The Court Ruling on the Elections in Kenya: A Precedent for inter-State Disputes?

Gerhard Erasmus, tralac Associate, comments on the ruling by Kenya’s Supreme Court to overturn the re-election of President Uhuru Kenyatta, citing irregularities in the national election held in August 2017

The Rule of Law is what it says it is. In its most basic form it contains the principle that no person and no exercise of public power is above the law. And the extent of the protection it offers can be ascertained and be enforced through due process and judicial review.

The rule of law is often violated. It is not a favourite of dictators and anarchists. That is why a democratic society will be one where the judgments (including inconvenient ones) of the courts as to what the law means and requires, will be respected. In doing so legitimacy is bestowed on governments and their transactions.

The Kenya Supreme Court recently nullified the national elections held in August in that country. It found that irregularities had been committed by the election board and that new elections must be conducted within 60 days. This ruling, and the acceptance of the judgment, have been hailed as a milestone event. It has been noted that the nullification of a national election would be an extraordinary event anywhere in the world. One commentator described it as a first for Africa and “the most important democratic moment in Africa since the first non-racial elections in South Africa in 1994”.

These developments bode well for democracy in Africa. Hopefully the new Kenyan elections will be peaceful. The threat by President Kenyatta to “fix this court”, is unfortunate; hopefully it will turn out to be no more than a sign of passing frustration.

Could this development serve as a precedent for intra-state disputes in Africa? It would be a very constructive development if it does. To mention one obvious area where the adjudication of disputes can bring much needed benefits: African governments do not employ the courts of law or binding arbitration when it comes to the implementation of their trade agreements. They do not litigate against each other. Territorial disputes are about the only instance where they will refer differences to an international court or to arbitration. The consequences are unfortunate. Those doing business in Africa and engaging in cross-border commerce are denied the benefits of the rule of law. It will make them hesitant to expand in areas and transactions where legal certainty and the knowledge that independent courts will rule on differences, become important calculations. Consumers and vulnerable communities too are denied the protection of basic rights and fairness.

Modern trade agreements are rules-based. This brings the advantages of certainty and predictability. Once the law has been clarified, investors and private firms will know where they stand. It will bring the knowledge and confidence that their future investments and efforts are protected by the independent application of the applicable law. Corruption and bribery not only result in lack of transparency and impartiality; the inevitable costs are passed on to consumers or result in other detrimental consequences such as irreparable damage to the natural environment.

The members of the World Trade Organization (WTO) regularly employ the services of the Dispute Settlement Body of that organization to settle disputes about the interpretation or implementation of WTO agreements. These disputes frequently concern sensitive domestic development plans and national economic policies. The advantage is that once a ruling has been given the parties will be able to continue with mutual trade and the implementation (after adjustment to the dictates of the law) of national policies.

The many African members of the WTO have accepted WTO rules on dispute settlement, but they do not litigate in Geneva, nor in the regional courts which form part of the Regional Economic Communities (RECs) in Africa. It is said that litigation against another (African) government is offensive; disputes can be resolved through consultations. The truth is that this seldom happens. Zimbabwe’s frequent violations of its commitments under the SADC Protocol on trade go unchecked. Decisions in the institutions of the RECs are taken on the basis on consensus, resulting in political stalemates.

Dispute settlement is not an end in itself. In the context of the present discussion it is the means towards optimal conditions for trade and economic development. There is no effective alternative to the rule of law. It brings the many obvious advantages mentioned above, to inter-state transactions too. Sadly, politicians and governments only occasionally share the same conviction.

The bold decision of the Kenya Supreme Court and the acceptance by the candidates who will face the ballots box again, could be an indication of change. It will hopefully inspire political leaders and governments to bring the rule of law into the arena of trade and economic governance too. We all stand to benefit.

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Request for Expression of Interest
Mid-term Evaluation of Sweden’s Support to the Trade Law Centre (tralac)

The Trade Law Centre (tralac) has received core funding support from the Swedish International Development Co-operation Agency (Sida). This Contribution is to support the implementation of tralac’s 5-year strategy (March 2015 – February 2020). This request is for an Expression of Interest to conduct a mid-term evaluation of the 5-year Contribution by Sweden to tralac to assess the effectiveness of the support, in terms of the five standard evaluation criteria of OECD/DAC – relevance, effectiveness, impact, efficiency and sustainability.

• The EOI should include evidence of competence and experience for this evaluation, brief notes on methodology to be adopted, a summary budget, and brief details of key expert/s who will be assigned to the evaluation (max 2500 words).
• tralac will select a short-list of consultants who will be invited to submit a detailed tender for the evaluation (including methodology). Short-listed consultants will be notified on Friday 22 September by 16: 00 (UTC+02:00).
• Short-listed consultants will receive further information on tralac’s Strategic Framework 2015 – 2019, Results Framework and Annual Reports, and should submit a tender by 29 September. The successful consultant will be notified on 4 October 2017.

Due to population growth, rapid urbanization and changes in dietary patterns, there is fast-growing demand for agricultural products in global markets and in developing countries. Even though the African continent has vast agricultural potential, we have witnessed over the past three decades a rise in food imports. This has raised the concern over Africa’s ability to afford its food bill and ensure food security in the continent, while at the same time aiming to eradicate poverty.

Using data mainly for the period 2012-2016, this report seeks to provide an overview of Africa’s food-trade. Food products in this report include edible products including fisheries classified under agricultural products in the harmonised system (HS) classification of commodities (HS01-HS22) with exception of HS06 (Live trees, plants, bulbs, roots, cut flowers etc).

Africa has the potential to feed itself as well as export surplus food to the rest of world, however, this has not been happening. Part of the problem is attributed to technical, infrastructural and institutional constraints that bog the Continent. Furthermore, trade distortions arising from (both internal and external) economic and agricultural policies (especially the protection and subsidies from developed countries and taxation on food production within Africa) have affected food productivity, production and trade in Africa.

Trade data over the review period 2012-2016 reveal that on average Africa’s food trade deficit was around US$30 billion annually. However, we note that while exports have remained largely unchanged over the review period, imports have been on the decline, from a high of US$83 billion in 2012 down to US$ 65 billion in 2016 representing a 6% decline using compound annual growth rate (CAGR). If current predictions according to analysts hold, the import bill is expected to rise to US$110 billion annually by 2025.

Looking at the global food trade, Africa’s imports and exports are only a small fraction of the world total food trade. Over the review period 2012-2016, African food imports and exports each represented on average about 6% and 4% of the world’s food imports and exports, respectively.

Download this Trade data analysis and trade data spreadsheet on tralac’s website.


tralac has been monitoring the trading relationships between Africa and various trade partners for several years. These Trade Data Updates, and accompanying data spreadsheets, document the trading relationships between the African continent and select trading partners, as well as South Africa’s significant trading relationships.

Visit the Trade Data Analysis page to view tralac’s collection of analyses.


Infographics

tralac is developing a growing collection of infographics – graphic visual representations of key information and data pertaining to important trade relationships for countries in east and southern Africa and the continent more broadly. The latest infographics from tralac’s resource page include:

• South Africa’s trade relationship with Africa
• US – Africa trade profile 2010-2016
• Africa’s used clothing imports

 
Resources portal

• Evolution of the international trading system and its trends from a development perspective | Speech by ITC Executive Director Arancha González
   
• Evolution of the international trading system and its trends from the perspective of Africa | Presentation by Jamie MacLeod, Trade Policy Fellow, Africa Trade Policy Centre (ATPC)
   
• South African statement delivered during the High-Level Dialogue: Is the world integrating or disintegrating?