The Southern African Development Community (SADC) SADC is a regional organization[1] that was created in 1992 to replace the erstwhile Southern African Development Coordination Conference (SADCC). SADCC had been created by a number of Southern African countries known as the Frontline States, the raison d'être of which was an abjuration of South African apartheid policies.[2] It is also believed that SADCC was formed to specifically counter the strategy of President P. Botha to create a Constellation of Southern African States (CONSAS).[3] The members of SADC include a variety of middle income and least developed countries (LDCs).[4] South Africa is the largest and dominant member state and its involvement in the group is critical.[5] SADC is undergoing important institutional changes. Its relations with other international actors are also unfolding. The organization is equally adapting to some of the changes. Although there are many developments that have marked the organization in recent years, this essay dwells of one of them: the ongoing negotiations of an Economic Partnership Agreement (EPA) between a group of SADC member states on the one hand, and the European Community (EC) on the other. The negotiations are indicative of a number of issues that are likely to significantly affect SADC as a single active entity. The main problems include the lack of money; the possibility that SADC could split; the apparent and intermittent signs indicative of an absence of real interest in the negotiation process by the EC negotiators; frequency in the changes of SADC lead negotiators and certain institutional concerns. SADC covers an area of about 9,859,000 km sq. It has a population of 230 million people, the majority of whom are rural. SADC's combined GDP is US$ 230 billion.[6] Based in Gaborone (capital of Botswana) SADC's main vision is that of "[A] common future within a regional community that will ensure economic well-being, improvement of the standards of living and quality of life, freedom and social justice and peace and security for the peoples of Southern Africa."[7] The main principles of SADC are enumerated in the Treaty of Windhoek that sanctioned the birth of the organization. Amongst these are respect for equality, solidarity, democracy, equity and peaceful settlement of disputes.[8] The objectives of SADC are legion and ambitious. They include the promotion of sustainable development; the attainment of complementarity between national and regional strategies and programmes; the fight against HIV/AIDS and other deadly communicable diseases; and poverty eradication.[9] Strides have been made in reaching some of the set objectives. However, challenges abound which highlight the point that regional integration is not only about making treaty pledges but also arriving at clear results.[10] SADC has experienced many challenges not least of which is the recent overhaul of its structures and it still has to overcome many hurdles to reach its goals.[11] One of such hurdles is the lack of sufficient funds.[12] In order to overcome its myriad of challenges SADC designed a Regional Indicative Strategic Development Plan (RISDP) in 2003. Alongside with the Strategic Indicative Plan for the Organ (SIPO) the RISDP epitomizes the path SADC will take for a fifteen year period.[13] As outlined in the RISDP SADC hopes to become a free trade area (FTA) in 2008 and a customs union in 2012. A common market and an economic union are also envisaged. SADC's legal status is that of an international organization which has the legal capacity and power "[T]o enter into contract, acquire, own, dispose of movable or immovable property and to sue and be sued."[14] As an international organization it has conventional organs such as the Summit of Heads of State or Government; the Organ on Politics, Defense and Security Cooperation; the Council of Ministers; the Integrated Committee of Ministers; the Standing Committee of Officials; the Secretariat; the Tribunal; and SADC National Committees.[15] The main policy making organ is the Summit of Heads of State and Government.[16] The policies are implemented through decisions adopted by the Council of Ministers.[17] The implementation of the RISDP is the preserve of the Integrated Committee of Ministers.[18] While the institutions are broadly guided by the Windhoek Treaty, there are 22 protocols to the Treaty[19] and others are under preparation.[20] Until 2001, the areas covered by the protocols were under the aegis of specific countries. In other words, SADC member states had the competence to oversee given areas of cooperation. They hosted sector coordinating units (SCUs) of the various areas of cooperation. In 2001, the structural reform of the institution started in earnest. All the SCUs have been swamped into five directorates housed at the SADC Secretariat in Gaborone.[21] SADC has also issued vital declarations and memoranda in key areas of cooperation.[22] The institution is undergoing many changes and witnessing a number of developments that could determine the form that the organization will take for decades to come. The internal institutional changes and its responses to the political situation in Zimbabwe are some of the salient elements with potential patent fallout for the region. Yet what stands out as a critical development that could effectively make or mar positive prospects in the region is the negotiation of the EPA between the EC and a select group of SADC countries. What makes EPA negotiations very peculiar is the fact that they can still be directed in a manner that does not hamstring the regional integration agenda of the region. Recent developments: Analyses of the SADC EPA Negotiations A) Nature of EPA negotiations EPA negotiations are critical for SADC's development. The talks are legally sanctioned under the Cotonou Partnership Agreement (the CPA)[23] that encodes the formal trade and development cooperation ties between the European Community (the Community or the EC) and the group of African, Caribbean and Pacific States known as the ACP states, in one single partnership agreement. The ACP group was founded in 1974 following the signing of the Georgetown Agreement.[24] The majority of these countries were former colonial possessions of Britain, France, Belgium and Italy. All SADC states are members of the ACP group. This means that relations between the EC (or EC member states) and any SADC country or any entity identifying itself with SADC are mainly sanctioned by the CPA. The agreement itself is clear on this point.[25] Before the adoption of the CPA relations between the ACP and the EC were dealt with under the Lomé Conventions.[26] These agreements related to EC's ties with the individual countries as well as specific regions such as SADC. Under the CPA the EC has made provision for development funds for ACP, a fortiori, SADC countries. In terms of prospective trade relations the CPA has shifted focus from the previous regime of non-reciprocity to one based on reciprocal exchange of obligations within the framework of interim regional trade agreements or the EPAs. There are six EPAs for the Pacific region; the Caribbean region; East and Southern Africa (ESA); the Economic Community of West African States (ECOWAS) plus Mauritania; the Central African Economic and Monetary Union (CEMAC) plus Sao Tomé e Principé and the SADC Group EPA. EPA negotiations have evolved in phases. The first phase started in September 2002 and it was composed of all the ACP States and EC. The second phase of the talks commenced in October 2003 at the ACP regional levels. The SADC EC EPA negotiations started on July 8, 2004. All the EPA negotiations for the various groups have to be completed by December 31, 2007 as stipulated in Article 37(1) of the CPA. B) EC-SADC EPA negotiations and challenges posed to SADC The problems that SADC EPA members are facing within the framework of the negotiations are many and characteristic of the challenges facing many LDCs and developing countries. Such challenges include the lack of money and the real possibility that SADC could split. In addition, there are apparent and intermittent signs that are indicative of an absence of real interest in the negotiation process by the EC negotiators. Furthermore, the frequency with which SADC lead negotiators are changed poses the problem of securing lucid institutional memory transfers. Finally, there are a number of internal institutional concerns that have been brought into sharper relief because of the SADC EPA negotiations. Negotiating EPAs entails the putting aside of money to finance the activities of the negotiators and the SADC EPA Unit.[27] Initially, SADC EPA states had to contribute $39,000 each for the upkeep of the SADC EPA Unit but this amount was further augmented to $56,137.[28] They also hoped that donor funding would supplement this. The donors approached included the EC, Canada and Japan. The sum that was asked of the EC was 1.9 million euros for the EPA Support Facility.[29] Initially the EC provided the sum of 452,930 euros to be used to support the EPA Unit from 2004 to 2005.[30] A more elaborate project proposal (requesting 7.5 million euros) was later submitted to the EC for the EPA Support Facility.[31] When the negotiations started SADC EPA negotiations were so short of funds that they turned towards South Africa to request the use of part of the European Programme for Reconstruction and Development (EPRD)[32] money for the EPAs. However, South Africa turned down the appeal.[33] The application for funding from Canada's International Development Agency (CIDA) was equally rejected because Canada noted its preference to fund broad programmes rather than narrow initiatives such as support for the payment of the SADC EPA Chief Negotiator. Japan was blunter and noted it will assist only those projects that have a bearing on SADC/Japan economic relations.[34] What this indicates is that SADC states have found it difficult to pay for the EPA negotiation process to the extent that they are appealing for funds from their main negotiating interlocutor (the EC). It is highly unlikely that this scenario will not affect the eventual one-sided nature of the outcome. It is revealing that some of the SADC EPA states expressed concerns regarding the charge they were asked to pay for the upkeep of the EPA Unit. Such members included Angola, Lesotho, Namibia and Swaziland[35] but they were reminded of their duty to foot the bill of the SADC EPA Unit when they initially showed signs of defaulting.[36] During the opening ceremony of the SADC-EC EPA Ministers Jacob Nkate, the SADC Group EPA Chief Coordinator (as he then was) noted that "[O]ur negotiation skills and understanding of issues under negotiations need to be sharpened so that we are able to articulate the needs of the region."[37] This statement reveals that SADC EPA states have to engage in two major activities at the same time. On the one hand, they are expected to negotiate. On the other they are seeking help to assist them negotiate. The latter has proved challenging and will inevitably affect the outcome of the former. The issue of money has a second component. The challenge of funding the EPA Unit is symptomatic of a deeper problem that the SADC EPA Group has to grapple with. The problem is that there is a strong possibility that the very existence of the SADC EPA group will lead to a sundering of SADC as a cohesive regional body. SADC trade issues are now mainly regarded from a SADC EPA group perspective. Added to the fact that the SADC EPA Unit is within the SADC Secretariat and that SADC EPA meetings are attended exclusively by SADC EPA states, it becomes clear that the viability of the organization as a single block is highly questionable, notwithstanding the aspirations expressed in the RISDP. In addition, the fact that the EC has made it clear that development money will increasingly be aligned to the EPA[38] highlights the potential bickering that the states will have to deal with. This is more so if one considers the fact that SADC and the Common Market for Eastern and Southern Africa (COMESA)[39] are more of competitors rather cooperation partners. This is corroborated by the fact that Madagascar, which is a SADC and COMESA member, saw its application as a SADC EPA observer derided on the basis that it had to completely renounce its ESA EPA membership and fully join the SADC EPA group.[40] Another potential challenge emerging from the EPA negotiations within SADC is that which exists between some of its own institutions. The SADC Parliamentary Forum, the legislative outfit of SADC, has expressed its dissatisfaction with the fact that the Secretariat of the organization has sidelined the lawmakers from the negotiation process.[41] Within the secretariat itself, there appears to be differences in the positions of trade and health experts regarding the inclusion of issues such as the protection of intellectual property rights within the EPA negotiations.[42] While the trade experts are more cautious, the health officials prefer the inclusion of intellectual property issues probably because they realize that intellectual property rules matter in terms of access to affordable medicines. In all the EPA negotiations provide litmus for SADC institutional viability. The signs are hardly encouraging. One other problem, which the SADC EPA like all the others has had to face, is the degree of commitment of the EC. The EC has to negotiate with six EPA groups. This in itself is challenging because all the regions want the unreserved attention of the EC represented by the Trade Commissioner. The load of work on the part of the Commissioner has meant that key meetings at the ministerial level has either been deferred on many occasions or simply cancelled. Added to this is the unease generated in certain ACP circles that EC ministers are not sufficiently engaged and committed to the EPA process. This concern is reflective of a broader problem that is evidenced in the wider EC-ACP cooperation. For instance, a SADC-EC ministerial meeting was scheduled on March 3, 2006 in Swaziland and this had been agreed to by Commissioner Peter Mandelson. However, at the very last minute he changed the plans and rescheduled the meeting to Brussels because he had other commitments. This was also the case for the Senior Officials meeting that had to be rescheduled because the EC negotiator at that level[43] (Karl Falkenberg) had other things planned.[44] Another example that is indicative of the questionable commitment of the EC to the process is the fact that the EC took almost a year (2006) to respond to the Strategic Framework for the EPAs that was proposed by the SADC EPA members.[45] This in turn caused great levels of inertia within the SADC EPA group until February 2007 when the Commission finally sent a reply to the demands of the SADC EPA. Another challenge that the SADC EPA states have had to grapple with is the frequency with which they have been changing negotiators. On the EC side the lead negotiator at the ministerial level, the Trade Commissioner has been in place for the most part, during the negotiations. On the SADC EPA side, the post of lead negotiator or the Chief Coordinator has been a function of the vagaries of politics in Botswana.[46] Little wander there have been at least three lead negotiators at the ministerial level. At the Senior Officials' level the situation has been the same. The only exception has been at the technical level where the head of the EPA Unit who doubles as the Chief Technical Adviser has served in a consistent manner since the creation of the EPA Unit. It is arguable that the frequent changes at the level of the lead negotiators in the SADC EPA camp has not been a credit to its interests mindful of the constant need to transmit institutional memory rather than concentrating fully on the negotiations. Alternatively, SADC EPA states could simply have maintained the first Chief Negotiator (later the CTA) as their Chief Negotiator. At the ministerial level, the Director of the Department of Trade, Industry, Finance and Investment could have been charged with the task of coordinating the talks. The final problem that the SADC EPA states face is that of institutional wherewithal. It should be noted that the main EPA organ within the SADC Secretariat (the EPA Unit) has only four officials who are all seconded from the member states. This lack in adequate capacity in terms of human power has had adverse effects on the nature and preparations for the negotiations.[47] Another capacity problem that has been faced by SADC relates to the deficiency of needed internal experts to craft the final EPA. This has resulted to attempts by the EPA states to request the legal services for EPA drafting from International Lawyers and Economist against Poverty based in Toronto.[48] Conclusion SADC faces many political, social and economic challenges. The organization has put in place institutions and protocols to fortify its efforts to sufficiently deal with such problems. These notwithstanding the current negotiation between the EC and SAD EPA states has exposed the fact that the organization may gradually sunder as the various states make crucial trade offs between the choice of COMESA or SADC. The six SADC states that are negotiating an EPA with the ESA group realize that their trade interests are better served as members of COMESA. In the SADC EPA negotiations the EC wants the region to become a customs union in 2008 but the SADC EPA has remained adamant that its will stick to the RISDP which has slated the creation of a customs union for 2010. Assuming that the SADC EPA becomes a customs union in 2008 or even in 2010 what will become the fate of COMESA/SADC member should the EC also press the ESA group for a customs union. The SADC EPA negotiations have also revealed very difficult institutional questions regarding the members of the Southern African Customs Union (SACU), which as its name indicates, is already a customs union regrouping Botswana, Lesotho, Namibia, South Africa and Swaziland. One escape valve from all these institutional tensions will be for the EC to press for a merger of the ESA and SADC EPAs into a single EPA. This will be in line with the broader continental aspiration of the African Economic Community and it will settle some of the crucial institutional challenges. However, this proposal will hardly fly given the fact that the EPAs have to come into force by January 1, 2007. That being said, the finalization of economic partnership agreements need not be indicative of the end of attempts at working for a broader regional community for Southern and Eastern Africa. Stephen S. Kingah* and Stefaan Smis** Footnotes: 1 The term regional organization is used here to refer to an international inter-governmental organization made up of a close knit group of states held together by geographic proximity as well as shared goals. See Jean Salmon, Organisation régionale, DICTIONAIRES DE DROIT INTERNATIONAL PUBLIC, (2001) at 793. 2 ASSOCIATION OF WEST EUROPEAN PARLIAMENTARIANS FOR ACTION AGAINST APARTHEID (AWEPAA), THE EUROPEAN COMMUNITY AND SOUTHERN AFRICA: LOOKING TOWARDS LOMÉ IV 1 (1989). 3 GABRIEL H. OOSTHUIZEN, THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY: THE ORGANIZATION, ITS POLICIES AND PROSPECTS 60 (2006). 4 Members include Angola, Botswana, the Democratic Republic of Congo (DRC), Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe. 5 SANUSHA NAIDU & BENJAMIN ROBERTS, CONFRONTING THE REGION: A PROFILE OF SOUTHERN AFRICA 41 (2004). 6 SADC, SADC ANNUAL REPORT, 2004/2005, 10 (2005). available at http://www.sadc.int 7 Id. at 13. 8 Consolidated Text of the Treaty of the Southern African Development Community as Amended in August 2001, Art. 4. at http://www.sadc.int/key_documents/treaties/sadc_treaty_amended.php. (accessed on August 31, 2007). 9 Id., Art. 5. 10 WALTER MATTLI, THE LOGIC OF REGIONAL INTEGRATION 12 (1999); Margaret Lee, Regionalism in Africa: A Part of Problem or a Part of Solution, POLIS/R.C.S.P/ C.P.S.R Vol. IX (2002); Phineas Kadenge, Regionalism: Lessons the SADC can Learn From the EU, in SADC-EU TRADE RELATIONS 57, 53-58 (Trudi Hartzenberg ed., 2000). 11 Elizabeth Sidiropoulos, SADC and the EU: A Brief Overview, in SADC-EU RELATIONS: LOOKING BACK AND MOVING AHEAD 22, 7-23 (2002). 12 THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY, REPORT OF THE REVIEW OF OPERATIONS OF SADC INSTITUTIONS: TOWARDS A COMMON FUTURE 5 (March, 2001).
13
RISDP, at http://www.sadc.int/content/english/ 14 SADC Treaty, supra note 8, Art. 3(1). 15 Id., Art. 9(1). The Troika system was introduced in the 2001 Amendment of the SADC Treaty: Art. 9A. 16 Id., Art. 10(2). 17 Id., Art. 11(2)(b). 18 Id., Art. 12(2). 19 See http://www.sadc.int/key_documents/protocols/index.php. Examples include the Protocol on Trade (August 24, 1996) and Protocol on Health (August 18, 1999). For a more exhaustive list see SADC, MAJOR ACHIEVEMENTS AND CHALLENGES:25TH ANNIVERSARY 1980-2005 34-35 (2005). 20 For instance, Protocol on Sexually Transmitted Infections (expected to be adopted by the end of 2007) and a Draft Protocol on Piracy and Protection of Copyright and Neighbouring Rights. See THE EUROPA WORLD YEAR BOOK, VOL. I, 362 (Joanne Maher ed., 2006) and THE EUROPA WORLD YEAR BOOK, VOL. I, 376 (Joanne Maher ed., 2007). 21 The five directorates include trade, industry, finance and investment; food, agriculture and natural resources; infrastructure and services; social and human development and special programmes; and politics, defense, and security. 22 E.g., Declaration on Gender and Development (Sept. 8, 1997) and Declaration on HIV/AIDS (July 4, 2003). 23 ACP-EU Cotonou Partnership Agreement, June 23, 2000, as revised, June 25, 2005, ACP 63/ OC 269 8851/05. 24 See The Georgetown Agreement (as amended by Decision N°1/LXXVIII/03 of the 78th Session of the ACP Council of Ministers, Brussels, Nov. 27-28, 2003). East Timor became the latest and 78th entrant into the ACP Group. See Decision N° 1/2003 (2003/404/EC) of the ACP-EC Council of Ministers of May 16, 2003 ([2003] O.J. L141/25). 25 The CPA art. 91. 26 First ACP-EC Convention of February 28, 1975, [1976] O.J. L25; Second ACP-EC Convention of October 31, 1979, [1980] O.J. L347; Third ACP-EC Convention of December 8, 1984, [1986] O.J. L86; Fourth ACP-EC Convention of December 15, 1989, [1991] O.J. L229/3. Lomé IV was concluded for a period of 10 years; Convention of Mauritius of November 4, 1995, [1998] O.J. L156/3. 27 This is a small organ within the SADC Secretariat in Gaborone. It handles all the issues relating to the EPA negotiations. It is led by the EPA Chief Technical Adviser. 28 Draft Record, Fifth SADC EPA Ministers Meeting, ¶¶ 4 and 18, SADC/EPA-MIN/2004/2{A}, (November 26, 2004). 29 Boitumelo Morewagae, Chief SADC EPA Negotiator (as she then was), EPA Negotiation Support Facility, Personal Communication, (August 31, 2004). 30 Draft Annotated Agenda, Third Meeting of the SADC EPA Negotiating Forum, SADC/ENF/3/2004/2B, ¶ 3.1.iii (November 23, 2004). 31 Financing Proposal for Regional Authorizing Officer, Economic Partnership Agreement (EPA) Support Facility, DAC Code 33110, 1 (March 2005). 32 This is the reserve of funds from which the EC supports development programmes in South Africa. It is the development arms of the Trade Development and Cooperation Agreement between the EC and South Africa. 33 Shaheed Rajie, Director for the South African International Development Cooperation, Personal Communication, (July 29, 2004). 34 Draft Record, supra note 28, ¶ 11 . 35 Id., ¶ 20. 36 Praega Ramsamy, SADC Executive Secretary (as he then was), Personal Communication, SADC/8/008, (July 16, 2004). 37 Jacob Nkate, Statement delivered at the opening of the SADC-EC EPA Negotiations, Windhoek, ¶ 17 (July 8, 2004). 38 Background Briefing, Funding EPA Implementation and Adjustment, GAERC Conclusions 1-3 (October 17, 2006); see also Progress Report on SADC-EC EPA Negotiations, ¶ 11 (July 4, 2006). 39 COMESA is leading the ESA EPA negotiations. Nine SADC countries are in COMESA (Angola, the DRC, Madagascar, Malawi, Mauritius, Mozambique, Tanzania, Zambia and Zimbabwe). Of these, six are negotiating an EPA not with SADC but with ESA where COMESA is the lead negotiating body. The six states are the DRC, Madagascar, Malawi, Mauritius, Zambia and Zimbabwe. This inevitably poses questions regarding the loyalty and interests of the parties. 40 Draft Record, Seventh SADC EPA Trade Ministers Meeting, SADC/EPA-MIN/7/2006/5, ¶ 4.2 (February 12, 2006). 41 Bookie Kethusegile, Assistant Secretary General of the SADC Parliamentary Forum, Personal Communication, ASG/SADCPF/ACP-EU/20/01, (October 26, 2006). 42 Interview with Innocent Modisaotsile, Programme Manager of the EC Programme for the Support of the SADC Multi-sectoral Response to HIV/AIDS, (June 15, 2007, 12:15hrs-12:45hrs). 43 The negotiations are taking place at three main institutional levels: ministers, senior officials and technical experts. 44 Banny Molosiwa, Permanent Secretary at the Ministry for Trade and Industry in Botswana and SADC EPA Chief Negotiator Personal Communication, CTI/1/9/18 XXXV (65), (February 21, 2006). 45 Draft Record, Sixth Meeting of the SADC EPA Senior Officials, Maseru, SADC/SOM/6/2006/5, ¶ 3.6 (September 20-21 2006). 46 SADC Group EPA negotiations is led by the Trade Minister in Botswana. 47 SADC, Negotiations for an Economic Partnership Agreement with the European Community: First Progress Report for Quarter Ending September 2004, SADC/EPA/2/2004/6, ¶ (September 5, 2004). 48 Boitumelo Gofhamodimo, SADC EPA CTA, Personal Communication, SADC 8/008/4 IX, (August 4, 2006). * LLD candidate, Institute for European Studies (IES), Vrije Universiteit Brussel; doctoral fellow United Nations University - Comparative Regional Integration Studies (UNU-CRIS) Bruges. ** Professor of International Law, Vrije Universiteit Brussel. He is also Reader in Law at the University of Westminster Law School, London. |
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