Legislative versus judicial harmonisation of law: a comparative study of Ohada commercial law and the US uniform commercial code

Author Jonathan Bashi Rudahindwa

ISSN: 2521-2605
Affiliations: Lecturer in law, Université Protestante au Congo (DRC); Research Associate, Centre for Comparative Law in Africa (CCLA), University of Cape Town; Research Associate, School of Law, SOAS, University of London. Correspondence address: Université Protestante au Congo, Faculté de Droit, Croisement des Avenue Libération et Boulevard Triomphal, Commune de Lingwala, Ville de Kinshasa, République Démocratique du Congo, BP. 4745 Kinshasa 2

Source: Journal of Comparative Law in Africa, Volume 7 Issue 1, p. 1 – 29


The Organisation for the Harmonisation of Business Law in Africa (OHADA)  was established 27 years ago, in October 1993. Using legislative harmonisation or  unification of its 17 Member States’ business laws, through the adoption of several  Uniform Acts that are meant to be simple and modern, the organisation aims to  produce a business law that is adapted to each Member State’s context, thereby  facilitating commercial transactions within the OHADA area. While noting the  relative success of the OHADA harmonisation or unification process, this article  aims to highlight the advantages and shortcomings of its legislative harmonisation  mechanism. This aspect of the OHADA process is analysed by considering the  judicial harmonisation process that resulted in the adoption of the United States  Uniform Commercial Code (UCC), which is codified legislation that aims to  harmonise the law of sales and other commercial transactions across US states,  hence promoting inter-state trade. This comparative analysis is conducted with a  view to perfecting the harmonisation of business laws across Africa, while ensuring  that harmonisation achieves the goal of promoting intra-African trade. The  ultimate goal of the article is to demonstrate the need to place a greater emphasis  on judicial harmonisation and highlight its ability as a law-making method to  produce a commercial law that truly meets the needs and aspirations of the business  community across the continent.