Harmonisation or Unification of Laws in the Context of SADC Regional Integration: ‘Analysing the SADC’s Initiatives in the Era of E-commerce’
Authors Deo John Nangela
Source: SADC Law Journal, The, 2013, p. 80 – 103
Regional economic integration is one of the ambitious projects supported by African countries. Several initiatives to realise it, such as the formation of Regional Economic Communities (RECs), have been in place, some well before, and more, after independence. The Southern African Development Community (SADC) is one of the regional economic blocs in Africa. The SADC’s mission and vision include, among other things, support for deeper co-operation and integration among its members, the reason being the desire to benefit from the economies of scale. While this regional economic entity has identified various enablers of deeper integration, such as peace, security, good governance, information and communication technology, liberalisation and private sector development, it is submitted that unless it adopts a harmonised (or unified), ‘technology conscious’ legal regime to support the rest of integration enablers, deeper integration in the region will still remain delusional. The adoption of such a legal framework in the region is necessary at such a time as this when technology forms the basis of modern knowledge-based economy. Such a framework has the potential to lessen cross-border business intricacies in the region. If, for instance, the region resolves to adopt a radical approach towards development of a unified legal regime, especially in the area of private international law, this may boost the development of e-commerce which is largely a cross-border activity. E-commerce, which forms part of the ‘new economy’, is essentially an important means of accessing the hitherto unaccessed markets, and, as a cross-border activity, is a catalyst for the integration process. As such, its development requires an environment with harmonised or unified legal rules that are technology conscious. This paper, therefore, supports a two prong approach to the facilitation of e-commerce in the region, ie, harmonisation and/or unification of laws. It examines the process of legal harmonisation in the context of the SADC region while also supporting the idea of possible unification in certain areas of the law. It suggests that, although the SADC region’s preference seems to incline towards legal harmonisation in future, the region may consider legal unification as a radical approach in certain areas of law such as private international law. The paper also argues that, with the development of e-commerce as a cross-border activity, an effective system of resolving conflict of laws issues within the region is an important attribute to the region’s successful economic integration. Such a system is currently lacking in the SADC’s integration process. In this regard the paper considers, however, that a successful integration process is not only a question of removal of economic and political differences but also removal of legal impediments, including those which arise out of underdeveloped commercial, criminal and private international law frameworks. In view of this, SADC member states need to demonstrate their commitment, political will and understanding of the fact that the successes of any economic integration includes, among other things, an appropriate legal framework which fosters and sustains the integration process.