ASSESSING THE FEASIBILITY OF THE INSTITUTIONAL DESIGN OF AN EXPANDED AND DEVOLVED TRADE AND INVESTMENT SECTION OF THE AFRICAN COURT OF JUSTICE AND HUMAN RIGHTS By WILFRED AKHONYA MUTUBWA Student Number: 53835549 Submitted in accordance with the requirements for the Degree of DOCTOR OF LAWS (International Economic Law) At the UNIVERSITY OF SOUTH AFRICA SUPERVISOR: PROFESSOR BABATUNDE FAGBAYIBO NOVEMBER 2019 ACKNOWLEDGEMENTS The journey to this point would not have been possible without the contribution of many people, most of whom I may not be able to mention here. However, some merit special mention. Foremost, Professor Babatunde Fagbayibo, my supervisor. He has been a constant encouragement, right from the day I spoke to him on my intention to pursue this qualification. He has sharpened my research and writing skills through his thorough, analytical, critical and incisive comments; all the while challenging my perspectives on the research. I owe the relatively short period within which I have completed this thesis to his timeous review of my work. I say: Asante sana. My wife Sujie; daughters Noelle and Nadine. I will now try to make up for the long hours lost while I was engrossed in research and writing. Thank you for the support. My mother Dosiana, who invested in my formative schooling years, all in the staunch belief in my abilities. Irene Ochola, my secretary, for giving this work the required shape, and remaining patient throughout, sometimes, under extreme pressure. The University of South Africa, I have undertaken my Master’s and Doctorate studies in this prestigious university for the past five years. It has been both fulfilling and life changing. The quality of resources and support (particularly by the faculty members) availed to students at a very reasonable cost is simply truly remarkable. If I were to do it again, I would not do it any differently. i DEDICATION In memory of my late Dad, Thomas Browns Obed Akhonya. ii DECLARATION I, WILFRED AKHONYA MUTUBWA, declare that this thesis is my own original work and that all the sources that I have used or quoted in this thesis has been indicated and acknowledged by means of complete references. This thesis has not been presented in any other institution. Signed …………………………………………. Date ……………………………… iii SUMMARY OF THESIS Africa has always aspired for the economic integration of its markets. This endeavour is evident right from the 1960s clamour for independence and shortly thereafter, as newly independent states. During this period African countries under the umbrella of the OAU underscored economic cooperation as the basis for intra-African relations. However, it was not until the year 1991, with the conclusion of the AEC Treaty, that the continent formally adopted a framework and roadmap towards continental economic integration. The 40-year roadmap towards a continental economic community was premised upon the two principles of harmonisation and devolution. Moreover, the six-stage integration process set out in Article 6 of the AEC Treaty identifies the eight RECs in Africa as the building blocks for the continent’s proposed single market and economic union. It also underpinned the economic integration of the continent on the harmonious co-existence of the RECs. A step-wise ambitious integration model was adopted under Article 6 of the AEC Treaty. The model envisaged the creation of a Free Trade Area (FTA), followed by a Customs Union, a Common Market and ultimately a fully-fledged Economic Union. As a first step towards the continental integration, the African Continental Free Trade Area (AfCFTA) was unveiled in 2018. Cross border, intra-African trade, is bound to lead to a rise in investment and commercial transactions on the continent. This, in turn, will inevitably lead to disputes which require resolution. The economic integration of the continent is fast evolving under the aegis of the AU; whose dispute settlement system is currently also under review. Significantly, the AU has consolidated its dispute settlement mechanism, following the merger in 2008 of the ACJ and ACH&PR, into a single AU court, known as the African Court of Justice and Human Rights (ACJ&HR). It is within the context of the merged AU single court that this thesis grounds itself. It seeks to interrogate the adequacy of the continental trade and investment dispute settlement system and examines its viability within the consolidated AU dispute settlement system. While the AU led continental economic integration gains pace, the dispute settlement system, critical for the integration, is either lagging behind or is not receiving adequate attention. As a result, the dispute iv settlement systems created under the AEC and AfCFTA are incongruent with the principles of harmonisation and devolution, which underpin the continent’s economic integration goals. The recommendations proffered, align with the philosophy of harmonising and devolving the continental trade and investment dispute settlement system. The research proposes to locate the continental trade and investment dispute settlement within the AU single court system. The principal recommendation is not only to expand the Court’s jurisdiction in order to accommodate the trade and investment mandate, but also to use sub-regional REC judicial organs as courts of first instance for the ACJ&HR. A hierarchical order of the continental court system, with the single AU Court at the apex, is also proposed in this study as the supreme overarching supranational judicial organ. KEY WORDS: African Union (AU); Regionalism; Regional Economic Communities (RECs); Supranationalism; African Court of Justice and Human Rights (ACJ&HR); and the African Continental Free Trade Area (AfCFTA). v LIST OF ABBREVIATIONS AAA African Arbitration Association AALCO Asian African Legal Consultative Organisation AB Appellate Body ACB African Central Bank ACC African Commercial Court ACH&PR The African Charter on Human and Peoples’ Rights ACJ & HR The African Court of Justice and Human Rights ADR Alternative Dispute Resolution AEC African Economic Community AfAA African Arbitration Association AfCFTA The African Continental Free Trade Area AfCFTA DSB AfCFTA Dispute Settlement Body AFSA Arbitration Foundation of South Africa AMF African Monetary Fund AMU Arab Maghreb Union APPER Africa’s Priority Programme for Economic Recovery APRM African Peer Review Mechanism AT Arbitration Tribunal of ECOWAS AU African Union AU Act Constitutive Act of the African Union, 2000 vi BEAC Bank of the Central African States BCEAO Commission and the Central Bank of West Africa BIAT Boosting Intra Africa Trade BIT Bilateral Investment Treaty CACJ Central American Court of Justice CADR Uganda Centre for Arbitration and Dispute Resolution CAS Court for Arbitration for Sports CCJ COMESA Court of Justice CCJA Common Court of Justice and Arbitration of the OHADA CEMAC Central African Economic and Monetary Community CEN-SAD Community of Sahel-Saharan States CETA Canada-European Union Trade Agreement CIArb Chartered Institute of Arbitrators CJEU Court of Justice of the European Union COMESA Common Market for Eastern and Southern Africa CRCICA Cairo Regional Centre for International Commercial Arbitration DRC Democratic Republic of Congo EAC East African Community EACJ East African Court of Justice EACSO East African Common Services Organisation EAHC East African High Commission EALA East African Legislative Assembly EC European Community vii ECCAS Economic Community of Central African States ECHR European Convention on Human Rights ECJ European Court of Justice ECOSOCC Economic, Social and Cultural Council ECOWAS Economic Community of West African States ECSC European Coal and Steel Community EPA Economic Partnership Agreements EU European Union FDI Foreign Direct Investment FTAs Free Trade Areas GATT General Agreement on Trade and Tariffs GDP Gross Domestic Product ICC International Criminal Court ICJ International Court of Justice ICSID International Centre for Settlement of Investment Disputes ICT Information and Communications Technology ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia IGAD Intergovernmental Authority on Development IGADD Intergovernmental Authority on Drought and Development IHL International Humanitarian law ILC International Law Commission IMF International Monetary Fund viii IPA Investment Protection Agreement ISDS Investor State Dispute Settlement System ITLOS Tribunal for the Law of the Sea KIAC Kigali International Arbitration Centre LACIAC Lagos Chamber of Commerce International Arbitration Centre LCA Lagos Court of Arbitration LCIA London Court of International Arbitration LFA Lagos Final Act LPA Lagos Plan of Action LRCICA Lagos Regional Centre for International Commercial Arbitration LSK Law Society of Kenya MENA Middle East and North Africa MFN Most Favoured Nation NAFTA North America Free Trade Agreement NCIA Nairobi Centre for International Arbitration NEPAD New Partnership for African Development NGOs Non-Governmental Organisations NTS National Treatment Standard OAU Organisation of African Unity OHADA Organisation for the Harmonization of Business Law in Africa PAIC Pan African Investment Code PAP Pan African Parliament PCA Permanent Court of Arbitration ix PCIJ Permanent Court of International Justice PIC Pan African Investment Court PIDA Programme for Infrastructure Development in Africa PTAs Preferential Trade Areas REC Regional Economic Communities RIA Regional Integration Agreements RISDP Regional Indicative