Mediation in Africa – OHADA Rules

1 Intro
OHADA is the French acronym for “Organisation pour l’Harmonisation en Afrique du Droit des Affaires.” This translates in English to: “Organisation for the Harmonization of Business Law in Africa”. The result of a Treaty signed by 17 French-speaking African countries in 1993, one could make an opening case that the acronym should be OHADAAF: “Organisation pour l’Harmonisation du Droit des Affaires en Afrique Francophone (OHADAAF)” or “Organisation for the Harmonization of Business Law in Francophone Africa”, as this more closely reflects reality.

As a tool for resolving legal issues between business partners across multiple African states, OHADA is an attempt to reign in endemic bureaucratic dysfunction. However, in most ways, OHADA has reflected its origins as an offshoot of a Neo-colonial system of government that is not rooted in the interests of African nations but in those of the overarching master of OHADA ceremonies – France.

The amount of work that has gone into the OHADA project is commendable – fostering a common currency (Franc CFA), common markets (West African Economic and Monetary Union (WAEMU), Central African Economic and Monetary Community (CEMAC), low tariffs, that benefit its member countries, all mostly former French colonies. However, the close political and economic ties with France shared by OHADA members should lead other countries to consider carefully the unexpected consequences of treaties with OHADA member nations. In addition, the fact that no other nations but the original French speaking nations have joined since 1993 should raise concerns about the purpose and future of the treaty organization.

This paper will examine the harm to African people within OHADA. The unique harm to excluded people within OHADA member nations, like the English-speaking region of Cameroon, is also examined.

2 Problem
Before Common and/or Civil Law, there was Native Law. Given that the laws of a community of people stems/grows from how its people live (culture), one can posit here that the transfer/use of British Common Law and French Civil Law in parts of the world – especially Africa, implied and still does today – a transfer/use of British and/or French culture in these parts, with the advantages and consequences that these have brought to these lands and people.
The decolonization of Africa is more theory than practice. Most of the institutions established by colonial powers to rule the colonies were barely revised or retooled as decolonized nations actively sought self-rule. It has been said that colonial powers like France “at decolonization went out through the front door and came back in through the back door”.

OHADA is but a small section of a post-colonial system that has its roots in the colonial Civil Law system of France as implemented in colonized territories. It is an intentional, binding transfer of the Civil Law culture of France to foreign and independent nations.
Similarly, in former British colonies, there was the transfer of the Common Law Culture. The attempt to transfer legal frameworks to Africa for the express intent of providing a familiar business legal framework, for the benefit of French or British corporations, not the African nations is obvious.

3 OHADA Market Growth?
What has prevented other African nations from embracing a shared business legal framework that could join 1.5 Billion citizens into potentially the largest single market in the world?
With various civil, common and hybrid law systems in African countries there is a real need for harmonizing policies, processes and legal procedures between all of them. The reasons why some countries are dragging their feet can help shed light on the darker areas of a process that is aimed at all African countries but exploited most egregiously by France in its “former colonies in Africa.”

Three African countries that make up almost half a billion in population: Nigeria (200 million+), Egypt (100 million+), Ethiopia (114 million+). None of them are members and none are former French colonies; the legal system in Nigeria is based on Common Law, Egypt’s legal system is a mix of European, French and Islamic Law, Ethiopia’s system is based on Courts – Federal/State – a law system based on a historical legal tradition specific to Ethiopia.
How would one do business across African borders with this many legal systems? Is OHADA the solution to harmonizing business laws on the African continent? Not so fast.

3.1 OHADA’s Failure in British Southern Cameroons aka Ambazonia
British Southern Cameroons aka AMBAZONIA, a former British colony today finds itself in the throes of a genocidal war where gendarmes of the Franco-Cameroun government use live rounds on civilians and have kept up an assault on civilians since 2016. Abductions, kidnappings, extra-judicial killings, imprisonments without charge, public beatings and humiliation of adult citizens by uniformed gendarmes have become a daily occurrence pushing civilians to Fear by many and others to take positions of Self-Defense. The result is a daily standoff between government agents and civilian self-defense actors. The toll is deaths uncounted.

3.2 What has this to do with OHADA?
The government of Franco-Cameroun is a member-signatory of the OHADA treaty. In fact the OHADA Main Secretariat is in Yaunde, the capital of Franco-Cameroun. The Franco-Cameroun government made a conscious decision to use force to quell an organized strike by the Association of Common Law Lawyers of the Cameroons. The strike was in reaction to the introduction of French-speaking Judges to the Common Law courts in Ambazonia (Anglophone Cameroon). The judges did not speak English and were not educated in English Common Law as practiced in Ambazonia since the end of the colonial period. But the government of Franco-Cameroun ignored the complaints of the legal establishment.

The OHADA document was one subject of contention that the lawyers had in their list of grievances for the strike. Clifford Akonteh is an Anglophone human rights lawyer and activist from Cameroon. In his profile interview by he states:
“The Anglophone crisis began by the call of common law lawyers for a judicial review for improved access to justice such as transfer of Civil Law trained judges from common law courts, translation of the OHADA Law from French to English, and a need to revisit the 1961 Federal Constitution that protected laws and customs of Anglophone Cameroon. This call degenerated to a protest by lawyers on the streets where lawyers were arrested, many tortured and many currently on exile. The hostile, unsafe and shrinking democratic space is silencing the role of the Cameroonian Lawyer. “

Their strike was brutally disbanded and some lawyers had their wigs taken off, some were kicked to the ground and told by uniformed officers in French mostly, that they were wasting time. Most of the leadership of the Lawyers and Teachers associations involved are in one of these situations today: on exile as refugees, tried by military court, in prison or dead.
Meanwhile the standoff between Franco-Cameroun government agents and civilian self-defense actors in Ambazonia is ongoing. Citizens of Franco-Cameroun have dubbed it as “The Anglophone Crisis”.

The CAMEROONS Crisis is not an “anglophone” crisis, but a crisis of one former British colony refusing to be re-colonized by France using Franco-Cameroun as a Proxy. The last stand of Lawyers of the Common Law of the state of former British Southern Cameroons aka AMBAZONIA was their Refusal to argue cases in-front of a French-speaking judge who neither understood nor spoke English. It would be hard to implement OHADA rules in this context.

4 Solution
Different African ‘nations’, except for a few (Ethiopia), have been created by a history of colonization leading to the existence of major institutions that enable these entities to thrive in a ‘peaceful’ global context where the Rule of Law is implied and implemented for the good of all citizens. One would assume that given the option all or most of these countries would retool and reset these institutions to best fit the needs and interests of their own people – 1.5 billion of them.
Africa is vast: 11 million square miles +. Curating elements in an 11 million sq mile piece of real estate is a formidable task.
In the domain of law, rule of law and how it is implemented in Africa currently, OHADA treaty obligations are easier to address in a Civil Law context than in a Common Law context. Civil Law lawyers and Common Law lawyers could have interesting moot sessions on the subject. The sessions content could end up being of help to businesses in all or multiple law jurisdictions with fewer hassles and overhead.

A concrete example is that of a Nigerian businessman who owns an airlines business based in Nigeria and was seeking to do business in Ivory Coast – a former French colony. At the same time, he sought to do business in the Gambia – a former British colony. The Gambia part went smoothly and within 2 weeks he was ready to do business in the Gambia. The Ivory Coast part hit a snag – taking more than four years. When he tried to set up an office in Abidjan, he was “slammed with discriminatory charges that the other airlines were not also paying” – a sign of protective tariffs effectively applied. The charges made it impossible to make a profit.

So the Nigerian businessman decided on a counter-strategy: go to a Nigerian court and see to it that the same type of tariffs by the Nigerian government on similar Ivory Coast business (airlines) in Nigeria is implemented. This sort of equal application of unequal laws might hasten the harmonization of business rules in Common Law and Civil Law nations, resulting in closer integration between OHADA and non-OHADA nations.
In the current post-colonial dispensation by African countries and the stage at which the world has emerged and immersed itself in what all have named globalization, it would be helpful for nations, or more specifically People to be able to trade with each other under guidelines, expectations, and laws that are known and understood to be fair and applicable to all. This could lead to a future where “equal under the law” has real meaning.

5 Call to action
OHADA is just one of such institutional juxtapositions of cultural artifacts (in this case Economic culture of France and its former colonies) in an African context. An option to join voluntarily is a trap that invites the legal domination of Africa. Yes all 11 million square miles of it and all its 1.5 billion People Market.
OHADA is a great deal for the French and Francophone countries. No matter what the type of institutional system countries adopt is, the end goal is to enforce the rule of law and also guarantee equality before the law. How countries make that happen would depend on their own people making a conscious choice. Of course, to make a conscious choice one needs to be informed/educated on the options. Citizenry in most African countries getting apprised of these options in all ways possible is important in the long run as Business Laws affect people everyday they wake up and do business.

An OHADA-type institution for Africa is necessary, but it must originate from Africa and be tailored to fit the checkered colonial history of Africa and the divergent views of the future held by various African countries and their communities. Redefining OHADA will be challenging, and more so if the over-the-shoulder presence of France – a neo-colonizer – is still seen as active in the OHADA ecosystem. END

Writer/Analyst – African Indigenous Community Projects
January 22, 2022