Vienna Convention on the Law of Treaties

Three years ago, at the heart of the COVID-19 pandemic, I wrote an entry in this blog on the Martha Wangari Karua vs. Attorney General of the Republic of Kenya (Martha Karua case) in the East Africa Court of Justice (EACJ) First instance division titled: The EACJ First Instance Court Decides Martha Karua v Republic of Kenya: The Litmus Test for EACJ Jurisdiction and Supremacy. In that case, the First Instance division found that the Respondent State through the actions of its Judiciary (Supreme Court) had violated its commitment to the fundamental and operational principles of the EAC, specifically the principle of the rule of law guaranteed under Article 6(d) and 7(2) of the EAC Treaty. The court had found that Martha Karua’s right to access justice was violated and it issued a historic award for general damages in the sum of $ 25,000 to the applicant at a simple interest rate of 6% per annum. Since then, I contend that there is a supremacy battle between Kenya’s apex municipal court and the EACJ in two specific arenas. The first was Kenya’s appeal of this decision in the EACJ Appellate division which categorically dismissed the appeal with costs to the Appellant in February of 2022. The second venue for this ongoing conflict is in the Supreme Court of Kenya where Kenya’s Attorney General filed a reference for an advisory opinion reference that many observers saw as the aftermath of the Martha Karua case. This is the long awaited advisory opinion judgement that was issued on 31 May 2024 and forms the basis of this piece.

In this piece, I argue that Nigeria’s non-compliant behaviour is prevalent and entrenched in the field of international trade law, and that this behaviour is largely influenced by Nigeria’s perception of its national economic interests, which are underpinned by the protectionist policy of import-substitution. But Nigeria’s poor adherence to international trade rules should also be seen in the context of its general lack of commitment to the rule of law.

The African Union Commission estimated that Africa’s gross domestic product (GDP) could shrink by up to 4.51 percent, resulting in the loss of 20 million jobs. The looming debt crisis further complicates the pandemic-induced economic shock, severely limiting governments' ability to repay their foreign loans and address the current crisis. From 2010 to 2018, the average public debt in sub-Saharan Africa increased by 40%-59% of GDP, making it the continent with the fastest-growing debt accumulation toward sovereign, private and multilateral lenders.

Investors have shown time and time again that they will not hesitate to challenge regulatory measures not matter what a states’ underlying intent is. Only when the COVID-19 dust has settled will it be known which states had robust, well-crafted COVID-19 regulatory measures that can survive investor claims.

States could rely on secondary rules on State responsibility to defend preventative measures relating to COVID-19, yet their successful invocation depends on satisfying several conditions set out in the ILC’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts, a discussion of which is beyond the scope of this post. Meanwhile, the applicability of the doctrine of margin of appreciation, developed by the European Court of Human Rights, to the claims arising under BITs has been accepted, justifying why investment tribunals should pay deference to governmental judgments of national requirements in the protection of public health when the “discretionary exercise of sovereign power, [is] not made irrationally and not exercised in bad faith”

The AfCFTA seeks to change the manner in which African states trade with each other. The existence of the AfCFTA is what Roscoe Pound termed using the law as a tool of social engineering. The African Union in creating the AfCFTA intended to promote, facilitate and eventually experience free intra-African trade. This review appreciates the AfCFTA but seeks to criticize a loophole it has created

This article contends that premised on being Africa’s major trading partners, economies such as the US, the EU, and China are likely to experience trade diversion when the AfCFTA comes into force. As a result of such potential trade diversion, the implementation of the AfCFTA could be hindered. It is only by addressing the interests of these economies that AfCFTA will foreclose the possibility of a “crisis of implementation”.