, this article begins with an analysis of supranationalism. This is followed by an outline of attempts at supranationalism within Africa. It concludes by discussing some of the common challenges, as evident in the foregoing analysis, facing (supranational) integration in Africa.

The supranational focus
Supranationalism is a politico-legal concept which embodies but is not limited to the following core elements: decisional autonomy (in particular the rule of the voting majority as opposed to consensus), the binding effect of the laws of international organisations (where member states are precluded from enacting contradictory laws), the institutional autonomy of an organisation from its member states, and the direct binding effect of laws emanating from regional organisations on natural and legal persons in member states. 1 Essentially, supranationalism implies the existence of an organisation capable of exercising authoritative powers over its member states. This is the point where supranational organisations are different from intergovernmental institutions, since the latter are merely forums for inter-state cooperation. In this respect, the legal personality of an institution will determine whether or not it is a supranational institution.
Legal personality is the concept which defines "the actual attribution of rights and/or duties (of international organisations) on the international plane". 2 Such attributes are expressly or tacitly stipulated in the constituent treaty. 3 The constituent treaty will for example indicate the procedural capacity of an international organisation to make treaties, enforce its decisions and enter into agreements with other entities. 4 Similarly, such powers could be inferred from the powers and objectives of the 1 Kufuor identifies the following as some of the factors that necessitated the move towards supranationalism in ECOWAS: the need for institutional efficiency; the search for political legitimacy by ECOWAS leaders; ideological change within West Africa; the desire for stronger regional security architecture; and the need to be a major player in international trade.
integration, led to the establishment in May 1990 of a Committee of Eminent Persons to review the 1975 Treaty. 16 One recommendation of the Committee was that more emphasis should be placed on supranationalism within ECOWAS, especially the vesting of more powers on the organs of the community. 17 The Committee's report formed the basis of the 1993 revised Treaty of ECOWAS.
To underscore its mission of institutional transformation, the Authority in June 2006 approved the transformation of the Executive Secretariat into a nine-member Commission with a President, a Vice-President and seven Commissioners. 18 Having experienced some of Africa's worst armed conflicts, ECOWAS found it important to put in place a supranational security mechanism. 19 In this regard the security architecture of ECOWAS has been adjudged as one of the best on the continent. 20 ECOWAS has successfully intervened in hot-spots such as Liberia, Sierra Leone, and Guinea Bissau. 21 Learning from the past mistakes of its interventions across the sub-region, ECOWAS has established an overarching, all-inclusive security mechanism which consists of a Mediation and Security Council, a Defence and Security Commission, and a Council of Elders. 22 The Mediation and Security Council is made up of ten members, and decisions are made by a two-thirds majority of six members. 23 In addition, civil society is encouraged to contribute to the organisation's early warning system mechanism. 24

Southern Africa Customs Union (SACU)
The SACU 25  was a de facto member because it was then administered by South Africa. 28 The underlying idea behind this arrangement was to incorporate the HCTs into South Africa. 29 The 1910 agreement tasked the SACU with supranational duties by providing for the free movement of manufactured products, a common external tariff on all goods imported into the Union, and a revenue-sharing formula for the distribution of Compared to other sub-regional entities, the SACU can claim far-reaching and substantial achievements such as the harmonisation of policies on competition, investment and intellectual property rights. 45 In addition, the organisation also has a relatively successful framework for engaging with external parties such as the EU and the United States of America. 46

The East African Community
East African integration dates back to the attempt by the British colonial authority to build an economic bloc and at the same time secure greater political control over the The EASCO served as a platform for enhancing cooperation among the territories.
The political elites of the territories viewed the independence of their respective territories as the first step, followed by the creation of a Federal East African state.

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The Tribunal had the power to hear cases relating to the alleged violations of the Common Market and also to give advisory opinion to the Common Market Council. The Industrial Court could rule only on disputes of an industrial nature while the jurisdictional competence of the Court of Appeal was determined by the national laws (Springer "Community Chronology" 23).
Alongside the European Community it was widely acclaimed as one of the best experiments in regional cooperation. One would have expected that the shared values of the member states should be sufficient to hold the organisation together.
As The revival of the EAC, after its demise in 1977, had its origin in article 14.02 of the In order to avoid the pitfalls of the past the preamble of the Treaty identified the following as the reasons for the dissolution of the old EAC: 68 a lack of strong political will; a lack of private sector and civil society participation; disproportionate sharing of benefits among partner states; and the inability to address these issues.

Organisation pour l'Harmonisation en Afrique des Droit des Affaires (OHADA)
The OHADA (in English, the Organisation for the Harmonisation of Business Law in Africa) remains one of the boldest attempts at supranationalism on the continent. Article 10 OHADA Treaty (1993). 79 Article 9 OHADA Treaty (1993). 80 Article 9 OHADA Treaty (1993). 81 The other is the Council of Ministers, which is the legislative arm of OHADA. It is responsible for the adoption of Uniform Acts. See Article 3 OHADA Treaty (1993 Article 4 UEMOA Treaty (1994). 90 Article 6 states that the UEMOA's statutes are superior to the laws of member states. 91 Lavergne "Regional Integration and Cooperation in West Africa" 18-21.

The Central African Economic and Monetary Community (CEMAC)
As previously stated, the CEMAC 97 is the second CFA Franc zone in Africa institutions, the supranationality of its jurisdiction on matters relating to the harmonised business laws. In a series of interviews conducted by Dickerson with various stakeholders across OHADA member states, optimistic views were expressed about the success of the process, especially in relation to the execution of judgments. 104 In the SACU, the revenue derived from the Common External Tariff (CET) amounts to a significant portion of the budget revenue of its member states. 105 All of these facts point to the beneficial nature of supranationalism and its potential in addressing some of the continent's problems.
In spite of the achievements outlined above, there is still room for improvement. As will be shown below, the worrying question relates to the glaring disconnect between commitment to supranationalism at public fora and the creation of an enabling environment for it to be operational. Put simply, there has been a gross lack of political will on the part of Africa states to translate goals and objectives into reality. 106 Thus, this section will attempt to tease out some of the obstacles to integration in Africa, especially within the context of supranationalism. In essence, the discussion will primarily focus on the factors responsible for the inability of regional organisations in Africa to exercise supranational powers.

Weak institutional machinery
A major impediment to operationalising supranationalism in Africa is the fact that regional institutions are not independent enough to implement integration initiatives.
These institutions are expected to operate in accordance with the whims of member states which are often run by dictators with personal interests at heart, rather than to fulfil the ambitious objectives of the organisation. It is thus not uncommon to see 104 Dickerson 2005  There is a strong nexus between the effective implementation of integration initiatives and the autonomy of regional institutions. The ability of these institutions to act above member states in respect of specific areas of common interests ensures that integration is firmly placed in capable and neutral hands and insulated from the vagaries of national politics. It also guarantees that integration proceeds at a significant pace since decisions will not always be taken unanimously or by consensus. In the case of the OHADA, it could be argued that the successful implementation of the harmonisation of business law is largely attributable to an independent and reliable Court of Justice. 111 The same could be said about the BCEAO and BEAC as independent institutions within the WAEMU/UEMOA and the CEMAC respectively.

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In relation to the New Partnership for Africa's Development (NEPAD), some analysts have expressed concern about the continued existence of the programme, especially after its main architects, Olusegun Obasanjo and Thabo Mbeki, retired from office as presidents of their respective countries. See eg Dowden Africa 534. Since the retirement of both presidents, the momentum that heralded the establishment of the programme has largely dissipated. 108 Nyerere also resented the fact that Idi Amin was seen by white minority regimes in Southern Africa as an archetypical embodiment of the failure of black African leadership. See Gregorian "Plowshares into Swords" 189. Another factor that hampers the smooth running of integration initiatives is the lack of funds. The epileptic state of the economies of some African states, coupled with their obligations to pay annual dues to the various sub-regional organisations they belong to, largely contributes to their inability to discharge their financial obligations. 112 There is no gainsaying the point that the availability of funds is crucial for the virility of any organisation, most especially an organisation charged with the responsibility of furthering a capital-intensive project -regional integration and cooperation. 113

Non-implementation of key integration initiatives
As stated earlier, one of the core features of supranationalism is the binding nature of the laws emanating from the international institutions. In order for such laws to have teeth, it is necessary that they either enjoy equal legal status with domestic laws or in some cases supersede them. This is where the doctrinal question of the relationship between international and domestic law comes into the picture.
In international law, there are three theories governing such a relationship: monism, dualism and harmonisation. 114 According to monists, law is hierarchical, with international law and domestic/national law being part of the same legal order. 115 Therefore, international law applies in the domestic system without any need for its incorporation. 116 Dualists view that international law and domestic law are two distinct fields of law. 117 Furthermore, in order for international law to be binding in the domestic system, there is a need for some process of incorporation or 112 The issue of overlapping and multiple memberships will be discussed below. 113 In CEMAC for example, it has been observed that the lack of funds has made it impossible to retain or hire qualified staff (IMF 2005 http://bit.ly/YDkvPV). In their analysis of the problems of finance in the African Union (AU), Ncube and Akena highlight that the organisation functions each year with only 50-60% of its required finance, and that only 1.9% of the total budget is targeted for regional integration programmes (Ncube and  transformation. 118 Lastly, the harmonists seek to arrive at some form of convergence by holding that where there is a conflict between the application of international law and domestic law, the court should apply the rules operative within its jurisdiction. 119 The consequence of this is that the court may apply either of the two. 120 Placing these theories within the African context, the issue is not so much the nature of the legal framework, be it monist or dualist, but rather the lack of political will to domestically implement international law in the form of integration programmes such as the elimination of tariffs and the free movement of persons. 121 In spite of the agreement on the free movement of persons and goods within ECOWAS, it has been observed that security agents continue to harass and intimidate citizens across ECOWAS frontiers. 122 Also, the proposed common currency for the West African subregion, the Eco, which was expected to be launched in December 2009, remains unlikely due to the non-implementation of convergence criteria by member states. 123 The routine disregard or non-implementation of these policies decimates the relevance of the institutional machinery. 124 Also related to the above discussion is the issue of the dichotomised legal tradition guarantees the free entry of citizens from member states without visa for 90 days. The free entry aspect of the Protocol was ratified in 1980, and the right of residence aspect was ratified in 1986. The component on the right to establishment is yet to come into force. Liberia, influenced by the United States of America, is more favourable. 125 The consequence of such dissimilarities is the uneven implementation or outright disregard of policies by member states. 126 This reality is more evident in the preference of some African states to integrate around shared legal system (eg OHADA and WAEMU). There is no doubt that a shared legal system makes integration easier, especially with regard to the harmonisation of laws.
Yet it is equally important that in order to translate the vision of continental integration into practice member states should be prepared to embark on the reconciliation of laws in various areas. In this regard more efforts should be made to identify the common denominators in each of the legal systems and, more importantly, to devise laws which suit the peculiarities of Africa. 127

Crowded integration landscape
The proliferation of regional organisations is an indicator of the failure of African states to genuinely commit to a single, well-thought-out and implementable programme. 128 The competing objectives and programmes of these institutions ensure that member states are unable to wholly adhere to the supranational programmes of the various institutions they belong to. This lack of coordination provides an avenue for non-commitment to supranational objectives. Although the Constitutive Act provides that the AU must "coordinate and harmonise the policies between the existing and future RECs for the gradual attainment of the objectives of the Union", 129 the AU is yet to adopt the Protocol which will provide a legal 125 Thompson 1990 Afr J Int'l Comp L 96. 126 Thompson 1990 Afr J Int'l Comp L 94-97. 127 See eg Fagbayibo 2009 CILSA 321-322. 128 According to a ECA survey, the following points were identified as the reasons why African countries join more than one REC: strategic and political reasons; economic reasons; complementarity; historical reasons; geographical proximity; the need for additional external resources; political pressure; and cultural vision. See AU and ECA (n 32) 52-54. 129 See Article 3(l) of the African Union Constitutive Act (2001). framework for the relationship between it and the RECs. 130 In order to address this, a number of views have emerged on how to rationalise the RECs. 131 As long as the landscape of African integration is defined by the existence of multiple RECs with overlapping and replicated membership, integration will remain a mirage. The UN Economic Commission also proposed five possible scenarios: a) Managing the status quo, b) Rationalisation by merger and absorption, which would entail the merging of existing RECs in order to come up with 5 RECs in each of Africa's sub-region, c) Rationalisation around rooted communities, which calls for the creation of RECs according to common characteristics such as geography, ethnicity and sociology. d) Rationalisation by division of labour, which divides cooperative efforts into regional and sub-regional programmes, categorising them according to the interests of the countries in the same region and e) Rationalisation through harmonisation and coordination, which aims at the harmonisation and coordination of trade liberalisation, and macro-economic convergence policies and criteria of the current regional economic blocs. See AU and ECA Assessing Regional Integration 115-126. The AU Commission has also proposed four possible rationalisation scenarios: a) Maintaining the status quo, b) Maintaining the tenets of the Abuja Treaty within a shorter time frame, c) Rationalisation by anchored community, d) Rationalisation of a political decision by heads of state. See Report of the meeting of experts on the rationalisation of Regional Economic Communities (RECs) held in Ouagadougou, Burkina Faso. 27-29 March, 2006.

Skewed distribution of benefits and hegemonic threats
One of the principal motivations behind a state's participation in regional integration initiatives is the expectation of immediate and long-term welfare gains. In a situation where a country loses out on the benefits accruing from integration schemes, there is a strong possibility of such a country either committing half-heartedly to integration objectives or completely pulling out. 132 As Molle points out, two reasons underlie the need for redistribution policies in a regional integration scheme. The first is the "efficiency argument," which holds that the uneven distribution of benefits such as production factors and economic activities prevents the economy from reaping full profits and attaining maximum potential. 133 The second is the "equity argument," which states that inequality is socially unacceptable and morally unfair. 134 The position with regional integration in Africa is that the countries with the strongest economies end up deriving maximum advantage, to the detriment of other member states. For example, in the old EAC Kenya, due to its relatively developed economy, benefited more than the other partner states. Various measures were put in place to address this imbalance. The transfer tax system was adopted to ensure that industries in Uganda and Tanzania  In a situation where regional hegemons solely dictate and determine the pace of integration, there is bound to be the decimation of the influence of regional organisations. In such a scenario regional organisations become the mouth-piece of regional powers and thus lose legitimacy and the support of smaller member states.
This situation is pointedly explained as follows: [T]he more obvious the existence of a regional hegemon, the more vigorous the rejection amongst smaller states. The independence of this variable in relation to "national identities" is based on the fact that asymmetry can be perceived as a hazard without this being based on national sentiments: citizens can shirk supranational projects involving a much larger entity due to fears that the lack of 138 Mazzeo "Experience of the East African Community" 154-155. influence of their own country within the arrangements will harm local interests, regardless of their attitudes towards the concept of nationhood. 142 While the influence of regional hegemons in any integration process cannot be completely wished away, the point being made is that it is essential that mechanisms which allow the indispensability of smaller member states in the decision-making process are put in place.

Political instability
It is trite knowledge that the implementation of integration objectives demands used to promote and sustain integration initiatives. 146 Such commitments should include the devolution of monitoring and disciplinary powers to regional institutions.
With such powers, regional institutions would be able to promptly intervene in (potential) conflict situations and also impose relevant sanctions on errant member states.

Democratic deficit
The centrality of democracy to the integration process cannot be understated. As previously highlighted, integration requires the uniform application of standards and objectives. In this regard, member states are expected to embrace and practise the principles of good governance and democracy. The need for adherence to democratic values is even more pertinent considering the fact that the onus of enforcing decisions is placed on member states. If integration is understood as a process which not only promotes the establishment of common institutions but also the upliftment of individuals, then it is crucial that these individuals are able to exercise their democratic rights. As Habib et al point out: These norms are critical to further deepen integration… Africa will unite faster if Africans embark on democratisation drives and create democratic institutions based on the logic of the self-empowerment of the people on the foundation of an effective and engaged state civil society nexus. 147 The problem with the integration process in Africa is that the people are excluded from matters relating to integration. Decisions and policies emanating from regional integration are neither subjected to referendums nor to broad consultation with the people concerned. The consequence is that the people know little about the integration process and thus attach little or no significance to the regional allow democratisation at the national sphere, what is the probability of their encouraging it at a transnational or regional level?
Even when integration is exclusively based on business and monetary matters (e.g. OHADA, WAEMU and CEMAC), the idea of democracy and good governance cannot be totally removed from it. While some may argue that matters like these have nothing to do with human rights, the reality is that the absence of the rule of law in member states may also have negative effects on the willingness of potential investors.
As long as the commitment to democratic values remains within the realm of rhetoric, integration initiatives will continue to flounder, unable to attain their full potential. Therefore, it is essential that regional institutions are bequeathed with the necessary powers to monitor compliance with democratic standards in member states.

Conclusion
This article provides an analysis of supranational experiments within Africa. It further offers an insight into the organisational framework of such experiments. Like other regional integration schemes, African integration has had its fair share of problems.
Africa has never been in short supply of integration initiatives. The problem with them, however, lies mainly in the lack of sufficient political will in member states to translate their idealistic statements into concrete action.
Political will, beyond the oft-cited problem of the weak economic structures of African states, plays a major role in the success of any integration process. As is evident from the relative success of the OHADA, the granting of the requisite powers to regional organisations is fundamental. It is not suggested that political will is the only requirement for a successful regional integration process, but it certainly helps firm up the foundation on which virile cooperation may be built. The success of supranationalism on the continent could be enhanced by learning from the experiences of organisations that have attempted to establish leviathan institutions. As shown in this article, the problems experienced by these organisations are similar. It is simplistic to assume that addressing the factors discussed above will guarantee the effective operation of supranationalism in Africa.
Nevertheless, working towards understanding these obstacles and gradually correcting them would be a necessary first step.