Integration: Institutional framework matters – 2

 

By Juma Mwapachu, The Citizen, jvmwapachu@gmail.com

In Summary

As Kenya celebrated, Africa and the rest of the world was mourning and celebrating the death and life of a fallen African icon, Madiba whom President Barack Obama fittingly described as the ‘giant of the 20th century’.

This week on Thursday 12 December, Kenya commemorated 50 years of independence. East Africans join their Kenyan brethren in celebrating a half century of progress and prosperity even when Kenya faces an enduring challenge of social fracture and deepening inequalities.

As Kenya celebrated, Africa and the rest of the world was mourning and celebrating the death and life of a fallen African icon, Madiba whom President Barack Obama fittingly described as the ‘giant of the 20th century’

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Celebrating Mdiba and Kenya Anniversary

These two events, distinct as they seem to be, resonate a common political thread, namely the celebration of Africa’s armed struggle for emancipation from the scourges of colonialism and the worst form of racial discrimination and minority rule.

Madiba was a bastion of the long and bitter struggle for the liberation of his country and as Kenya acceded to independence in December 1963 after the Mau Mau had helped to dispirit British colonial interests, he was at that almost same time, facing the opening stages of the Rivonia Trial which culminated in his paying a heavy but glorious price for leading a revolution against the apartheid regime.

Linking Strategy to Structure

The links of these two events in 1963 provide a powerful contextual perspective for the follow up think piece to my last week’s article.

In both cases, the logic of structure following strategy is well evidenced by how struggle leads on to a desired dispensation. In the case of Kenya, it was political independence and for South Africa, the realisation of a democratic rainbow nation.

Perhaps no African leader has to-date been as cogently articulate about the close nexus between strategy and structure n so far as African integration is concerned as Mwalimu Julius Nyerere.

At the Conference of the Independent African States that deliberated on and adopted the Charter for the establishment of the Organisation of African Unity (OAU), Mwalimu Nyerere, speaking last on 24 May, 1963, floated the link between strategy and structure by admonishing the idea of the immediate establishment of a continental government.

Nyerere and Integration Frameworks

To him, the strategy, or what he described as the ‘common denominator’, towards realising a continental government on the basis of which the OAU structure would be determined, had to be in the form of a step by step process and that the organisation to be decided upon would have to fit such strategy.

As he put it, ‘no good mason would complain that his first brick did not go far enough. He knows that a first brick will go as far as it can go and no farther. He will go on laying brick after brick until the edifice is complete.’ And indeed, it is this management philosophy that has come to inform the determination of most institutional frameworks of the AU and the regional economic communities (RECs).

Most of the RECs have well set out objectives about regional integration.

The East African Community (EAC) probably has the clearest of such objectives as set out in the Treaty establishing it and the build up from customs union, common market, subsequently the monetary union and ultimately the political federation.

Indeed, no other REC in Africa espouses the ambition of a political federation.

The EAC Treaty also spells out the strategies to be pursued in realising the different stages of integration.

Challenge of Making Structur Work

Put it simply, strategy matters. The challenge, however, has all along been how to link strategy to structure or to the institutional framework that translates strategy into decisions and actions.

This has reference to clear decision making systems and processes, the availability of competent professional staff who are recruited on the basis of merit even when recognising the desire for geographical balance and the adequacy of funding of the organisation and its programmes.


Unfortunately, the economic balance of power constellation remains as the dominant ideology in most RECS and the EAC in particular. It manifests itself in the institutional framework which places the Partner States at the heart of the decision making system and processes.

Of course one understands and appreciates that in the case of the EAC, its Treaty was negotiated under a dark cloud of the breakup of the erstwhile EAC in 1977.

You could say that the ‘ghosts’ and the excess baggage from that tortuous history still haunted the framers of the Treaty to the extent that the EAC, as it stands today, reflects the conditions of what one may boldly describe as organisational ambiguity and of decision making dysfunctions.

Thus in spite of the integration ambitions encapsulated in the EAC Treaty and the clarity of goals which probably enjoyed a passionate political will and support at the beginning in 1999, such ambitions lack an equally supportive institutional framework that can best deliver on the envisioned integration promise.

Politically Determined Processes
 What you therefore have in the EAC today are strategies that are too tightly anchored on politically determined processes of integration that suffer from bureaucratisation and the command of politics over ‘blue ocean’ thinking. There are several examples that can be cited to show how such politically determined processes of integration have featured in the EAC integration.

Too Much Power with Ministers

First, all policy decisions of the EAC are made by the Council of Ministers. Increasingly even mundane administrative decisions, for example, over recruitments, also are subjected to decisions of the Council of Ministers.

The Secretary General is a high sounding title but with little to show in terms of authority. Often such an organisational system has led to delays in the execution of important decisions like recruiting key personnel.

And when all policy and administrative matters require decisions based on consensus, you can understand what it means in terms of institutional effectiveness.

A better structured system of decision making that discriminates the weights of issues and thus waters down the necessity of Council involvement and/or the necessity of consensus in literally all matters, the way the European Commission undertakes its decisions, would be the right way to proceed.

EAC Ministries Too National

Second, even though the EAC is the only REC in Africa where the Partner States have Ministries specifically catered for EAC affairs an institutional arrangement that also fits in well with the Treaty desire to respect and enforce the principle of subsidiarity, there are serious downsides to the arrangement.

One notable downside is the manner in which such Ministries have become the purveyors of the national interest and the ideology of national sovereignty as opposed to be the agents of regional integration. Of course, the EAC Treaty has created a system of inter-governmentalism, not supra-nationality and this, seemingly, stifles flexibility. It need not be.

My own thinking about the regional integration project is that ministries such as these would have become the nerve centres for promoting a dynamic approach to integration based on pragmatism and trust.

 These ministries should embrace the philosophical quest of a journey of discovery in the integration process which often demands a sense of entrepreneurial leadership, boldness and creativity.

 I realise that it is a complex task but at the same time it offers a unique process of learning about what works best, rather than one that often allows Partner States to act on the basis of mistrust and prevarication.

No Legal Powers for Sanctions

Third, the EAC lacks an institutional legal framework for enforcing compliance flowing from decisions taken by the Summit and the Council of Ministers.

For example, where the Council of Ministers takes a decision that the Partner States shall remove all Non-Tariff Barriers (NTBs), no enforcement mechanism exists to ensure that such a directive is adhered to. The authority of the Partner States, in practice, overrides such decisions or directives. And the Treaty is weak on imposition of sanctions against a violating member.

What is particularly troubling about the lack of such enforcement mechanism is the probable consequential deligitimisation of the very purpose of the integration project.

For example, Rwanda has consistently and persistently, since 2008, called for the removal of NTBs because they distort the costs of trade logistics. As a landlocked country, it finds the logic of the EAC customs union perfunctory.

Rwanda, rightly, expects to benefit from the customs union by having its costs of exports and imports coming down substantially, which is not the case. So what justifies its EAC membership?

One may pose the question here whether the EAC should establish a strict rules-based enforcement mechanism similar to that of the World Trade Organisation. Would it help to energise the EAC Customs Union and the Common Market?

From my EAC experience, much as I would support such a direction because the EAC needs it, I doubt if some EAC Partner States would support a move that subjects them to such a legal measure.

Extend EAC Court Jurisdiction

Fourth, as the EAC integration deepens, particularly in the context of intra-regional trade and investment flows, the scope and intensity of commercial disputes will also heighten.

 Such a development necessitates the strengthening of the judicial and dispute settlement mechanisms through the East African Court of Justice. However, this Court’s jurisdiction has until now been limited to the interpretation of the EAC Treaty.

Efforts to extend the Court’s jurisdiction since 2007 to cover commercial disputes arising from the implementation of the EAC Customs Management Act and the Common Market Protocol amongst other mandates like human rights, have failed to receive consensual support of the Partner States.

I am now told that the EAC Summit that met in Kampala on 30 November this year may have taken some bold decisions towards extending the Court’s jurisdiction to cover commercial disputes that arise from the Customs Union and the Common Market. If true, it would be a most welcome development.

Bolster EAC Secretariat Powers

Sixth, following the adoption of the Common Market Protocol in July 2010, the need to review the EAC institutional structure and capacity became pivotal. With this protocol, the EAC has to develop new commercial and trade policies, it has to put in place harmonised legal and regulatory systems, strengthen competition policy and laws etc.

 The current EAC institutional structure and capacity cannot meet these new demands. The EAC has to transform into a Commission of the EU type. This idea, unfortunately, is so far unacceptable to the Partner States. But it is a change that must come and come now.

Boost EAC Financial Independence

Finally, the EAC must quickly move towards self-sufficiency in its budget.

The current dependency to the extent of over 70 per cent of its budget being donor funded neither makes sense nor is it sustainable