n Law, Democracy & Development - Revisiting legal harmonisation under the Southern African Development Community Treaty : the need to amend the Treaty

Volume 19, Issue 1
  • ISSN : 1028-1053
  • E-ISSN: 2077-4907



International trade is important for economic development across the world including in Africa. Even the General Assembly of the United Nations has recognised that international trade is "the primary instrument for economic development." This is true for Africa which continues to struggle to shake off the bonds of poverty. In an effort to maximise participation in international trade, African countries have entered into various bilateral and multilateral trading agreements and arrangements with each other and with the rest of the world. This has culminated in various regional free trade areas and customs unions arrangements. These initiatives aim to promote the movement of goods, services, capital and people within the continent. However, to promote international trade, it is not adequate for them to merely focus on export promotion initiatives; "there is also a need to tackle impediments to trade, which includes the problem of diversity of laws." The continent's colonial legacy which introduced arbitrary borders and foreign legal traditions has made the issue of harmonisation of laws even more imperative. The emergence of various legal harmonisation initiatives at regional level is testimony to the need for legal harmonisation within the African context. However, despite apparent legal diversity in SADC, there is not much tangible progress towards the harmonisation of laws. This raises the question whether this is due to lack of political will or whether there is scope for such harmonisation under the SADC Treaty. This article analyses the Southern African Development Community (SADC) objectives focussing particularly on whether legal harmonisation is achievable under the current SADC Treaty framework. It considers the question whether the current SADC Treaty creates an adequate framework for effective legal harmonisation using regionally adopted community laws. It proposes the amendment of the SADC Treaty to make legal harmonisation one of SADC's objectives in line with similar initiatives on the African continent.

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