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Africa’s Unmarried Entrepreneurship Will Fail With No Supranational Court

Introduction

Imagine a market of 1.5 billion people with a combined GDP of $3.4 trillion. This is the promise of the African Continental Free Trade Area (AfCFTA), the world’s largest free trade area by number of participating countries. Yet, for the average entrepreneur in Accra, Lagos, or Nairobi, this continental vision remains abstract. The reality is a fragmented landscape of 54 distinct legal jurisdictions, bureaucratic borders, and inconsistent regulations. This article argues that without a supranational court with binding authority, Africa’s “unmarried entrepreneurship”—the unified market dream—will fail to materialize.

While the AfCFTA has established a Dispute Settlement Body (DSB), its state-centric design is insufficient for the dynamic needs of private enterprise. To unlock the continent’s economic potential, Africa requires an African Commercial Court of Justice (ACCJ) modeled on the European Court of Justice (ECJ) or the United States Supreme Court. This analysis explores the historical roots of Africa’s fragmentation, the legal gaps in current integration efforts, and the practical necessity of enforceable continental law.

Key Points

Background

To understand the necessity of a supranational court, one must look back to the late 19th century. Between 1884 and 1914, European powers gathered in Berlin to carve up the African continent with rulers and pens. This “Scramble for Africa” imposed borders that severed communities, fractured economies, and disrupted centuries-old trade routes. Only Liberia and Ethiopia escaped this colonial cartography.

The Nigerian scholar Olyae mi Akinwumi captures this tragedy starkly: “The partition of Africa was done without any consideration for the history of the society… It inflicted irreparable damage on Africa, damage that many countries still suffer today.” These lines, drawn in European capitals, became the jail bars of modern African nations.

When the Organisation of African Unity (OAU) was formed in 1963, leaders chose pragmatism over revisionism. They decided to maintain colonial borders “for now,” prioritizing peace over economic consolidation. Paradoxically, six decades later, these same borders remain fiercely protected, undermining Africa’s economic potential.

Analysis

The Limits of the Current Dispute Settlement Body

The AfCFTA’s legal architecture relies on a Dispute Settlement Body (DSB), modeled largely on the World Trade Organization (WTO) system. Composed of member state representatives, the DSB oversees panels that adjudicate disputes regarding trade in goods and services. While a step forward, it suffers from four critical barriers that prevent deep entrepreneurship integration:

1. State-to-State Focus: Only governments can bring disputes. Private businesses, SMEs, investors, and consumers—actual drivers of the economy—have no standing. This leaves most commercial conflicts unresolved or politicized.
2. Ad Hoc Nature: Panels are constituted on a case-by-case basis and lack permanence. This slows proceedings and undermines consistency in legal interpretations across the continent.
3. Political Enforcement: Compliance relies heavily on peer pressure and diplomacy rather than binding enforcement. There are no automatic consequences or sanctions to deter breaches.
4. Fragmentation with Regional Blocs: The DSB must navigate overlaps with ECOWAS, SADC, EAC, and other regional courts, creating jurisdictional confusion and gaps.

This system is designed for isolated trade disputes, not for the daily frictions that SMEs face at borders. It cannot ensure the uniform application of AfCFTA regulations across 54 diverse legal jurisdictions.

Lessons from the European Union

Contrast the DSB’s limitations with the European Union’s Court of Justice (CJEU). The CJEU established the doctrines of primacy and direct effect, meaning EU law overrides conflicting national law, even constitutions.

Two landmark rulings illustrate this power:

• Costa v ENEL (1964): An Italian citizen challenged Italy’s nationalization of the electricity industry, claiming it violated European Community law. The CJEU ruled that European law is superior to conflicting national laws, establishing the doctrine of primacy as the cornerstone of Europe’s single market.
• Factortame (1990): Spanish fishermen contested the UK’s Merchant Shipping Act, which restricted foreign ownership of British vessels. The CJEU held that UK courts must disapply domestic laws that conflict with EU regulation, cementing the supremacy of supranational commitments.

Without such rulings, Europe’s “four freedoms”—movement of goods, services, people, and capital—would have remained aspirational slogans rather than enforceable rights.

The United States Precedent

The United States offers another robust precedent. Its single market emerged not merely through political consensus but via federal court rulings that entrenched federal supremacy over state regulations.

• McCulloch v. Maryland (1819): The Supreme Court ruled that states could not tax or impede federal institutions, cementing the doctrine of federal supremacy.
• Gibbons v. Ogden (1824): The Court struck down New York’s attempt to control steamboat operations, asserting federal authority over interstate commerce.
• Heart of Atlanta Motel v. United States (1964): The Court used federal commerce powers to enforce civil rights in private businesses, showing how market integration can drive broader societal success.

These rulings transformed 13 fractious colonies into the seamless $27 trillion market system known today. The concept is clear: a single market requires enforceable supremacy of continental law over domestic law.

Practical Advice

The Role of Digital Infrastructure

While legal frameworks are essential, digital innovation offers a parallel path to integration. The Pan-African Payments and Settlement System (PAPSS) and continent-wide mobile money interoperability have the potential to achieve what regional blocs have struggled with for decades: economic convergence.

It is possible to realize the practical benefits of a single currency without actually minting one, provided that virtual payment systems are brought to full use in cross-border transactions. By adopting distributed ledger technology and standardized API interfaces, Africa can enable instant settlement between different currencies, eliminating the need for correspondent banks.

Imagine a future where a Ghanaian consumer buys a dress from a Kenyan tailor found on Instagram, pays in Cedis, and the vendor receives Shillings instantly—no US dollars, no forex queues, no friction. In 2024, the Africa Prosperity Network (APN) championed this global interoperability agenda, gaining unanimous recommendation from the AU and regional economic communities.

However, even if adopted at the next AU Summit, these commitments remain optional without a court to enforce them. This is Africa’s integration tragedy: bold summit declarations without domestic execution.

Establishing the African Commercial Court of Justice (ACCJ)

To make the AfCFTA work, African leaders must prioritize the establishment of an African Commercial Court of Justice (ACCJ) by 2030. This court must possess specific powers:

1. Resolve Disputes: Adjudicate trade, competition, and free movement disputes with ultimate authority.
2. Override National Law: Apply the doctrine of primacy to override conflicting national regulations that undermine AU commitments.
3. Provide Preliminary Rulings: Allow national courts to refer questions regarding AfCFTA law, ensuring uniform interpretation across member states.
4. Grant Direct Access: Allow businesses and individuals, not just states, to bring cases directly to the court.
5. Enforce Compliance: Impose fines, sanctions, or trade remedies to ensure adherence to rulings.

This court would anchor the AfCFTA, harmonize regulations, give investors certainty, and prevent protectionist backsliding.

FAQ

Conclusion

Africa’s borders were drawn in European capitals, but the legal framework for its future must be drawn in African courts. The AfCFTA represents a historic opportunity to transform the continent’s fragmentation into continental power. However, without a supranational court capable of enforcing uniform rules and protecting private enterprise, the agreement risks remaining a “hole aspiration.”

The lessons from Europe and the United States are clear: markets unify not by goodwill, but by enforceable law. For the African entrepreneur in Accra selling to Lagos, or the Zambian farmer trading with Congo, the “unmarried entrepreneurship” will only become real when there is a judicial pillar strong enough to hold it up. By 2030, the African Commercial Court of Justice must be a reality. The world will not wait, and neither can Africa.

Sources

• Historical Context: Analysis of the “Scramble for Africa” (1884–1914) and the Berlin Conference, referencing the division of borders and economic disruption.
• Legal Precedents: Costa v ENEL (1964) and Factortame (1990) regarding EU law supremacy; McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824) regarding US federal supremacy.
• Economic Data: African Continental Free Trade Area (AfCFTA) projections regarding market size (1.5 billion people, $3.4 trillion GDP).
• Policy Initiatives: The Africa Prosperity Network (APN) and the 2024 AU Midyear Coordination Meeting in Accra regarding digital payment interoperability (PAPSS).
• Author Attribution: Based on the analysis and advocacy of Gabby Asare Otchere-Darko, Executive Chairman of the Africa Prosperity Network.