UPDATE: Regional Trade Agreements in Africa - A Historical and Bibliographic Report of ECOWAS and CEMAC

By Miarom Bégoto and Narcisse Djimbaye

Miarom Bégoto holds a bachelor's degree in private law from the University of N'Djaména (Chad) and two master's degrees in private law and public law, human rights option, from the University of Lyon 2 and Grenoble 2 (France). He teaches at the National School of Administration of Chad and has held senior positions in the Chadian administration, notably at the Ministry of Justice and the former Supreme Audit Institution, which became a chamber of the Supreme Court. Elected as a member of the African Union's Advisory Council on Corruption, he led the institution from 2017 to 2021. Mr. Bégoto is currently a Governance Consultant and Civil Administrator at the General Secretariat of the Government of Chad.

Narcisse Djimbaye holds a master's degree in private law from the University of N'Djamena (Chad) and two master's degrees: one in law, management, economics, with a specialization in public administration, from the Université Lumière Lyon 2/France, and the other in intellectual property law and new technologies, obtained at the University of Yaoundé II. He is also a former student of the International Cycle of the Regional Institute of Administration (CiIRA) of Lyon. He is today a magistrate and judge at the N'Djamena commercial court.

Published September/October 2023

(Previously updated by Victor Essien in September 2014 and by Miarom Bégoto in March 2019)

See the Archive Version!

1. Introduction

Efforts at regional and subregional integration in Africa date back to the immediate post-colonial period. They were seen as an extension of liberation movements and an effort to build economically viable and politically united geographical entities. This integration dynamic also reflected the prevailing European experience, which emphasized free trade within a common external tariff area.

Regional or subregional integration in Africa has had limited success due to several factors. The main ones are the parallel and often competing groupings that hijack the political will needed to succeed; the conflict between the development objectives of states and the expectations of their development partners, usually the former colonial masters or their associated groupings; the conflict between national structures and policies and the group's objectives and agenda; personality conflicts; infrastructural constraints, institutional constraints, and national security constraints.

The promise of integration, in the form of expanding local markets, achieving economies of scale, and strengthening negotiating positions in global negotiations, is enough of an attraction for African countries to try again and again to forge these regional trade agreements. ECOWAS, the Economic Community of West African States, and CEMAC, the Central African Economic and Monetary Community, are regional trade agreements. The progress of these subregional organizations is constantly disrupted by the many upheavals of history which have affected them, and which are not meant to affect them. New critical situations, induced, among other things, by the outbreak of the COVID-19 pandemic in the first quarter of 2020, have led to a major shock to the economies of the Member States. In addition to this health crisis, we must add the persistence of terrorism in Syria and the Lake Chad Basin, the threat to the rule of law stemming from unconstitutional power grabs, the perverse effects of climate change and the armed conflict between Russia and Ukraine, which further weaken the economy. balance of the economies of ECOWAS and CEMAC.

2. Economic Community of West African States (ECOWAS)

The ECOWAS Treaty was signed in Lagos, Nigeria, on 28 May 1975 by the Heads of State and Government of 14 West African countries, namely Benin, Burkina Faso, Côte d'Ivoire, Gambia, Ghana, Guinea, Liberia, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone, and Togo. Guinea-Bissau acceded to the treaty later, in 1975. In 1979, Cape Verde became the 16th member country. In 2002, Mauritania, one of the first member countries, officially withdrew from the organization. In accordance with the terms of the treaty, it entered into force in June 1975 with the ratification of seven States.

Article 2(1) of the 1975 Treaty describes the objectives of the Community as follows:

"... to promote cooperation and development in all fields of economic activity, including industry, transport, telecommunications, energy, agriculture, natural resources, trade, monetary and financial matters, as well as in the social and cultural fields, with a view to raising the standard of living of its peoples and increasing and maintaining economic stability, to foster closer ties among its members and to contribute to the progress and development of the African continent."

Article 2(2) of that Treaty explains that the Community is to ensure, in stages (emphasis added):

To achieve these objectives, the Treaty established the following institutions:

In addition to these Community institutions, the 1975 Treaty set up four technical and specialized committees in the following areas: trade, customs, immigration, currency, and payments; industry, agriculture, and natural resources; transport, telecommunications and energy; and social and cultural affairs. Each committee shall be composed of a representative of a Member State and any number of advisers. The Treaty also establishes the function of the External Auditor and Court of the Community. The latter was responsible for settling disputes between Member States concerning the interpretation or application of the Treaty which could not be settled amicably by direct agreement.

In 1975, the treaty created a grouping of 16 countries of unequal size, with Nigeria accounting for more than 65% of population and trade. Ghana, Senegal, and Côte d'Ivoire provided an additional 20%, while the remaining 12 countries provided 15% of the population. The political geography of ECOWAS also dictated that it was a grouping of coastal and landlocked countries, with the latter dependent on the former for transport services and trade. The language barriers inherited from the colonial era are significant. Nine countries are French-speaking, five are English-speaking and two are Portuguese-speaking. Added to this is the deliberate desire of metropolitan countries to distance themselves from ECOWAS. For example, as the idea of ECOWAS gained ground, France encouraged French-speaking West African states to transform a moribund regional organization into the Economic Community of West Africa (ECOWAS) with objectives like those of ECOWAS.

Similarly, the negotiations for the revision of the ECOWAS treaty in 1992-1993 coincided with the emergence of the new union of Francophones, the West African Economic and Monetary Union (WAEMU), which benefited from France's external guarantee. The 1975 Treaty provided for the establishment of a common market within 15 years. Given the many logistical, infrastructural, financial, and political obstacles and challenges, this timeframe was not realistic. In the end, the long-awaited increase in intra-regional trade did not materialize and the many protocols relating to the elimination of trade barriers were not respected. In short, most of the region's economic activity has not been affected.

As expected, the Treaty was revised in 1993 to rationalize the aims and objectives of the Community and to improve the limitations of the past. The revised Treaty clarified the aims and objectives of the Community. It focused on the establishment of an economic union through the adoption of common policies in the economic, financial, social and cultural sectors and on the creation of a monetary union. The revised treaty also identifies ECOWAS as the only economic community in the region for the purposes of economic integration and the pillar of the achievement of the African Economic Community.

In addition, the Treaty lays down certain fundamental principles, including the promotion and consolidation of a system of democratic governance in the Member States. The revised Treaty created additional Community institutions, namely the Parliament of the Community, the Economic and Social Council and the Arbitration Tribunal. The Community Court of First Instance under the 1975 Treaty has been transformed into a genuine Community Court of Justice.

The revised Treaty defines more precisely the nature of Community legislation. The expert group has been described as acting by way of decisions, while the Commission must act by means of regulations. The decisions of the panel are binding on the Member States and all Community institutions. The Commission's regulations are binding on all subordinate Community institutions and are binding on the Member States only after they have been approved by the expert group. Decisions and regulations are adopted, depending on the subject matter, by unanimity, consensus, or a two-thirds majority.

The revised treaty entrusts the Executive Secretary with the responsibility of publishing all decisions of the Ad Hoc Group of Experts as well as the regulations of the Markets Committee, 30 days after the date of signature. Such decisions and regulations shall automatically enter into force 60 days after the date of their publication in the Official Journal of the Community. The treaty also requires each member state to publish decisions and regulations in its national official journal within 30 days of their signature. In addition to the decisions and regulations set out in the Treaty, other secondary legislation takes the form of resolutions, recommendations, and declarations. These texts become binding only when they are published in the form of decisions or regulations.

The revised Treaty recognizes the inclination of Member States to conclude international agreements with both Member States and non-Member States. However, the treaty requires member states to avoid obligations that are inconsistent with their obligations under the ECOWAS treaty and to adopt common positions when dealing with non-member states and other international or regional organizations. In 2006, almost thirteen years after the revision of the treaty, the most significant results of ECOWAS were those concerning organizational issues such as the drafting of protocols and the conduct of studies.

However, the implementation of treaty obligations has left much to be desired. Genuine attempts at implementation have also been undermined by other measures. On the issue of free movement of persons, at its 23rd session in May 2000, the Ad Hoc Working Group adopted and launched the ECOWAS passport as a consecration of ECOWAS citizenship. Passports were to be introduced in the Member States, and national passports were to be phased out over five years. For many years, only Benin and Senegal introduced the ECOWAS passport.

Subsequently, other states followed suit. By 2012, 11 of the 15 States had finally adopted the ECOWAS passport (2012 Annual Report of the ECOWAS Commission, p. 62). Despite this, although visas have been abolished for nationals of Member States, there are many checkpoints, which remain a constant source of harassment and frustration for ECOWAS travelers.

The overarching objective of creating a common market has not fared any better. To achieve this objective, the Community has adopted a trade liberalization programme aimed at eliminating customs duties and taxes having equivalent effect on imports from ECOWAS since 1981 and at removing non-tariff barriers to intra-ECOWAS trade by 28 May 1985. The ECOWAS Cooperation, Compensation and Development Fund was established to compensate for the loss of customs revenue under the liberalization programme. The 2002 report of the Executive Secretary of ECOWAS, for example, notes:

"Unfortunately, the Executive Secretariat continues to receive complaints from Member States and economic operators about cases of refusal or failure to implement the scheme. Indeed, it is a fact that Member States still maintain non-tariff barriers such as bans and the requirement of special permits, against products of ECOWAS origin."

ECOWAS has had limited success in infrastructure development. The coastal highway and the Sahelian highway have achieved a high completion rate. Studies have been initiated with a view to developing a master plan for regional railways. ECOWAS was cooperating with CEMAC in the framework of the Yamoussoukro decision to increase air transport activities with the main support of the World Bank and the European Union.

By early 2006, it had become clear that ECOWAS, as an integration structure, was not performing well enough. To address this, the 30th Ordinary Summit of Heads of State and Government, held in January 2006, adopted decisions aimed at deepening and accelerating the ECOWAS integration process. The aim was to strengthen the supranational powers of the organization and, in fact, to introduce a new legal regime. On 14 June 2006, these decisions were promulgated as Additional Protocol A/SP.1/06/06 amending the Revised Treaty of 1993. Under Article 17 of the Additional Protocol, the ECOWAS Secretariat was transformed into a Commission of nine members, composed of a Chairperson, a Vice-Chairperson and seven Commissioners. The Executive of the Community is currently headed by the President of the ECOWAS Commission who is appointed by the Authority for a non-renewable period of four years. He is assisted by a Vice-President and 13 Commissioners.

The Additional Protocol also approved a new structure for the ECOWAS Parliament to enable the institution to play its full role in the integration process. An additional law on strengthening the prerogatives of Parliament was adopted in December 2016 and is currently in the implementation phase. This was the Supplementary Act A/SA.1/12/16 on the strengthening of the prerogatives of the ECOWAS Parliament adopted on 17 December 2016 at the 50th Session of ECOWAS Heads of State and Government in Abuja.

The Summit also confirmed the strengthening of the institutional capacity of the Court of Justice of the Community to ensure that ECOWAS has a strong and independent jurisdiction. The Additional Protocol established a new legal regime, under which existing ECOWAS institutions continue to exercise their norm-setting authority with a slightly modified nomenclature and redefined legal consequences. Community acts, under the new regime, are referred to as supplementary acts, regulations, directives, decisions, recommendations, and opinions. The panel adopts the supplementary acts, while the Commission adopts regulations, issues directives, takes decisions or makes recommendations and opinions. The Commission, the former secretariat, may adopt rules on the implementation of acts adopted by the COM. The rules thus adopted by the Commission shall have the same legal force as the acts adopted by the COM for the implementation of which they are adopted. The Commission may also make recommendations and opinions (new Article 9).

Supplementary acts adopted by the Authority shall be binding on the Community institutions and the Member States, in so far as they are directly applicable. The regulations are general in scope. The provisions of the Regulations are binding and directly applicable in the Member States. They are also binding on the Community institutions. The Directives are binding on all Member States as to the objectives to be achieved, but Member States are free to adopt the arrangements they deem appropriate for the achievement of these objectives. Decisions are binding on all those to whom they are addressed. Recommendations and opinions are not legally binding (new Article 9). Unless otherwise provided, Community acts under consideration shall be adopted unanimously, by consensus or by a two-thirds majority of the Member States. (New Article 9).

Overall, ECOWAS remains of marginal interest to Western countries. Apart from Nigeria's oil exports to the United States and Niger's uranium exports to France, and perhaps France's continued alliance with its former colonies, ECOWAS is merely a source of conflict and economic, demographic, and environmental crises. Its interest to the West can take the form of its ECOMOG forces in the region's security problems and prevent Western nations from getting directly involved in foreign conflicts. The recent unconstitutional changes in Mali (18 August 2020), the Republic of Guinea (5 September 2021) and Burkina Faso (23 and 24 January 2022) are indicative of the fragility of ECOWAS' political and institutional situations. In view of the challenges linked to good governance, the Commission must better accompany, in accordance with its treaties and fundamental principles, the military transitions underway in these countries towards truly democratic and sustainable processes. The same efforts to consolidate democracy and the rule of law are required in the CEMAC zone, which has also been facing, since April 2021, an unconstitutional change in Chad following the death of President Idriss Déby Itno.

3. Central African Economic and Monetary Community (CEMAC)

CEMAC is a reincarnation of one of Africa's oldest regional trade agreements. Previously, it was known as the Central African Customs and Economic Union (UDEAC). On 23 June 1959, just before gaining independence from France, Central Africa adopted a greenhouse gas emission allowance trading system. On June 23, 1959, just before gaining independence from France, the Central African Republic, Chad, Congo, and Gabon, the four members of the former Federation of French Equatorial Africa, signed a convention creating an Equatorial African Customs Union, the Equatorial Customs Union (ECU).

On 8 December 1964, the EDU and independent Cameroon signed a treaty creating the Central African Customs and Economic Union (UDEAC). It was not until 1983 that Equatorial Guinea became the sixth member of UDEAC. At the end of the 1960s, the UDEAC was plagued by dissension. The Central African Republic (CAR) and Chad, the least industrialized members, were threatening to withdraw. Under pressure from France, the CAR returned fully to the organization. Chad would not return until much later.

The UDEAC treaty underwent its first major revision in 1975. The 1975 treaty did not strengthen the authority or powers of the secretariat, as member countries were still committed to the notion of sovereign integrity. Finally, following the economic crises of 1980 to 1990, the six countries were convinced of the need for more dynamic integration and signed a new treaty on 16 March 1994 establishing the Economic and Monetary Community of Central Africa (CEMAC).

The CEMAC Treaty of 1994 stipulates that its essential mission is to promote the harmonious development of the member States within the framework of a genuine common market. To this end, it has set itself the following objectives under the leadership of two of its institutions, namely the Central African Economic Union (UEAC) and the Central African Monetary Union (UMAC):

The Treaty identifies the four Community institutions as follows:

CEMAC thus constitutes a link between the Monetary Union, the Bank of Central African States (BEAC), the Customs Union and the Central African Customs and Economic Union (UDEAC). To achieve the objectives of CEMAC, the treaty also established the following main bodies:

The Economic Commission for Africa (ECA) acts by means of acts complementary to the Treaty. These are supposed to supplement the treaty without modifying it. These supplementary acts are binding on the Community institutions and bodies and on the Member States. The COM and the CM act by means of regulations, directives, decisions, recommendations, or opinions.

The regulations and basic regulations are of general application. The regulations are binding in all respects and directly on all Member States. The basic regulations are directly binding only in certain respects. Directives are binding orders to the Member States to achieve a specific goal, while leaving them free to choose the form, means and way that goal is achieved. Decisions are binding only on the States or persons to whom they are addressed. Recommendations and opinions are not binding. Regulations, basic regulations, directives and decisions of the COM, the CM, the SE, and the Governor of the BEAC must be justified by law.

Supplementary acts, regulations and basic regulations must be published in the Official Gazette of the Community. They shall enter into force on the date laid down in the act or, failing that, on the twentieth day following their publication. Directives and decisions shall take effect on the date following the day on which they are notified to their addressees.

Although CEMAC was created in 1994, it was not until June 1999 that it became fully operational and replaced UDEAC. It is not surprising, therefore, that in 2008 Member States did not achieve the objectives they had set for themselves under the CEMAC Treaty. Trade within the region accounted for 2% of total imports and 1% of total exports. Paradoxically, trade between CEMAC and Nigeria was higher than trade between CEMAC countries. Bilateral trade between the European Union and CEMAC amounted to about €7 billion per year. The common market was still a long way off, and economic integration even more so. Pascal Lamy, the European Union's commissioner for international trade, warned that "CEMAC must start by developing a common market in order to ensure sustainable regional integration."

In 2008, CEMAC seized on the second wave of regionalization that affected Africa and decided to move towards greater integration through supranationalism. The CEMAC Treaty was revised accordingly on 25 June 2008. Article 63 of the Revised Treaty repeals the 1994 CEMAC Treaty and its Addendum of 25 April 2007. The Revised Treaty notified its supranationalism under Article 2 by specifying, first, that the essential mission of the organization is to promote peace and harmonious development among the Member States within the framework of the establishment of the two pre-existing unions, one economic and the other monetary. On the other hand, by stressing that, in each of these two areas, the Member States agree to move from existing inter-State cooperation to a union capable of carrying out the process of economic and monetary integration.

The revised treaty maintained most of the institutions and bodies originally created under previous CEMAC treaties, but with more integrative functions and powers and, in the case of the Secretariat, transformed it into a Commission, as the 2006 ECOWAS reform had done. The revised Treaty maintained the ECA as the Community's governing body which defines Community policy and provides guidance for the work of the UEAC COM and the UMAC CM. The revised Treaty also maintained the COM and the CM as Community bodies with similar functions but renewed powers to ensure progress towards economic and monetary integration.

The revised treaty established a Commission in place of the former Secretariat. The Commission is composed of a President, a Vice-President, and Commissioners, each from a Member State, appointed by the ECA. The basic criteria for appointment to the Commission are competence, objectivity, and independence. The functions of the Commission are governed by the principle of collegiality and its decisions are taken by a majority of its members. In the event of a tie, the President shall have the casting vote. The Commission, like the Commission of the European Union (EU), is the guardian of the CEMAC treaties and represents the Community in international negotiations on matters related to its objectives. Like the EU Commission, it has the right to initiate draft legislation and to apply and implement Community policies and programs.

In addition to UEAC and UMAC, the revised Treaty re-established the Community Parliament and the Court of Justice of the Community as Community institutions. The enabling convention by which Parliament is to be fully established has not yet been adopted. When it is operational, Parliament is expected to legislate through directives. Parliament ensures democratic oversight of the institutions, bodies, offices, and specialized agencies involved in the decision-making process of the CEMAC (Article 47 of the revised Treaty). The Court of Justice remains the judicial organ of the CEMAC, responsible for the interpretation and implementation of the Treaty and its conventions. The Court has jurisdiction over contentious disputes and may also give advisory opinions. It comprises a Judicial Chamber (Articles 11-25 of the Convention of the Court of Justice) and a Chamber of Auditors (Articles 26-29 of the Convention of the Court of Justice). The Community Court of Justice has been replaced by two separate entities, in accordance with the post-2008 guidelines: a CEMAC Court of Justice and a CEMAC Court of Auditors (Article 10 of the revised Treaty of 25 June 2008).

The revised Treaty re-established a community legal system on the model of the European Union and ECOWAS. The COM and the CM adopt regulations, framework regulations, directives, decisions, recommendations, and opinions (Article 40 of the Revised Treaty). A regulation is of general application and is binding in its entirety and directly applicable in all Member States. The framework regulations are binding only in respect of certain elements. A directive is binding on each Member State as to the result to be achieved, but not as to the form and means. A decision shall be binding in its entirety on the persons to whom it relates. Recommendations and opinions are not binding.

The vision of the CEMAC is now articulated around the Regional Economic Programme (PER) whose objective is to make the sub-regional institution, by 2025, “an integrated, emerging economic space where security, solidarity and good governance reign in the service of human development”. Adopted in 2010 by the member countries of the Community to meet the challenges of integration, the PER aims to develop the main resources of the sub-region and to build a competitive, diversified, and high value-added economy. It governs the development of the CEMAC zone as a whole and presents an emergence agenda for 2010-2025 in three five-year phases:

On the one hand, the PER makes it possible to ensure a good articulation between the agenda of CEMAC, its Member States and the private sector, and that of the Community’s development partners and, on the other hand, offers opportunities for complementarity between the interventions of the various donors at the Community level. It is divided into 5 axes, 12 strategic objectives, 29 programs and 86 projects.

Both ECOWAS and CEMAC have very similar objectives: an ever-closer union within each sub-region. While integration within ECOWAS is progressing, that of CEMAC remains mixed due to low trade rates, protectionist tendencies and leadership squabbles.

Ultimately, regional integration is the modality that Africa needs to refine to meet the challenges of the inevitable onslaught of globalization. It is to be hoped that the many parallel and competing groupings will give way to a broader political and economic union, as provided for in the treaties of the African Union and the African Economic Community. Faced with realities that are as persistent as they are worrying for the two subregions, ECOWAS and CEMAC, which have a sincere desire to see Member States move forward and write their history differently, must fight the demons that have long prevented the political, economic and social development of sub-Saharan Africa. In this context, it is desirable to prepare future generations for the rejection of political and ideological violence and the seizure of power by force, which could multiply in the years to come. Economic growth in Central and West Africa depends on the anchoring of democracy and the legitimacy of governments within each subregion.

4. Compilation of ECOWAS Treaties, Protocols and Conventions

Printed Sources

Electronic Services

5. Compilation of CEMAC Treaties, Protocols and Conventions

Printed Sources

Electronic Sources

6. Compilations of ECOWAS Regulations, Decisions and Guidelines

Printed Sources

Electronic Sources

7. Compilation of the Basic Acts and Regulations of the CEMAC.

Printed Sources

Electronic Sources

Proceedings

Rules

8. Important Treaties and Organic Texts

General

ECOWAS

CEMAC

9. Treaties, Books and Reports on African Regional Integration

10. Treaties, Books and Reports on ECOWAS

11. CEMAC Treaties, Books and Reports

12. ECOWAS Sector Survey

Lagbo, Francis Bliss. The energy crisis: the case of the Economic Community of West African States (ECOWAS), with reference to Nigeria, Ghana and Burkina Faso. Ottawa: National Library of Canada = National Library of Canada, 1993.

13. CEMAC Sector Scan

14. Conflict Prevention, Peace, and Security

15. Bibliographical Works, Indexes, Tables and Other Reference Tools