AN APPRAISAL OF THE CONCEPT AND PRACTICE OF ECONOMIC INTEGRATION UNDER INTERNATIONAL LAW: A CASE STUDY OF ECOWAS

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AN APPRAISAL OF THE CONCEPT AND PRACTICE OF ECONOMIC INTEGRATION UNDER INTERNATIONAL LAW: A CASE STUDY OF ECOWAS

CHAPTER ONE

GENERAL INTRODUCTION
1.1 Background of the Study
The concept and practice of economic integration between or among states has an old history.

By literature available to the researcher, it dates back long before the period of the Berlin Conference in 1884, when African nations thrived on cooperation and community life to resolve challenges and develop their communities[1] . Relative to the Economic Community of West African States (ECOWAS), it is as old as the community itself. Indeed, it is the raison d‘être for the formation of the community. Article 3 of the ECOWAS treaty sets out the aims and objectives which among others are to promote cooperation and integration leading to the establishment of an economic union.

West Africa is the part of Africa that is bounded in the West and South by the Atlantic Ocean, the Sahara desert on the North, and on the East by the eastern boundaries of present day Nigeria. Practically, it is that area of Africa that is encircled in the North by a line running from the Senegal River to Lake Chad, in the East by a line running from Lake Chad Basin to the Cameroon Mountains, and in the south and west, by the Atlantic Ocean coastline.[2]

Traditionally, the peoples of West Africa have earned their living from the land which accounts for why agriculture remains the bedrock of all other indigenous economic activity in West Africa. Other occupations such as trade and craft manufacture were rather undertaken on a part time basis, while additional types of productive enterprises were often made possible by the financial surplus from agriculture. The arrival of the Europeans on the west coast of Africa between the 17th and 18th centuries drastically changed the nature of economic activities in West Africa, resulting in a ‗profitable trans-national commercial enterprise‘ which for centuries severely retarded socio-economic development throughout West Africa. Also, the resultant partitioning and subsequent introduction of European colonial governance in West Africa with its colonial policy of legitimate trade in one or two cash crops to serve the industrial needs of Europe further worsened the resultant erosion of indigenous industrial skills and the basis for the development of sustainable interactive economic activities

throughout West Africa.

In consequence therefore, by the time most of the new nation states of West Africa gained their independence in the 1960‘s, they were left with structurally fragile and highly disarticulated economies with inherent acute and devastating price distortions in the international commodity market.

Efforts to co-ordinate economic cooperation on a sub-regional level in West Africa dates back to 1963, with a conference on industrial harmonization in the sub-region in Lagos, Nigeria, followed by the Niamey conference on economic cooperation in 1966. Similarly in 1967, another conference was held in Accra, Ghana where a tentative agreement on the Articles of Association of a proposed economic community in West Africa was signed.

An interim Council of ministers mandated to prepare a Draft Treaty for the proposed community recommended that the inaugural meeting of the proposed community be held at the level of Heads of State and Government. Though the Heads of State and Government actually met in Monrovia in 1968 and signed the protocol for a regional group, neither the Draft Treaty nor the Protocol on customs union submitted by the interim council was adopted.

In 1972, the process was revived by the Heads of State of Nigeria and Togo by mandating their officials to streamline a framework for community cooperation based on the following guiding principles:

That, the envisaged economic community should cut across linguistic and cultural differences.
Should pursue limited realizable objectives.
Approach adopted should be flexible and practical.
Necessary institutions are to be adopted allowing all countries to become members at their convenience.
The proposals of a joint Nigeria-Togolese delegation embodied in a Draft Treaty was recon-

sidered in yet another ministerial meeting in January 1975, and finally signed on 28 May,

1975, by the Heads of State and Government/ Representatives of the fifteen member states of West Africa, thus, marking the end of over a decade of strenuous effort to institutionalize a framework for coordinating sustainable development and collective self-reliance in West Af-

rica.

ECOWAS was therefore established in 1975 to coordinate and promote trade, cooperation and sustainable development throughout West Africa. The signing of the ECOWAS Treaty of Lagos in May 28, 1975, was indeed a kind of radical response to the plague of poverty and underdevelopment bedevilling West Africa, and as a result, practically provided the much desired framework for the realization of rapid and sustainable socio-political and economic development throughout the sub-region, and has till date the following member states: Republic of Benin, Burkina Faso, Cape Verde, Cote d‘Ivoire, Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and the Republic of Togo.

All these countries differ considerably in their colonial history, natural resource endowments and institutional and administrative systems. At the one end of the scale is Nigeria, rich in human and natural resources, and at the other end is Burkina Faso with poor human and natural resources. These remarkable differences significantly and constantly shape their regional relations and their ability to participate meaningfully in regional economic integration programmes.

The ECOWAS Treaty provided for a gradual establishment of a customs union, common external tariff and harmonization of economic and financial policies of member states within a period of 15 years. It also made provision for compensation for losses encountered by member states in the course of the implementation of the provisions of the treaty.

The original treaty was revised in 1993, to broaden economic integration and increase political participation and cooperation throughout the sub-region. The revised treaty sought to attain an integrated common market and a single monetary union with an institutionalized Parliament for stronger political cooperation and participation within the sub-region.

1.2 Literature Review
Because of its relative recentness, the topic of this research has not enjoyed much writing by scholars. Those who did, have tended to show the increasing interface between constitutionalism, rule of law and economic prosperity resulting from regional economic integration, which basically involves the harmonization of economic, social, political and legal objectives.

Among the few works on the subject of research are the works reviewed below.

Adewoye, O.[3] states that constitutionalism or the rule of law, simply denotes a set of principles in the governance of a polity; effective restraints upon the powers of those who govern, the guarantee of individual fundamental rights (ranging from freedom of speech and expression to the right to privacy), the existence of an independent judiciary to enforce these rights, genuine periodic elections by universal suffrage, and the enthronement of the rule of law as reflected in the absence of arbitrariness, and the equality of all before the law. He said this is basic to regional integration, particularly as it constitutes an important reason for the success of the European Union. He states that West African states have barely begun instituting constitutionalism as a mode of governance, and it is therefore not surprising that their efforts at economic integration have met with little success. He contrasts the European experience with that of Africa with emphasis on the constraints to regional integration resulting from the very different pattern of law and politics observed in Africa. He posits that constitutionalism fundamentally explains the success of the European Union because it entrenched the notion of a limited state whose will could be subjected to that of a supranational authority in specific areas of activity. He further states that constitutionalism was so fundamental to the operation of the Union that Greece, Portugal, and Spain had to throw off the shackles of dictatorship in their domestic politics and rejoin the mainstream of Western European democracy, before they could be admitted to membership of the EU in the 1980s.

Furthermore, according to Adewoye[4] , the problem begins with the political philosophy of nations, which he argues is fundamentally different in Africa from Europe where a long tradition of ―constitutionalism‖ makes it easier to accept limits upon the exercise of power. This in turn has made it easier to engineer the sharing of sovereignty with regional levels of government and justice in Europe than in Africa. Supra-nationality in Africa is therefore unlikely to materialize in a significant way until constitutionalism itself becomes more strongly entrenched at the national level. Adewoye5 advocates using the ECOWAS framework itself as a tool for promoting constitutionalism, through the operation of a tribunal, as foreseen in the revised ECOWAS Treaty, which might become increasingly capable of enforcing human rights and checking abuses of power by national governments.

Thoughtful and incisive as these postulations are, there is the need to lend cognisance to the fact that conditions in the sub-region are strikingly different from those that exist in a Europe which was already relatively industrialised, before it embarked on regional integration anchored on constitutionalism. It must be noted that there are problems that may be unique to countries and regions at various stages of development. Some of these challenges range from the presence of unsustainable states, near failing states, corruption, ethnic and religious intolerance, genocide and military rapaciousness, mostly exacerbated by poverty and weak institutions. It will therefore hold that constitutionalism, standing alone, would not address adequately, all problems or challenges to regional economic integration.

Additionally, considerable note was not taken of the fact that the objective of economic integration in developed regions such as the European Union differs from those of developing states. In the former, the objective is to maintain and enhance already existing economic growth, whereas, in the latter, such as ECOWAS, the ultimate purpose is either to achieve an acceleration of economic growth in member states given the scarce resources available or maintain the same rate of growth as before integration, but at a lower cost in term of use of scarce resources.

It is widely recognized that existing regional institutions will not succeed until the principle of supra-nationality is firmly established, as increasingly seems to be the intent with the signing of the Abuja Treaty, the revised ECOWAS Treaty, and the West African Economic and Monetary Union (UEMOA) Treaty. Each of these projects involves movement in the direction of increased supra-nationality through the creation of a regional parliament, the strengthening of a regional tribunal or court of justice, and some move away from rule by consensus, toward qualified majority rule.

Emelonye, U.[5] in a further reaffirmation of the role of constitutionalism in regional development, states that rule of law hinges relationship between state and citizens around an accepted set of political values and rules, and identifies a fair, impartial, and accessible justice system and a representative government as key elements of the rule of law. He opines that it has been applied to mean independent, efficient, and accessible judicial and legal systems, with a government that applies fair and equitable laws equally, consistently and coherently to its entire people.

Emelonye[6] , quoted Lord Ashdown, as stating that ―… in hindsight, we should have put the establishment of the rule of law first, for everything else depends on it: a functioning economy, a free and fair political system, the development of civil society, public confidence in the police and the courts.‖ This view, though widely shared by many stakeholders is subject to multiplicity of interpretations and definitions.

There is the need to state or provide for how ‗public confidence in … the courts‘ could be attained, particularly as it has come to be realised that loss of confidence in the justice system in the main, accounts for a resort to self-help or mass action leading to political and social instability. It is my submission that it is imperative for the judiciary to be sensitive to its environment, if the concept of the rule of law upon which all other things depend, is to be realised. It is not only the judiciary that should show sensitivity to the political environment. Every institution, including and especially the civilian political elite, should exhibit this sensitivity. The civilian political elite tend to emphasise their absolute right to rule. I believe that while it is right, it must take cognisance of the existence of a military institution that has tasted political blood. This means that the right to rule should be accompanied by an equal recognition of the fragility of the political system within which they are operating. For example, a settled and long established political system can withstand winter of discontent marked by crippling strikes or a shutdown of government because of conflict with the legislature over the budget. But in a developing political system, such tactics is tantamount to inviting a willing and eager military establishment to become politically active.

Constitutionalism therefore, must presuppose a democratic approach, an attitude of give-andtake in public affairs, sense of accountability, readiness to accept the limitation of power and to do justice. Progressive sharing of sovereignty is required to achieve the greater common good. Integration requires governments to forego some of their sovereign powers, in both the political and economic spheres, in order to achieve more prosperous, stable, democratic and powerful sub-regional collectiveness.

Ntumba[7] in his contribution, observes that at the Community level, constitutionalism manifests itself in various ways and degrees, through regulations (which are applied directly throughout the community), decisions (which are binding on the member states, companies, or individuals) which set down compulsory objectives but leave their implementation to the discretion of the member states, or recommendations and opinions (which are not binding except where they are equivalent to directive). It must however, be realised that leaving implementation of compulsory objectives to the discretion of member states which have leaders with diverse mindsets and varying levels of commitments to the sub-regional body would only lead to an unsatisfactory end. There is therefore the need for an enforcing mechanism for the implementation of compulsory objectives, particularly as the average African statesman is a personal ruler more than a constitutional and institutional one; and ruled by his ability and skill, personal power and legitimacy, and not solely by the title granted to him by the office he occupied and the constitution that defined it.

Nwabueze,[8] is of the view that the near-absence or infancy-state of constitutionalism in SubSaharan Africa constitutes a measure of challenge confronting West Africa in her efforts at economic integration. Further works by Nwabueze[9] and Ajayi[10] revealed that the difficulty of establishing constitutionalism as a mode of governance in black Africa has been compounded by three factors, namely;

African traditions and jurisprudence have little in them to reinforce constitutionalism, as African law was intertwined with socio-cultural and ethical norm. African perception of society was fundamentally different from the European one. Whereas European theories of society emphasis the role of the individual, African societies stress the role of close-knit social formations, and the supremacy of consensus (not law) as the measure of ordering public af-
fairs.

The colonial rulers did little to promote constitutionalism in West Africa. Colonial legislatures were devoid of any effective voice or responsibility until fairly late in the colonial period, therefore denying Africans the full opportunity of practicing parliamentary democracy. Nigeria for example, had less than a decade of apprenticeship in parliamentary democracy, after approximately 100 years of colonial rule. It was therefore not possible to develop adequately, the collective consciousness of political accountability essential for constitutional rule.
Africa‘s feeling of urgency about the need for development, turned it into a continent in a hurry. Development became the political religion of the ruling elite and a handy excuse for throwing constitutionalism to the winds and stifling the voices of opposition and dissent.
It must be stated however that whatever the downside to colonisation, it enhanced development through the setting up of the armed services, building of public utilities and social infrastructures and gave a political system to pilot the ship of state. The judiciary, civil service, educational institutions, prison system, industrial estates, plantations, commodities boards, organised import and export trade, oil and manufacturing industries and transport systems such as the railways, aerodromes and road networks are legacies of the colonial system. Okotie, C.12 states that the blame for the breakdown or failure of these legacies, rest squarely on West Africans themselves, who have been unable to build on these legacies and account in part, to the inability to achieve the economic integration objectives of the sub-regional body. Across the West African board, particularly in Nigeria, one cannot point to any single institution that is in a state of operational excellence, and what led to this state of decay lies in our attitudes to maintenance. Otherwise, West Africans are better placed in spite of our late arrival on the constitutional plain, to achieve regional economic integration using our innate

‗close-knit social formations and supremacy of consensus approach‘, as highlighted by Nwabueze and Ajayi.13

West Africa‘s deficit of constitutionalism has no doubt, undermined the process of regional economic integration in more ways than one. Just as the habit of shared power has facilitated the transition to supranational forms of authority in Europe, so its absence in West Africa has undermined that process. A system of governance that is devoid of defined mechanisms and

1212Okotie, C. [2013] Before the Centenary Celebration. Thisday Newspaper, Friday 22 February, Backpage.13 Ibid

structures of drastically alleviating poverty and enhancing participatory representation and strengthening institutions of governance, undermines the kind of consistent political commitment and long term legitimacy that regional integration demands, because a change of ruler is sufficient to undermine agreements arrived at by his predecessor. Concentration of power also makes it difficult to promote healthy intergovernmental relations at levels other than the very top.

Unlike the European Union, the West African sub-region lacks the atmosphere of predictable laws and institutions necessary to the stability and independence of the private sector which explains the success of European Union‘s transnational enterprises. The absence of predictability and the difficulties associated with contract enforcement, in particular makes regional economic ventures risky. Ojo[11] argues that this accounts for why most indigenous economic institutions and enterprises remain locked within existing national boundaries, awaiting the day when the sub-regional atmosphere, in terms of constitutional practices, will be conducive to trans-border expansion.

1.3 Statement of the Problem
Arising from the literature review in 1.2 are the following problems of research.

First, is the challenge of political instability and bad governance which plagues many member states. The lack of political maturity manifested through unbridled personal political ambition on the part of the leaders of some member states accounts largely for the political instability which have been a characteristic feature of the region over the past two decades even in hitherto stable countries. In Cote d‘Ivoire, the organisation of elections, which was to be a democratic process, exacerbated social tensions and provoked confrontations, which left many dead and many more wounded. The current tension along the borders between Guinea, Liberia and Sierra Leone is part of the fallout from the civil conflict in the Mano River Union area. When law and order breaks down in one State, the effect spills over into the adjoining states, bringing civil upheaval in its wake. These recent civil wars and other political unrest in some West African states have forcefully revealed the need for social and political stability in the development process. Political instability (sudden, unconstitutional or violent change in government) most often have a negative bearing on the integration process, and sanctions and retaliatory measures by a target country may and do usually have adverse consequences for the community‘s industrial production, trade liberalisation and factor movement in general.

Secondly, one of the most conspicuous characteristics of the trade linkage between ECOWAS member countries and with the rest of the world is the high dependence on primary commodity and its natural resource-based structure, which has turned these countries into primary producers of agricultural products, making them low-income countries with the consequent experience of being locked in an international poverty trap. The region has therefore, remained economically weak and politically unstable. For instance, Cote d‘Ivoire and

Nigeria‘s economy depend mainly on the exportation of cocoa and crude oil respectively. This weak economic base, has invariably resulted in structural economic incapacity, compounded by low purchasing power of the population which (barring Nigeria) in most cases, are small. This state of affairs led to a state of dependence on support/aids from external organisations with various attendant consequences of uneven development, economic stagnation, unemployment and deepening poverty.

The failure of ECOWAS member countries to diversify and undergo structural transformation, and hence to benefit from the technology-driven, highly dynamic aspects of the ongoing globalization process, has led to major drawbacks in terms of low economic growth and persistent poverty.

While it has become almost universally accepted that sustained poverty reduction requires economic growth, the pattern of growth, significantly affect the rate of poverty reduction.

Thirdly, is the challenge of the absence of reliable infrastructure and the multiplicity of organizations for regional integration within the sub-region. Several ECOWAS member countries[12] are concurrently part of the West African Monetary Union (UEMOA), a regional economic and monetary union that shares a common currency (the CFA Franc).[13]

For these reasons, a synthesis for sustainable development, growth, and stability in the subregion is needed now more than ever.

1.4 Objectives of the Research
The objective of this work is to find answers or solutions to the problems of research. This research highlights the imperatives of economic integration of the 15 economies of the subregion as a necessary mechanism for enhancing competitive participation in global trade and the current policy environment for economic growth. The goal of this study also include: First, an outline of the impediments to trade within the sub-region such as lack of adequate infrastructure to support export-oriented activities.

Second, to examine the ECOWAS Treaty.
An examination of the application of the ECOWAS Treaty to the various imperatives of cooperation and integration of the economies of the member states.
Showing the negative impact of poverty and political instability on the development process in the West African sub-region.
Stimulating policy makers and legislators in the sub-region, particularly ECOWAS Parliamentarians, to negotiate for the enactment of further legislation which will assist in the reduction of intra-regional trade barriers.
To making relevant findings as to the problems and challenges militating against the full realisation of the various economic integration initiatives.
Making appropriate recommendations, with a view to revitalising ECOWAS with realistic and relevant benefits to its peoples.
1.5 Scope of Study
The scope of this work is determined by the statement of the problem and the objectives of research. Accordingly, the research focussed on issues that resolve its problems and advance its objectives. Any issue that does not help the resolution of the problems of research or attainment of the objectives was not considered, and if considered, only incidentally.

1.6 Research Methodology
This study is conducted as a historical research, with limited degree of doctrinal. In the course of this work, the researcher consulted and analyzed available literature, and official ECOWAS documents and statistics at the ECOWAS Commission, Abuja, Nigeria.

Additionally, informal interviews were used to capture the views of Scholars, Customs and immigration officers and business peoples and travellers. The focus of the informal interviews hinged on the perception of the goals, benefits and problems of regional integration in West Africa, the attitudes of member states toward regional programmes, as well as political, economic and legal issues hindering the ECOWAS integration process.

Efforts are made to measure the actual achievements by these agencies against the mandates placed as objectives of the ECOWAS as a means of ground-truthing the success or otherwise of ECOWAS as a body for integration for the sub-region.

1.7 Justification
This research is primarily justified by the problems and objectives of research. It is secondarily justified by its relevance to law students and lecturers, to ECOWAS itself and the general reading public with interest in legal matters related to ECOWAS.

1.8 Organisational Layout
The first chapter of this work dwells on such introductory matters as, background to the study, review of literature, the research problem, objective of the research, scope of study as well as the organisational layout.

Chapter two analyses the origin and development of the concept of economic integration. It also sets out the various institutional foundations of the interstate approach to economic integration, and the legal aspects of the concept under the ECOWAS treaty.

Chapter three examines the concept and practice of economic integration under international law especially in relation to ECOWAS treaty and the impact of the law on the various ECOWAS integration initiatives and the challenges to the trade expansion programmes of member states.

Chapter four is concerned with the discourse of problems and prospects of economic integration.

Chapter five is the concluding chapter of the research work. In this chapter, the entire work is summarised, the various findings highlighted and recommendations proffered.

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AN APPRAISAL OF THE CONCEPT AND PRACTICE OF ECONOMIC INTEGRATION UNDER INTERNATIONAL LAW: A CASE STUDY OF ECOWAS