The devil is in… Implementation of SADC Protocols

Cape Town-The highest decision-making body, the Summit of heads of State or Government, of the Southern African Development Community (SADC) met last week in Windhoek, Namibia to take stock among other things of the progress made in the implementation of various legal commitments. SADC was established in terms of the SADC Treaty which entered into force in 1993. One of the objectives of the Treaty is the adoption of policies aimed at the progressive elimination of obstacles to the free movement of labour and capital, goods and services, and of the people of the region among member states. Consequently, in line with this objective member states adopted the SADC Trade Protocol in 1996. The Trade Protocol came into force in 2000 after ratification by two thirds of the member states. Angola (2003) and Madagascar (2006) acceded at a later stage. Three member states, Malawi, Angola and DR Congo are not currently implementing the SADC Trade Protocol even though Malawi ratified the Protocol in 1999 and Angola is party to it. The implementation of the SADC Free Trade Area started in 2000 and was officially launched in 2008 after a transition period of eight years. The regional block claims to have liberalised 85 percent of trade in goods that originates among its members. It is envisaged that the SADC FTA will be fully implemented in 2012 with the completion of tariff phase down schedules on trade in sensitive products. In addition, the member states adopted a roadmap (Regional Indicative Strategic Development Plan) in 2003 for the achievement of deeper regional economic integration and propose the establishment of a customs union by 2010, common market by 2015 and an economic union by 2018. The establishment of the SADC Customs Union has not commenced and has been postponed. Nonetheless the important thing is that members started a process for the integration of their economies even though it might take longer than planned. Despite cooperation on the achievement of economic integration, the member states also cooperate on numerous other issues. This would not have been a problem had the members not allowed dual membership with other regional initiatives with similar aims, objectives and timeframes. This confused and complicated a seemingly clear approach to regional integration. Countries are for example required to allocate scarce financial and human resources to the implementation of the various integration projects and to the establishment of new institutions in line with their obligations. Almost all government departments are in one way or another involved in the negotiation, implementation, monitoring and evaluation of regional commitments. It also places an additional burden on national legislatures to give effect to obligations through the adoption of new or amendment of existing legislation. The costs of belonging to a regional integration block are duplicated when a particular country is party to multiple initiatives. In some instances these regional arrangements have conflicting obligations creating an implementation nightmare for those individual countries with dual membership. It is here where the root of the problem lies. The members of SADC have signed not less than 23 protocols and a number of declarations, charters and memoranda of understanding on various matters ranging from illicit drugs and control of firearms to trade, fisheries, mining and finance and investment. All of these protocols have entered into force, even the protocol on the establishment of a tribunal for the adjudication of disputes arising from the interpretation and application of obligations. Unfortunately, many member states do not view their legal obligations with the necessary earnest it deserves because very few, if any, consequences have ever flown from the non-implementation of commitments. Dispute resolution through the adjudicating body has only been used in exceptional cases. Regrettably, a rules-based dispensation has not yet come about. As a result, some states are very slack when it comes to the incorporation of their obligations into domestic law. However, it is important to acknowledge and address these technical problems in the functioning of the regional arrangement. The countries in southern Africa cannot prosper when they view and address problems in isolation. They need each other’s assistance to tackle problems of mutual concern. They also need effective secretariats that can oversee the implementation of regional policies and speak on behalf of the collective. *JB Cronjé, is a researcher at Tralac -Tralac

August 2010
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