Flexible Regional Economic Integration in Africa

Lessons and Implications for the Multilateral Trading System

Timothy Masiko

• Publisher: Hart Publishing
• Year: 2022
• ISBN:
  9781509944972
• Edition: 1
• Topic: Jura
• Subtopic: Internationales Handelsrecht

This book examines the relationship between flexible regional economic integration in the East African Community (EAC), through its application of variable geometry, and the establishment of the African Continental Free Trade Area (AfCFTA) as a continent-wide form of integration. It uses a historical, political, legal and economic analysis of the processes that led to the adoption of flexible regional integration in Africa, with particular regard to the EAC. This takes place in the inescapable context of pan-Africanism, showing how regional integration efforts in Africa are based on pan-Africanist ideals, and how an evolution of these ideals has led to an evolution in the goals of integration. With growing awareness of the weaknesses and impracticality of consensus-based decision-making on a global level, it makes the case for the pursuit of flexibility in multilateral trade, drawing lessons from the experience of the AfCFTA and blocs in other regions. This book is a historical evaluation of regional economic integration efforts in Africa and it follows the path of attempts to integrate the economies on the continent from colonial times to the birth of the AfCFTA. While it is a study in law, it relies heavily on politics, economics and history to weave together a more complete theory of economic integration based on the African experience. Flexible Regional Economic Integration in Africa was awarded the 2020 SIEL–Hart Prize in International Economic Law.

1

Introduction

Regional economic integration in Africa elicits one of two reactions: curiosity or lethargy. For some, it is a new subject, and gives rise to questions about how effective it is, how long it has been going on, and whether there are any success stories of note. For others, it is another reminder of another treaty waiting to be discarded in favour of a ‘new and improved’ one, hoping that the mistakes of the previous one will be remedied by the creation of a new bloc. Curiously, both perspectives are valid. Regional economic integration in Africa has existed longer than African countries in their current form have, so it is nothing new. And yet, there is still limited coverage of the issues surrounding regional economic integration in Africa.

The myriad of factors that have driven and hampered regional economic integration in Africa are a central theme of this book. Through all the highs and lows, the common thread of pan-Africanism remains ever present. Pan-Africanism is based on the belief in a shared heritage among Black Africans, and can be deduced from this famous quote from former Tanzanian president, Julius Nyerere:

Africans all over the continent, without a word being spoken either from one individual to another, or from one African country to another, looked at the European, looked at one another, and knew that in relation to the European, they were one.¹

This is, arguably, rooted in the same philosophy as ‘Ubuntu’ – the belief in a common and shared identity as humans.² Pan-Africanism is a race consciousness that is the result of the relationship between often-oppressive colonial masters and their former colonies. As Ali Mazrui explains, if class-consciousness in Africa is partly the result of the intensification of capitalism, race consciousness on the continent has been partly the result of the intensification of imperialism. Just as capitalist exploitation helps to make workers more collectively conscious of themselves as workers, so European imperialism over time has helped to make the colonised Africans more collectively conscious of themselves as a colonised people.³

Pan-Africanism, therefore, is an ideology that pushes for the unification of the African continent based on the common identity Africans share as against other races. To quote Minkah Makalani, it is the belief that African peoples, both on the African continent and in the Diaspora, share not merely a common history, but a common destiny.⁴ As will be seen throughout this book, it drives the efforts to unify the continent, and indeed, a case can be made for the idea that integration in Africa is an attempt to return to pre-colonial, borderless times. Since independence, African leaders have advocated for a politically and economically united Africa. At the formation of the Organisation of African Unity, Kwame Nkrumah famously inspired the unity of African states:

Here is a challenge which destiny has thrown out to the leaders of Africa. It is for us to grasp that golden opportunity to prove that the genius of African people can surmount the separatist tendencies in sovereign nationhood by coming together speedily, for the sake of Africa’s greater glory and infinite well-being, into a Union of African States.⁵

Such ambitious rhetoric continues to underpin regional economic integration across Africa. This book reveals that since independence, there have been ceaseless attempts to unify the continent, using all kinds of approaches and based on various motivating factors. One of the approaches to integration has been flexible integration in different forms, with different names and even without being named. In the most general terms, flexible integration is the non-uniform application of treaty provisions by state parties to any given treaty. Like integration in Africa, it exists mostly as a footnote in literature, with limited efforts to define it in detail. This book is an attempt to fill both gaps simultaneously.

The history of the East African Community (EAC) illustrates the evolution of flexible regional economic integration in Africa, explaining how it is simultaneously a method and a consequence of integration efforts across the continent. This inevitably involves an examination of the ideological conflict between the unifying ideals of pan-Africanism and the nationalist and regional interests of African states. This book considers how, after trying multiple methods of integration, African states appear to have admitted that some fundamental differences will always exist, and rather than let those differences hamper integration, they should be accounted for in the process of integration. Indeed, without a specific form of flexible integration,⁶ the African goal of continental integration may never have been set in motion. The Treaty Establishing the Africa Continental Free Trade Area (AfCFTA)⁷ is the direct result of the relative success of smaller units of integration on the continent. The EAC is one such unit, which has, more formally than any other, applied flexible regional economic integration to its own development.

The political, economic, and legal history of the EAC reveals the use of flexible integration in the liberalisation of trade between the bloc’s Partner States. It is a stellar example of how the law is used to achieve balance between potentially opposing yet necessarily merging interests. This presents the paradox of flexible integration: integration as it is currently understood would necessitate some sort of convergence, if not in rules, then in policies and practice. Flexibility, on the other hand, would seek to accommodate differing levels of willingness and capacity to reach this convergence. Flexible integration, then, seems like a ‘two steps forward, one step back’ approach to economic liberalisation between states.

The pages that follow tell a story of decades of successes and failures, broken and reconstructed relationships, and a regularly renewed hope in the possibility of unity – a unity that takes account of diversity. It is the story of the EAC, a bloc that took the relatively bold step to admit that while consensus is admirable, the existing approaches that encourage a uniform application of rules are broken. It demonstrates how, based on the desire to unify a continent, states may design the rules in a way that allows them not to uniformly apply those rules. It questions where, how and why this idea was conceived, whether it is a good idea, and whether it is effective – whether for better or for worse.

The sections that follow contextualise the EAC and flexible regional economic integration, and present a summary of the methods and data relied on throughout the book.

I.THE EAST AFRICAN COMMUNITY (EAC)⁸

The EAC is the regional intergovernmental organisation of the Republics of Burundi, Kenya, Rwanda, South Sudan, Uganda, and the United Republic of Tanzania, with its headquarters in Arusha, Tanzania.⁹ The Community in its current form is a third attempt at integration, with the first iteration being between Kenya and Uganda in 1917, later joined by Tanzania in 1927.¹⁰ This only lasted until 1966, but was revived in 1967, only lasting until 1977.¹¹ The EAC as it is today started on 7 July 2000, and has adopted variable geometry, one of several forms of flexible regional economic integration,¹² as an operational principle for its integration.

Even from this summarised history of the EAC that spans three alliances across a century, it is clear that the EAC’s journey has been eventful. Its chequered history makes it the ideal focus of this book. At its beginning, the EAC was a matter of convenience for the colonial governments of British East Africa,¹³ while the first post-independence reincarnation was an attempt by young states to cooperate in the absence of a central, external power.¹⁴ With the revival of the EAC more than 20 years after its second collapse, this history was not disregarded, and the lessons of the past were incorporated into the 1999 treaty.

Both the second and third versions of the EAC reveal pan-Africanist nuances, whether expressly, as with the post-independence cooperation, or impliedly, as the current bloc shows. The 1967 EAC was consistent with the liberation-driven pan-Africanism of the time, focused on aiding the newly independent member states to establish themselves. The EAC today is therefore an essential building block of the AfCFTA, leading to continent-wide integration.¹⁵ In both, the idea of an independent and unified Africa is a prominent driving factor.

Thus far, there appears to be considerable effort at convergence and deeper integration of the Partner States’ economies.¹⁶ However, starting in June 2013, the heads of state of Kenya, Rwanda, and Uganda engaged in several negotiations and made decisions to expedite the integration process among the three countries, to the exclusion of Burundi and Tanzania. These negotiations gave birth to the Tripartite Initiative for Fast Tracking the East African Integration (TIFTEAI), which was initially referred to as the Coalition of the Willing. This nomenclature is indicative of several factors, but most importantly, it reflects the attitudes of the different member states towards the integration process, highlighting the glaring disparity between Kenya, Rwanda and Uganda on the one hand, and Burundi and Tanzania on the other. In the months that followed, this initiative came to be formally known as the Northern Corridor Integration Projects (NCIP).¹⁷

The NCIP was the first, and so far most significant implementation of variable geometry in the EAC. There are several reasons for this state of play, not least of all being Tanzania’s apparent reluctance to implement the treaty and its protocols, and Burundi’s lack of capacity to make the relevant adjustments for integration. Although South Sudan joined the EAC after all these events had taken place, its position is similar to Burundi’s. However, unlike Tanzania, it appeared more willing to fast-track the integration of the bloc. Chapter four gives a more detailed history of the EAC, including a summary of the process of integration in the bloc at the time of writing, while the dynamics of regional relations are considered in detail in chapter six.¹⁸

Why, then, select the EAC? There are several reasons, with the first being the academic’s old faithful: interest. As a citizen of an EAC Partner State, I was inspired to undertake this study because of a question that appeared to have no answer. In the early days of the NCIP, someone asked why Kenya, Rwanda and Uganda were cooperating more closely, to the exclusion of the other members of the EAC. A quick answer was found in Article 7(1)(e) of the EAC Treaty in the form of variable geometry. That sated the enquirer’s curiosity, but only stirred mine. It seemed counter intuitive to have a disintegrative principle included in what appeared to be a treaty for economic integration. And like the proverbial Alice in Wonderland, down the rabbit hole I went in pursuit of answers.

Another reason for the selection of the EAC is just as practical as the first: expediency. Being born of the EAC, materials, offices and officials would be more readily accessible to me than any other regional bloc in Africa. I have benefitted from living, studying and working in both Tanzania and Uganda, and am familiar with the laws, politics and history of the region and its constituent Partner States. Prior to undertaking this study, I was a consulting associate in trade policy and trade law, and this led to a considerable interface with integration issues in the region and beyond. While this may seem like reaching for low-hanging fruits, it is, instead, pragmatic, since a study that imposed an inordinate burden on a limited budget would be undesirable.

Beyond the attractiveness of ease and convenience, the EAC is an ideal candidate for any study in African regional economic integration for several reasons. It has a long and eventful history, with only the Southern African Customs Union (SACU) being older.¹⁹ It has experienced various upheavals, some stemming from the na...