Abstract
This chapter seeks to benchmark SADC against other regional economic integration arrangements. Three organisations have been chosen as comparators: the East African Community (EAC), the Economic Community of West African States (ECOWAS), and the European Union (EU). The EAC and ECOWAS are particularly relevant comparators because of their political and socio-economic similarities with SADC. The choice of the EU on the other hand, the different political and socio-economic underpinnings notwithstanding, is based on the fact that the EU has evolved over time, and so far has the deepest regional integration framework the world over.
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Notes
- 1.
See, for example, J.M. Smits ‘Redefining normative legal science: Towards an argumentative discipline’ in F. Coomans et al. (eds) Methods of human rights research (2009) 52, 54.
- 2.
Smits (Footnote 1 above) 52.
- 3.
Schermers & Blokker succinctly note, in their justification for their comparative study methodology, that ‘[a]lthough each (international) organization has its own legal order, institutional problems and rules of different organizations are often more or less the same and, in practice, an impressive body of institutional rules has developed.’ See H.G. Schermers & N.M. Blokker International institutional law: Unity within diversity (2011) vi. The authors buttress this point at p. 27 by noting that ‘[i]nstitutional law does not differ dramatically from one organization to the next,’ particularly with regards to institutional legal matters. At p. 30, they argue that even where there are clear differences in the institutional law of different organisations (e.g. some aspects of EU law are close to municipal law), a comparative analysis ‘may contain lessons for other organizations’ or may ‘indicate possible directions for the future development of the law of these organizations.’
- 4.
See the observations by Schermers & Blokker in this regard (Footnote 3 above). See also J. Klabbers An introduction to international institutional law (2009) 13.
- 5.
See art 6 of the EAC Treaty; art 4 of the Revised Treaty of ECOWAS; Para 5 of the preamble to the Treaty on European Union and art 2 of same. These instruments are available at http://www.google.co.za/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&sqi=2&ved=0CCIQFjAB&url=http%3A%2F%2Fwww.eac.int%2Fnews%2Findex.php%3Foption%3Dcom_docman%26task%3Ddoc_download%26gid%3D11%26Itemid%3D70&ei=94HLVOfTL7Kv7AblroHIBQ&usg=AFQjCNErqCYJxlgaoiWJcd_G64cHz8Ft5w (last accessed 30 January 2015); http://www.comm.ecowas.int/sec/?id=treaty&lang=en (last accessed 30 January 2015); and http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2012.326.01.0001.01.ENG#C_2012326EN.01001301 (last accessed 7 August 2014) respectively.
- 6.
For a discussion of the comparative approach of looking at regionalism, see L.V. Langenhove ‘Why we need to “unpack” regions to compare them more effectively’ in L. Fioramonti (ed) Regionalism in a changing world: Comparative Perspectives in the new global order (2013) 25. Langenhove refers to G. Morgan The idea of a European superstate (2005) Princeton University Press, New Jersey, who makes use of three distinct comparative tools: processes, projects, and products. In this context, processes include the historical development of a certain region; the projects include the visions behind the development of a region; the products are the treaties, institutions and practices of a region.
- 7.
For a similar remark on the uniqueness of international organisations, see Schermers & Blokker in the preface to their book (Footnote 3 above) v, para 2.
- 8.
Schermers & Blokker (Footnote 3 above) paras 3.
- 9.
Schermers & Blokker (Footnote 3 above) vi.
- 10.
See, for example, N. Krisch Beyond constitutionalism : The pluralist structure of postnational law (2010) 7 and the reference thereunder; H.P. Hestermeyer ‘The implementation of European Union law,’ an unpublished and unpaginated paper presented at the workshop The Implementation of International Law in South Africa – Strengthening the Rule of Law by Following the German Model? 16–17 May 2014, Faculty of Law, University of Pretoria, in cooperation with the Max Planck Institute for Comparative Public and International Law, the Konrad Adenauer Stiftung/Foundation & the Alexander von Humboldt Stiftung/Foundation.
- 11.
J. Habermas ‘The crisis of the European Union in the light of a constitutionalization of international law (2012) 23 # 2 The European Journal of International law 342 http://www.ejil.org/pdfs/23/2/2211.pdf (accessed 16 July 2013).
- 12.
Kufuor is particularly scathing in his attack of the recommendations of the Committee of Eminent Persons (CEP) that was set up to review the 1975 ECOWAS Treaty. According to Kufuor, the CEP, in allowing itself to be also guided by the EU model, evidently did not come ‘to grips with the dynamics of the European supranational process.’ See K.O. Kufuor, in The institutional evolution of the Economic Community of West African States (2006) 59.
- 13.
The historical material on the EAC below is largely derived from S.E.A. Mvungi ‘Constitutional questions in the regional integration process: The case of the Southern African Development Community with reference to the EU’ unpublished doctoral thesis, Hamburg University (1995) 108–119. Also, the preamble to the East African Treaty itself provides a detailed historical background of East African integration. The Treaty is available at http://www.afrimap.org/english/images/treaty/EACTreaty.pdf (accessed 4 October 2013).
- 14.
Mvungi (Footnote 13 above) 113.
- 15.
This argument is advanced by, for example, P. Draper ‘Breaking free from Europe: Why Africa needs another model of regional integration’ (2012) 47 # 1 The International Spectator: Italian Journal of International Affairs 68. For an argument similar to the one made by Draper, See A. Acharya ‘Comparative regionalism: A field whose time has come?’ in L. Fioramonti (ed) Regionalism in a changing world: Comparative perspectives in the new global order (2013) 12. According to Acharya, regional integration is a ‘distinctly Western European idea.’
- 16.
http://www.eac.int/index.php?option=com_content&view=article&id=1:welcome-to-eac&catid=34:body-text-area&Itemid=53 (last accessed 28 September 2013). South Sudan joined the EAC in 2016, bringing the current membership of the EAC to six countries.
- 17.
Art 3(3) of the EAC Treaty.
- 18.
Art 10 paras 1 & 2 of the EAC Treaty respectively.
- 19.
Art 11 paras 1–3 of the EAC Treaty.
- 20.
Art 11(5) of the EAC Treaty.
- 21.
Art 11(6) of the EAC Treaty.
- 22.
Art 11(9) of the EAC Treaty.
- 23.
Art 13 of the EAC Treaty. In practice, the configuration of the Council is not static. Save for the ministers responsible for EAC affairs, each Partner State sends different ministers to Council meetings as informed by the agenda of the meetings. See Mwatela v East African Community (Application No.1 2006, decided on 1 October 2006), para 23. As observed by the EACJ in para 39 of the judgment, it is difficult to ascertain the total membership of the Council. The Court urged that a more transparent system of setting out the composition of Council should be put in place to avoid uncertainty which might lead to legal disputes. See a related argument in Chap. 2, Sect. 2.3 in relation to the SADC CoM.
- 24.
Art 14(1) of the EAC Treaty.
- 25.
Art 14(2) of the EAC Treaty.
- 26.
For the powers of the Council, see generally art 14 of the EAC Treaty.
- 27.
In terms of art 16 of the EAC Treaty, the regulations, directives, decisions and recommendations of the Council have a general binding effect on the Partner States in their domestic jurisdictions; on all organs and institutions of EAC (other than the Summit, the Court and the Assembly); and on those to whom they may be addressed.
- 28.
Art 14(3)(i) of the EAC Treaty. According to this provision, only members of the Council can sit on the Sectoral Council. This was affirmed by the EACJ in Mwatela (Footnote 23 above) in para 34. The Court reasoned that the rationale of this provision was to ‘avoid distortion of the elaborate structural hierarchy of representation of the Partner States at different levels in the organizational framework of the Community … (which might defeat the) objective of separation of functions’ between the different organs. Also, in terms of the same provision, the decisions of the Sectoral Council are deemed to be those of the Council.
- 29.
Art 14(3)(k) of the EAC Treaty.
- 30.
Art14(4) of the Treaty.
- 31.
This position was affirmed by the EACJ in Mwatela (Footnote 23 above), although the Court did not specifically engage the separation of powers doctrine. The Court held that the ‘decisions of the Council have no place in areas of jurisdictions of the Summit, the Court and the Assembly.’ See para 54 of the Mwatela judgment.
- 32.
Art 17 of the EAC Treaty.
- 33.
Notwithstanding this broad deferral provision on the establishment of Sectoral Committees, art 21 of the EAC Treaty goes on to provide ‘pre-determined’ functions of the Sectoral Committees including preparation of a comprehensive implementation programme and setting out priorities for each sector.
- 34.
Art 66 of the EAC Treaty.
- 35.
Art 71(1) of the EAC Treaty. It is interesting to note that the Secretariat is also specifically obligated to establish ‘practical working relations with the Court and the Assembly.’ The spirit of the Treaty appears to be that of the development of the EAC by all organs in concert, their different roles and functions notwithstanding.
- 36.
Art 67(1) of the EAC Treaty.
- 37.
Art 68(2) of the EAC Treaty.
- 38.
Art 67(3)(d) of the EAC Treaty.
- 39.
Art 67(3)(d) of the EAC Treaty.
- 40.
Art 48(1) of the EAC Treaty.
- 41.
Art 49 of the EAC Treaty.
- 42.
Art 50(1) of the EAC Treaty.
- 43.
Art 52 of the EAC Treaty.
- 44.
It would appear that the EALA’s powers are not just paper powers. It has to date passed a number of community acts and approved EAC budgets for a number of financial years. See T. Musavengana The proposed SADC parliament: Old wine in new bottles or an ideal whose time has come? (2011) 49, 50. In Mwatela (Footnote 23 above), the EACJ affirmed the right of any member of the Assembly to introduce a Bill (except those specifically proscribed by the Treaty) and categorically held that ‘Council does not have exclusive legislative initiative in the introduction (and withdrawal) of Bills in the Assembly.’ See para 44 of the Mwatela judgment.
- 45.
The meaning of ‘discussing and approving the Bill’ is not clear. It could be interpreted to mean approving the Bill as initially passed or approving the Bill as amended.
- 46.
Art 24 of the EAC Treaty.
- 47.
Art 26 of the EAC Treaty. This article also provides for suspension of judges under investigation and appointment of temporary judges, among other ancillary matters.
- 48.
This ground for suspension/removal from office was introduced by one of the several amendments to the EAC Treaty that came into effect in March 2007. A detailed discussion of these amendments is found towards the end of this section below.
- 49.
Art 27(1) of the EAC Treaty.
- 50.
Art 27(2) of the EAC Treaty.
- 51.
Art 29 of the EAC Treaty.
- 52.
Art 30(1) of the EAC Treaty.
- 53.
Art 30(3) of the EAC Treaty. This para was also brought in by the amendments that came into force in March 2007 to be discussed in detail in below.
- 54.
Art 30(2) of the EAC Treaty. Just like art 30(3) above, this para was also brought in through the amendments that came into effect in March 2007, to be discussed in detail below.
- 55.
Art 31 of the EAC Treaty.
- 56.
Art 33 of the EAC Treaty.
- 57.
In terms of art 38, any dispute concerning the interpretation or application of the EAC Treaty or any of the matters referred to the Court shall not be subjected to any method of settlement other than those provided for in the EAC Treaty. This article also prohibits conduct by Partner States which might be detrimental to the resolution of the dispute or might aggravate the dispute. It also obligates Partner States or the Council to take, without delay, measures required to implement a judgment of the Court.
- 58.
E.S. Nwauche ‘The ECOWAS Community Court of Justice and the horizontal application of human rights’ (2013) 13 African Human Rights Law Journal 55.
- 59.
See generally the EACJ’s decision in Sitenda Sebalu v Secretary General of EAC (Reference 1 of 2010, decided on 30 June 2010); Nwauche (Footnote 58 above) where he makes reference to the EACJ’s decision in Sebalu; H.S. Adjolohoun ‘Giving effect to human rights jurisprudence of the Court of Justice of the Economic Community of West African States: Compliance and influence’ unpublished LLD thesis, University of Pretoria (2013) 119.
- 60.
See above.
- 61.
Katabazi and Others v Secretary-General of the East African Community and another (2007) AHRLR 119 (EACJ Reference 1 of 2007, decided on 1 November 2007) http://www1.chr.up.ac.za/index.php/browse-by-subject/485-uganda-katabazi-and-others-v-secretary-general-of-the-east-african-community-and-another-2007-ahrlr-119-eac-2007.html (accessed 17 December 2013); Independent Medical Unit v Attorney General of Kenya (Reference no 3 of 2010, decided on 29 June 2011) http://www.worldcourts.com/eacj/eng/decisions/2011.06.29_Independent_Medical_Unit_v_Attorney_General.pdf (last accessed 10 July 2014); Attorney General of Kenya v Independent Medical Legal Unit (Appeal 1 of 2011, decided on 15 March 2012) http://www.eacj.org/docs/judgements/Attorney-Gen-of-Kenya-v-IMLU-15-03-2012.pdf (accessed 17 December 2013); Attorney General of the Republic of Rwanda v Rugumba (Appeal 1 of 2012, decided on 4 July 2012); http://www.eacj.org/docs/judgements/Plaxeda-Rugumba-Vs-AG-Rwanda.doc (accessed 17 December 2013). For an interesting discussion of these cases in the context of horizontal application of human rights and the ‘dual’ jurisdictions of the EAC, ECOWAS, and SADC regional courts, see generally, Nwauche (Footnote 58 above).
- 62.
Attorney General of Kenya v Independent Medical Legal Unit (Footnote 61 above).
- 63.
S.T. Ebobrah ‘Litigating human rights before sub-regional courts in Africa: Prospects and challenges’ (2009) 17 African Journal of International and Comparative Law 82.
- 64.
For a detailed and incisive discussion of the amendments, their background and implications, see generally H. Onoria ‘Botched-up elections, treaty amendments and judicial independence in the East African Community’ (2010) 54 # 1 Journal of African Law 74.
- 65.
The amendments were not only made in haste but also, as correctly held by the EACJ in para 61 of East African Law Society & 3 others v Attorney General of the Republic of Kenya & 4 others Reference no 3 of 2007 (decided on 9 September 2008), with no ‘serious’ and ‘widespread’ consultations with stakeholders in the Partner States. Within just a week of the Summit meeting that condemned the EACJ in Prof Peter Anyang’ Nyong’o & 10 others v Attorney General of Kenya & 2 others (Reference 1 of 2006 decided on 30 March 2007), a ruling that triggered the amendments, the staff of the attorneys general of then Partner States and the EAC Secretariat had finalised the draft amendments. The draft carrying the amendments was approved by the attorneys general within two days of their finalisation by their respective staff and the EAC Secretariat and was adopted by the Council of Ministers a day after their approval by the attorneys general. This was followed by the submission of the proposed amendments by the Secretary General of the EAC to the Partner States and receipt of the replies by the latter (the replies were effectively those of the cabinets of the Partner States) by the former, after which the amendments were adopted by the Summit. The amendments were then ratified by Kenya within six weeks (early January 2007) of the EACJ’s ruling in November the previous year, followed by the ratifications by Uganda and Tanzania in February and March 2007 respectively. See Onoria (Footnote 64 above) 90, 91. See also para 5 of East African Law Society & 3 others v Attorney General of the Republic of Kenya & 4 others. In fact, the EACJ, in setting out the background of the case, described the processes leading up to the adoption of the amendments as ‘a flurry of activity.’
- 66.
Art 30(3) of the EAC Treaty.
- 67.
Art 30(2) of the EAC Treaty.
- 68.
East African Law Society & 3 others v Attorney General of the Republic of Kenya & 4 others (Footnote 65 above) 45. See also Onoria (Footnote 64 above) 83–86.
- 69.
Onoria (Footnote 64 above). See Footnote 65 above for the citation of the Prof Peter Anyang’ Nyong’o case.
- 70.
East African Law Society case (Footnote 65 above) 2. See also generally the Prof Peter Anyang’ Nyong’o case (Footnote 65 above).
- 71.
Onoria (Footnote 64 above) 80. See also the reference thereunder.
- 72.
See Onoria (Footnote 64 above) 80, 81.
- 73.
See also Onoria (Footnote 64 above) 85, 86.
- 74.
Onoria (Footnote 64 above) 84. Onoria does not attack the principle of a two-tier system though. He views the new system, without elaboration, as ‘laudable.’ His concern is the timing of its creation, which he calls ‘suspect.’
- 75.
The participation of (now former) President Kikwete of Tanzania in the two discredited processes of the EAC 2007 amendments and in the dissolution of the SADC Tribunal (with regards to the latter, President Kikwete is said to have called the SADC Tribunal a ‘monster that will devour us all’ at the time of its creation when he was still Tanzania’s minister of Foreign Affairs [http://www.mg.co.za/article/2011-08-19-killed-off-by-kings-and-potentates (accessed 1 October 2013)]) is something that should not be taken lightly, especially in view of the fact that in both these processes, it was the judicial organ that was crudely dealt with politically.
- 76.
However, according to Professor John Ruhangisa (Registrar of the EACJ) in his presentation at a stakeholder roundtable discussion on the SADC Tribunal that was convened by the Centre for Human Rights, Faculty of Law, University of Pretoria (28–29 August 2014), (and notwithstanding the limited powers bestowed on the EAC secretariat including the Secretary General), the EAC Secretary General (the incumbent at the time of the above roundtable discussion) has been able to exact pressure on some of the Partner States like Burundi to address concerns of good governance and the rule of law. The author was a participant and facilitator at that roundtable discussion.
- 77.
Kufuor (Footnote 12 above) 20.
- 78.
As above.
- 79.
As above.
- 80.
As above.
- 81.
Kufuor (Footnote 12 above) 21.
- 82.
As above.
- 83.
S.T. Ebobrah ‘Legitimacy and feasibility of human rights realisation through regional economic communities in Africa: The case of the Economic Community of West African States’ unpublished LLD thesis, University of Pretoria (2009) 2.
- 84.
http://www.comm.ecowas.int/sec/index.php?id=treaty&lang=en (last accessed 29 September 2013).
- 85.
Kufuor (Footnote 12 above) 29.
- 86.
This condensed (and rephrased) summary of the findings of the Committee of Eminent Persons is derived from Kufuor (Footnote 12 above) 29–32.
- 87.
Art 2(1) of the ECOWAS Treaty.
- 88.
Art 6 of the ECOWAS Treaty.
- 89.
Art 7 of the ECOWAS Treaty.
- 90.
Art 7 (3) (g) of the ECOWAS Treaty.
- 91.
Art 9(2) of the ECOWAS Treaty. These methods of decision-making were deferred to a protocol pending which the ECOWAS Authority would take all its decisions by consensus. See para 3 of art 9 of the ECOWAS Treaty. A similar provision is applicable to the regulations adopted by the ECOWAS Council [art 12(3)]. Decisions of the ECOWAS Authority and the regulations made by the ECOWAS Council are supposed to be published in the official journal of the Community. This is similar to what obtains in the EAC.
- 92.
Arts 13–16 of the ECOWAS Treaty. Curiously, the Arbitration Tribunal is not specifically mentioned as one of the institutions of ECOWAS in art 6 of the ECOWAS Treaty.
- 93.
http://www.comm.ecowas.int/ (accessed 10 October 2013).
- 94.
Art 22(1) of the ECOWAS Treaty.
- 95.
Art 22(1) of the ECOWAS Treaty.
- 96.
Art 23(a) of the ECOWAS Treaty.
- 97.
Art 23 paras (a)–(d).
- 98.
Art 81 of the ECOWAS Treaty.
- 99.
Art 82 of the ECOWAS Treaty.
- 100.
R. Robert ‘The social dimension of regional integration in ECOWAS’ (2004) Working paper No. 49 Policy Integration Department, International Labour Office 12.
- 101.
The Protocol is available at http://caselaw.ihrda.org/1991_prot-eco/ (accessed 26 February 2014).
- 102.
Art 9(3) of the 1991 Protocol on the Community Court of Justice.
- 103.
See generally, Olajide Afolabi v Federal Republic of Nigeria 2004/EWC/CCJ/04 (decided on 27 April 2004) http://caselaw.ihrda.org/doc/ecw.ccj.jud.01.04/view/ (last accessed 12 September 2014). See also Robert (Footnote 100 above) 13.
- 104.
As above.
- 105.
Robert (Footnote 100 above) 13.
- 106.
Nwauche (Footnote 58 above) 40. The Supplementary Protocol is available at http://www.caselaw.ihrda.org/doc/2005_prot_eco/ (accessed 26 February 2014).
- 107.
Three cases that have been decided by the ECCJ are instructive and would suffice for the present purposes: Peter David v Ambassador Ralph Uwechue (ECW/CCJ/RUL/03/10); The Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) v The President of the Republic of Nigeria (ECW/CCJ/APP/07/10, delivered on 10 December 2010 http://www.worldcourts.com/ecowasccj/eng/decisions/2010.12.10_SERAP_v_Nigeria.htm, last accessed 12 September 2014): and Tandja v Djibo and Another (ECW/CCJ/05/10, decided on 8 November 2010 http://www.courtecowas.org/site2012/pdf_files/decisions/judgements/2010/MONSIEUR_MAMADOU_TANDJA_v_S_E_GEN_SALOU_DJIBO_&_L_ETAT_DU_NIGER.pdf (accessed 12 September 2014). For a brief discussion of these cases see Nwauche (Footnote 58 above) 30–31.
- 108.
The application of the African Charter is based on art 4 of the ECOWAS Treaty and also on the Protocol on Democracy and Good Governance. For a detailed discussion on the applicability of the African Charter and other international human rights instruments see Nwauche (Footnote 58 above) 42–44.
- 109.
- 110.
New art 17 of the Revised ECOWAS Treaty.
- 111.
New art 22 (1) (a).
- 112.
New art 18 (1) & (3) (a).
- 113.
New art 18 (3) (d).
- 114.
As above.
- 115.
- 116.
The wording of the second and third paras of art 4 is not very clear. Art 4(2) states that ‘[t]he powers of the ECOWAS Parliament shall be progressively enhanced from advisory to co-decision making (co-decision making is itself not defined) and subsequently to a law making role in areas to be defined by the Authority.’ Art 4 (3) provides that pending direct universal suffrage, ‘the ECOWAS Parliament may be consulted for its opinion on matters concerning the Community.’ Art 4 (3) goes on to specify some areas where it is peremptory to seek the ECOWAS Parliament’s opinion. One way to interpret these two paras is to link the third to the second, thereby anchoring co-decision-making (whatever its meaning in the context of ECOWAS is) and lawmaking in universal suffrage. The other way to interpret the two paras would be to delink them. In terms of the latter construction, the ECOWAS Authority can enhance the powers of the ECOWAS Parliament in terms of art 4 (2), that is, by elevating the ECOWAS Parliament to the status of ‘co-decision’ maker, even in the absence of universal suffrage. Universal suffrage would then be confined only to art 4(3), the effect of which would be to make it peremptory to seek the opinion of the ECOWAS Parliament on every matter affecting the ECOWAS, over and above whatever additional powers it might then be having. Needless to say, the latter construction is a bit convoluted.
- 117.
Ebobrah (Footnote 83 above) 135.
- 118.
Ebobrah (Footnote 83 above) 167.
- 119.
There is no mention of the ECOWAS Parliament.
- 120.
Art 15 is the article that establishes the ECCJ. Art 15 (4) provides that ‘Judgments of the Court of Justice shall be binding on the Member States, the Institutions of the Community and on individuals and corporate bodies.’
- 121.
See Footnote 116 above.
- 122.
See ‘Constituents relations and outreach: Experience of the ECOWAS Parliament under reduced mandate and transition to legislative powers’ a presentation by Simon Odei-Mensah, fourth Deputy Speaker of ECOWAS Parliament. The presentation was made at Mount Meru Hotel, Arusha, Tanzania at a Parliamentary Exchange Workshop on the Institutional Strengthening of International Parliamentary Bodies. The workshop was held on 10–11 February 2015. Available at http://www.awepa.org/wp-content/uploads/2015/03/Hon-Osei-Mensah_ECOWAS-P-Outreach-and-Representation1.pdf (accessed 7 October 2015).
- 123.
For the analysis of this development, including an outline of the changes carried in this and the next two paragraphs, see generally L. Boré & F. Henkel ‘Disturbing a cosy balance? The ECOWAS Parliament’s rocky road to co-decision’ International Policy Analysis, Friedrich Ebert Stiftung, January 2015 available at http://library.fes.de/pdf-files/iez/11185.pdf (last accessed 16 April 2016).
- 124.
See generally, Boré & Henkel (Footnote 123 above).
- 125.
For a glimpse of the ECCJ’s judicial activity, see S.T. Ebobrah ‘Human rights developments in African sub-regional economic communities during 2012’ (2013) 13 # 1 African Human Rights Law Journal 191–213.
- 126.
Enforcement/implementation of the decisions of the ECJ still remains a significant challenge. See H.S. Adjolohoun (Footnote 59 above) 164–185.
- 127.
D.M. Curtin & I.F. Dekker ‘The European Union from Maastricht to Lisbon: Institutional and legal unity out of the shadows’ in P. Craig and G. De Búrca (eds) The evolution of EU law (2011) 155–185; P. Craig ‘Integration, democracy, and legitimacy’ in P. Craig and G. De Búrca (eds) The evolution of EU law (2011) 13; H.P. Hestermeyer (Footnote 10 above).
- 128.
See G. Marks et al. ‘European integration from the 1980s: State centric v. multi-level governance’ 1996 (34) # 3 Journal of Common Market Studies 342. Marks et al. point out the introduction of qualified decision-making in the Council and the increase of the powers of the EP as some of the major developments in EU evolution leading to an increase in the ‘scope and depth of policy-making.’
- 129.
Curtin & Dekker (Footnote 127 above) 156.
- 130.
As above.
- 131.
Direct effect, in the context of the EU is ‘the capacity of a norm to be applied in domestic court proceedings’ whereas the related doctrine of primacy means ‘the capacity of the norm of Union law to overrule inconsistent norms of national law in domestic court proceedings.’ See B. de Witte ‘Direct effect, primacy, and the nature of the legal order’ in P. Craig & G. de Búrca (eds) The evolution of EU law (2011) 323, 324. A brief discussion of the introduction of the doctrine of direct effect into EU law is found below where the CJEU is discussed.
- 132.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0013:0046:en:PDF (accessed 10 October 2013).
- 133.
Art 14(2) of TEU (Consolidated Version).
- 134.
As above.
- 135.
Art 15(2) of TEU (Consolidated Version).
- 136.
Art 15(1) of TEU (Consolidated Version). As if by design, there is a marked difference in institutional sequencing in the EAC, ECOWAS, and SADC Treaties on the one hand and the EU Treaty on the other. The former starts with the ‘all-important organ/institution’ of the heads of state or government and the latter starts with the parliamentary institution.
- 137.
As above.
- 138.
Art 15(5) of TEU (Consolidated Version).
- 139.
The system of having a permanent President of the European Council was introduced by the Lisbon Treaty which came into force on 1 December 2009. Prior to that, the President of the European Council (then an informal institution within the EU) was held, subject to a six-month system of rotation, by the head of state or government of the EU Member State that held the Presidency of the Council of the EU. See http://www.european-council.europa.eu/the-president/the-presidents-role; http://europa.eu/legislation_summaries/institutional_affairs/treaties/lisbon_treaty/ai0007_en.htm (both accessed 8 October 2014).
- 140.
Art 15(2) of TEU (Consolidated Version). In terms of art 235(1) of the TFEU, if the European Council takes decision by a vote, the President of the European Council and the President of the Commission do not take part in the vote.
- 141.
Art 15(6)(d) of TEU (Consolidated Version).
- 142.
Art 16(1) of TEU (Consolidated Version).
- 143.
Arts 16(2) & 16(6) of TEU (Consolidated Version). The wording of this provision appears to deliberately cast the decisions of the Council within the strict intergovernmental realm.
- 144.
Art 16(6) of TEU (Consolidated version).
- 145.
As above. Also specifically mentioned in the same article is the Foreign Affairs Council whose mandate is to ‘elaborate the Union’s external action on the basis of strategic guidelines laid down by the European Council to ensure that the Union’s action is consistent.’
- 146.
Art 17(1) of TEU (Consolidated Version).
- 147.
As above.
- 148.
Art 17(2) of TEU (Consolidated Version).
- 149.
Art 240 of the TFEU. This is the same body that services the European Council (art 235 of the TEU).
- 150.
Art 17(2) of TEU (Consolidated Version). On the question of independence, article 17(3) specifically provides that in carrying out its responsibilities, the Commission shall be completely independent and its members shall not seek or ‘take instructions from any Government or other institution, body, office or entity.’
- 151.
Art 17(4) of TEU (Consolidated Version).
- 152.
The maintenance of the status quo was apparently an act of appeasement to the Irish who had initially rejected the Lisbon Treaty in the first referendum in 2008. One of their areas of concern was the reduction of the size of the Commission which would have meant that larger countries would have maintained permanent seats on the Commission with the remaining seats being rotated among the smaller countries. See ‘EU Summit: Current Commission size extended to 2019: EU leaders vote to overrule Lisbon Treaty’s plan for reduction in the number of Commissioners’ European Voice, 22 May 2013 as updated on 23 April 2014 http://www.politico.eu/article/eu-summit-current-commission-size-extended-to-2019/ (accessed 26 April 2015). It should be noted though that the European Council did not overrule the Lisbon Treaty as alleged by this report since it acted within the discretionary powers bestowed upon it by the Treaty itself.
- 153.
Art 17(7) of TEU (Consolidated Version). While this provision suggests that the election of the Commission President should be a matter of consultation between the European Council and the EP, which consultation should be informed by the democratic outcome of the EP elections, it would appear that some EU heads of state have been of a different view and believe that the election of Commission President is a matter of European Council high politics. This is illustrated by the battle between the EP and some of the leading EU heads of state like Mrs. Angela Merkel, the German Chancellor and Mr. David Cameron, the British Prime Minster after the 2014 EP elections. While the majority coalition in the EP was in favour of Jean-Claude Juncker to be the next Commission President, some leaders including the German Chancellor, the British Prime Minister and the Swedish Prime Minister were prepared to ignore the views of the EP. See Spiegel Online International ‘The democratic deficit: Europeans vote, Merkel decides’ 2 June 2014 http://www.spiegel.de/international/germany/power-struggle-europts-between-european-parliament-and-eu-leaders-a-972870.html (accessed 19 February 2015). Whatever the different views on this issue may be, at least it is a good illustration of inter-institutional conversation (even if tension filled) at work. Indeed one could view it as a healthy democratic tension between indirect state-based legitimacy (represented by the European Council) and Europe-wide direct legitimacy (in the form of the EP).
- 154.
As above.
- 155.
As above.
- 156.
As above.
- 157.
As above.
- 158.
For a detailed discussion of the development and role of independent agencies in the EU, see M. Shapiro ‘Independent agencies’ in P. Craig & G. De Búrca (eds) The evolution of EU law (2011) 111–120.
- 159.
Shapiro (Footnote 158 above) 112, 115, & 119.
- 160.
Shapiro (Footnote 158 above) 112, 114.
- 161.
Shapiro (Footnote 158 above) 118.
- 162.
As above.
- 163.
Shapiro (Footnote 158 above) 111.
- 164.
Shapiro (Footnote 158 above) 112. See also the reference thereunder. The democratic legitimacy of the powers of the Aviation Safety Agency is apparently secured by stakeholder involvement, since (as Shapiro notes) it ‘is one of the few agencies whose procedures provide for extensive participation by non-governmental parties similar to US “notice and comment” rule-making.’
- 165.
Shapiro (Footnote 158 above) 112.
- 166.
http://europa.eu/legislation_summaries/glossary/comotology_en.htm (accessed 14 April 2014).
- 167.
As above.
- 168.
TEU (Consolidated Version).
- 169.
Art 19(2) of TEU (Consolidated Version). The Court of Justice is assisted by Advocates-General.
- 170.
As above. The further conditions are provided for in arts 253 and 254 of the Treaty on the Functioning of the European Union, including the requirement that the Judges and Advocates-General should possess qualifications required for appointment to the highest judicial offices in their respective countries or are jurisconsults of recognised competence http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0047:0199:en:PDF (accessed 12 October 2013).
- 171.
As above.
- 172.
Art 19(3) of TEU (Consolidated Version). However, art 24(1) of TEU (Consolidated Version) outs the jurisdiction of the Court in matters dealing with the Common Foreign and Security Policy.
- 173.
However, human rights jurisdiction was not proscribed either, as in the EAC.
- 174.
The Van Gend & Loos case, decided in 1963, is rarely absent in any scholarly article that discusses the role of the CJEU in the evolution of the EU. However, for a succinct summary of the background of the case, its salient facts and the reasoning of the (now) CJEU, see Hestermeyer (Footnote 10 above).
- 175.
Hestermeyer (Footnote 10 above).
- 176.
As above.
- 177.
As above. Other legal doctrines that have directed the ‘course of integration’ that were developed by the CJEU include: primacy; conformity; state liability; and proportionality. See C. Baudenbacher & M.J. Clifton ‘Courts of regional economic and political integration agreements’ in C.P.R. Romano et al. (eds) The Oxford handbook of international adjudication (2013) 255.
- 178.
Hestermeyer (Footnote 10 above).
- 179.
Art 1(1) of the Treaty on the Functioning of the European Union (Consolidated Version 2012). Art 1(2) of the same Treaty provides that the two Treaties (TEU and TFEU) shall be referred to as ‘the Treaties’ and have the same legal value.
- 180.
The EU budget-making process has been singled out for a detailed discussion for a number of reasons including that the procedure is clear and very detailed; almost all EU institutions are involved in the initial budget formulation stage; all major EU institutions are significantly involved in the eventual adoption of the budget; and there are several ways of reaching a consensus in the event of inter-institutional differences.
- 181.
Paras 1–8 of art 314 of the TFEU.
- 182.
It should be noted that in terms of art 314(2), the Commission may amend the draft budget during the procedure until the appointment of the Conciliation Committee in the event of disagreement between the EP and the Council.
- 183.
J. Neyer ‘Discourse and order in the EU: A deliberative approach to multi-level governance’ in EO Eriksen et al. (eds) European governance, deliberation and the quest for democratization (2003) 244 http://www.arena.uio.no (accessed 16 April 2014). See also the reference thereunder. This work is also available as a paper in Volume 41 of the Journal of Common Market Studies (2003).
- 184.
Craig (Footnote 127 above) 30.
- 185.
Craig (Footnote 127 above) 29.
- 186.
Craig (Footnote 127 above) 30.
- 187.
G. de Búrca ‘Developing democracy beyond the state’ (2007–2008) 46 Columbia Journal of Transnational Law 234.
- 188.
P. Draper, ‘Breaking free from Europe: Why Africa needs another model of regional integration’ (2012) 47 # 1 The International Spectator: Italian Journal of International Affairs 80.
- 189.
J. Habermas ‘The Crisis of the European Union in the light of a constitutionalization of international law (2012) 23 # 2 The European Journal of International law 345 http://www.ejil.org/pdfs/23/2/2211.pdf (accessed 16 July 2013).
- 190.
Baudenbacher & Clifton (Footnote 177 above) 272.
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Nyathi, M. (2019). Institutional Design of Regional Economic Communities: A Comparative Analysis. In: The Southern African Development Community and Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-76511-2_6
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