Journal of Private International Law Conference...
66
Private International Law in Africa: The Past, Present and Future RICHARD FRIMPONG OPPONG The development of private international law has stagnated in Africa for some time now. This is reflected in the neglected and undeveloped state of the subject, and the near absence of Africa in international processes, academic forums, writings, and institutions that have significance for the subject. This article explores the present and future state of the subject in Africa by situating it in a historical context. It challenges the often unarticulated assumption of writers on private international law in Africa that the subject and issues it addresses came to Africa only after the advent of colonization. It suggests that although the specific rules may be difficult to ascertain, conflict of laws problems existed in pre-colonial Africa and were, consistent with current theories on pre-modern societies, addressed by a mixture of practices and mechanisms that tended towards conflicts avoidance and lex forism. It notes that during the colonial period the subject developed without any clear theoretical underpinnings, was deployed to fulfil narrow political and commercial goals, and was largely insulated from international developments. The article argues that a new dawn is rising in which the subject will occupy a prominent place with regard to many issues in Africa. It examines how an emerging academic interest in the subject, current economic integration initiatives, harmonization of laws, drive to promote trade and investment, constitutionalism and human rights, and other developments will impact private international law in Africa. I. THE PRESENT STATE OF PRIVATE INTERNATIONAL LAW IN AFRICA A. Introduction In 1947, Professor Cheshire published his “Plea for a Wider Study of Private International Law.” 1 In 1948, his article was This article is written mainly from the perspective of English speaking Africa. Lecturer in Law, Lancaster University Law School. LL.B., BL (Ghana), LL.M (Cantab), LL.M (Harvard). Contact: [email protected]. 1 1 INT’L L. Q. 14 (1947). 1
Transcript of Journal of Private International Law Conference...
Private International Law in Africa: The Past, Present and Future
RICHARD FRIMPONG OPPONG
The development of private international law has stagnated in Africa for some time now. This is reflected in the neglected and undeveloped state of the subject, and the near absence of Africa in international processes, academic forums, writings, and institutions that have significance for the subject. This article explores the present and future state of the subject in Africa by situating it in a historical context. It challenges the often unarticulated assumption of writers on private international law in Africa that the subject and issues it addresses came to Africa only after the advent of colonization. It suggests that although the specific rules may be difficult to ascertain, conflict of laws problems existed in pre-colonial Africa and were, consistent with current theories on pre-modern societies, addressed by a mixture of practices and mechanisms that tended towards conflicts avoidance and lex forism. It notes that during the colonial period the subject developed without any clear theoretical underpinnings, was deployed to fulfil narrow political and commercial goals, and was largely insulated from international developments. The article argues that a new dawn is rising in which the subject will occupy a prominent place with regard to many issues in Africa. It examines how an emerging academic interest in the subject, current economic integration initiatives, harmonization of laws, drive to promote trade and investment, constitutionalism and human rights, and other developments will impact private international law in Africa.
I. THE PRESENT STATE OF PRIVATE INTERNATIONAL LAW IN AFRICA
A. IntroductionIn 1947, Professor Cheshire published his “Plea for a Wider Study of Private International Law.”1 In 1948, his article was reprinted in the South African Law Journal.2 It is impossible to estimate the extent to which the paper directly encouraged the study of the subject in Africa in general, and in South Africa in particular. What is certain is that private international law is a neglected and highly underdeveloped subject in Africa. Professor Forsyth has described it as “the Cinderella subject seldom studied [and] little understood.”3 P.S.G. Leon also observed that it is a subject which does not command great attention amongst South African (substitute: African) lawyers, occupies a modest part of the average university curriculum, and remains largely unfamiliar to the older generation of practicing lawyers.4
This article is written mainly from the perspective of English speaking Africa. Lecturer in Law, Lancaster University Law School. LL.B., BL (Ghana), LL.M (Cantab), LL.M
(Harvard). Contact: [email protected]. 1 1 INT’L L. Q. 14 (1947).2 65 S. AFR. L. J. 213 (1948).3 CHRISTOPHER F. FORSYTH, PRIVATE INTERNATIONAL LAW: THE MODERN ROMAN-DUTCH LAW
INCLUDING THE JURISDICTION OF THE HIGH COURT 43 (2003). 4 P.S.G. Leon, Roma non locuta est: The Recognition and Enforcement of Foreign Judgments in South
Africa, 16 COMP. & INT’L L. J. SOUTHERN AFR. 325 (1983).
1
Indeed, there is a dearth of writing and activity on the subject; textbooks are few, 5
commentaries, articles, and cases come sporadically, and engagement with the international community for the subject’s development is minimal. This part examines Africa’s involvement in the current development of the subject, the state of the law on selected private international law issues, and Africa’s continuing struggle with internal conflict of laws problems.
B. Africa’s Participation in the Present Development of Private International LawThe study and development of private international law in the region has stagnated because Africa has largely been excluded from, and not actively engaged with, many of the contexts in which the subject’s development has been promoted in other jurisdictions. This is consistent with Kalensky’s observation that the material conditions of the life of a society at any given stage influence the development of private international law.6 Among these factors is the growth in transnational family relationships, international trade and investment, large-scale immigration, technological advancement, global transportation, and communication. The comparative isolation of Africa from these phenomena has meant it has not been called upon to address the challenging private international law issues they bring as frequently as many other parts of the world. Since these developments are associated with economic advancement, the underdeveloped state of private international law in Africa is indicative of greater and more telling problems facing the continent. They are the problems of isolation from international legal developments, and the non-appreciation of the importance of a developed legal infrastructure as a key prerequisite for all commercial activities.
As a subject with both national and international dimensions, private international law provides a barometer for measuring the extent to which a country’s legal system engages with other legal systems. This engagement is fostered by the personal and commercial interactions between the natural and legal persons in the respective legal systems. Globalization is the defining characteristic of our age. The interactions it generates condition economic and social development. It is no happenstance that all advanced legal systems, such as those of the United Kingdom, United States, Canada, Australia, and the European Union, have well-developed private international law regimes. They are also very active participants in its international development. The opening up of China’s economy to the outside world has positioned the subject as an indispensable part of that country’s legal infrastructure as well, and Chinese academics are consciously exposing the world to China’s practice of private international law.7 If Africa is really serious about engaging with the world, especially in the
5 The few recent texts on the subject include, FORSYTH, supra note 3; CHRISTIAN SCHULZE, ON
JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF FOREIGN MONEY JUDGMENTS (2005);
JOHN KIGGUNDU, PRIVATE INTERNATIONAL LAW IN BOTSWANA, CASES AND MATERIALS (2002);
JOHN ADEMOLA YAKUBU, HARMONISATION OF LAWS IN AFRICA (1999); OLUWOLE AGBEDE, THEMES
ON CONFLICT OF LAWS (1989). 6 PAVEL KALENSKY, TRENDS OF PRIVATE INTERNATIONAL LAW 23 (1971).7 See e.g., Qingjiang Kong & Hu Minfei, The Chinese Practice of Private International Law, 3
MELBOURNE J. INT’L L. 414 (2002) (reporting that this aspect of the Chinese legal system has
developed so rapidly that it is a formidable task for academic lawyers to keep abreast of its changes);
2
areas of trade and commerce, it also may have to devote a little more time to its private international law regime.
The lack of activity on issues of private international law in Africa is particularly telling at the continental level. Unlike other regions of the world, African states currently have no multilateral convention dealing directly with any issue of private international law of significance. The existing treaties are bilateral agreements between countries for the recognition and enforcement of foreign judgments. However, the impact of private international law can be seen in some regional economic treaties in Africa.8 These treaties have borrowed from the techniques of private international law by including provisions that purport to “transform” judgments of their established regional courts into judgments equivalent to national ones for the purpose of enforcement.9
In Africa, the process of litigation has become as important as the substantive issues it engages.10 International judicial cooperation is now indispensable for the effective administration of justice in cases involving foreign elements. Some African countries have responded to this by becoming parties to treaties dealing with aspects of international judicial
Mo Zhang, Choice of Law in Contracts: A Chinese Approach, 26 NW. J. INT’L L. & BUS. 289 (2006);
Huang Jin & Du H. Fang, Chinese Judicial Practice in Private International Law 2002, 4 CHINESE J.
INT’L L. 647 (2005); Yongping Xiao & Zhengxin Huo, Ordre Public in China’s Private International
Law, 53 AM. J. COMP. L. 653 (2005).8 This can be seen as partly evidencing the increasing interaction between public and private
international law. See generally Lucy Reed, Mixed Private and Public International Law Solutions to
International Crisis, 306 RECUEIL DE COURS 177 (2003).9 See, e.g., art. 25 of the Treaty Establishing the Organisation for the Harmonisation of Business
Laws in Africa; art. 44 of Treaty Establishing the East African Community; art. 32(1)(2)(3) of
Southern African Development Community, Protocol on Tribunal and Rules of Procedure Thereof;
art. 40 of Treaty Establishing the Common Market of East and Southern Africa. This departs from the
classic public international law means of enforcing judgments of international courts such as reliance
on international non-judicial institutions, diplomacy, self-help, and negotiations. The goal of these
provisions appears to be to provide an effective and expedited judicial means of enforcing judgments
of international courts. This mode of enforcement is particularly important for individuals who litigate
directly before international courts, and are subsequently disadvantaged by the power-centered
traditional international law enforcement mechanisms. 10 In cases, African courts have been grappling with questions relating to service of documents abroad
and the admissibility of foreign evidence and documents. See e.g., Fonville v. Kelly III, [2002] 1 E.A.
71; Willow Investment v. Mbomba Ntumba, [1997] T.L.R. 47; Microsoft Corp. v. Mitsumi Computer
Garage Ltd., [2001] K.L.R. 470; Pastificio Lucio Garofalo SPA v. Security & Fire Equipment Co.,
[2001] K.L.R. 483; Mashchinen Frommer GmbH v. Trisave Engineering & Machinery Supplies (Pty)
Ltd., 2003 (6) SA 69; Blanchard, Krasner & French v. Evans, 2004 (4) SA 427.
3
cooperation. Four African countries, namely, Egypt, Botswana, Malawi, and the Seychelles, are party to the Hague Convention on the Service of Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters, and two, namely, South Africa and the Seychelles are party to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. In Zimbabwe, there is also legislation that provides for cooperation not only with other national but also international courts. Section 3 (2) of the 1995 Zimbabwe Civil Matters (Mutual Assistance) Act allows the Minister of Justice to extend the provisions of the Act to “any international tribunal.”11 To my knowledge, this is the first provision of its kind in the field of international judicial cooperation in civil matters in Africa.12 With the proliferation of international courts both in Africa, and indeed the world, the importance of such cooperation cannot be overemphasized. Unfortunately, treaties on the existing international courts in Africa have not clearly articulated the need for their cooperation with national courts in areas such as taking of evidence, service of documents, and, aside from a few which make provision for it, enforcement of the judgments of the international courts.13
The need for a cooperative relationship with national courts is important, especially because these international courts now allow individuals to litigate directly before them and also have jurisdiction to arbitrate disputes between individuals.
Africa’s engagement with international institutions dealing with issues of private international law has been minimal, and often indirect. There are currently only three African members of the Hague Conference on Private International Law, namely, Morocco, Egypt, and South Africa.14 Compared with membership from other regions, Africa is highly under-represented. Some African countries participate indirectly in the work of the Conference through
11 Ch. 8:02. An international tribunal is defined as:
any court or tribunal which, in pursuance of any international agreement or any
resolution of the General Assembly of the United Nations—(a) exercises any
jurisdiction or performs any function of a judicial nature or by way of arbitration,
conciliation or inquiry; or (b) is appointed, whether permanently or temporarily, for
the purpose of exercising any jurisdiction or performing any such function.12 This section appears to have been borrowed. See, e.g., § 6(1) of the UK Evidence (Proceedings in
Other Jurisdictions), Act 1975, which allows Her Majesty by Order in Council to extend the operation
of the Act to international tribunals, including arbitration tribunals appointed pursuant to international
agreements or resolution of the General Assembly of the United Nations, and § 1782(a) of the United
States Code, ch. 28, which applies to “international tribunals.”13 See, e.g., § 25 of the Protocol on the Court of Justice of the African Union [Protocol of Court of
Justice], reprinted in 13 AFR. J. INT’L & COMP. L.115 (2005), that relies on the government of the
relevant State to serve documents and procure evidence. In the absence of a specific legislation, like in
Zimbabwe, it is doubtful whether and how the government can do this. Compare art. XXVI (a) of the
Agreement Establishing the Caribbean Court of Justice that obliges national governments to enact
legislation to ensure that all national authorities “act in aid of the Court . . .”
http://www.caricomlaw.org/docs/agreement_ccj.pdf (last visited Feb. 16, 2007).
4
institutions like the Commonwealth and the Asian-African Legal Consultative Organization (formerly Asian-African Legal Consultative Committee), both of which cooperate with the Conference. As of June 1, 2007, 19 African countries were parties to a total of 12 Hague Conventions. In the area of international commercial arbitration, 29 African countries are members of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.15
Although Africa’s participation in the international development of the subject has been minimal, we should not ignore the influence of cases originating from Africa or involving Africans on the past and present development, especially of the common law rules on private international law. In the past, and even to this day, these cases continue to be cited and remain influential.16
C. Unsettled Law on Private International Law Issues A defining characteristic of private international law in Africa is the unsettled nature of many issues. Among them are choice of law in tort and contract, jurisdiction over activities on the Internet, and private international law problems arising from trusts and intellectual property. These issues are unsettled largely because the judiciary has not been called upon to address them, legislators have not taken the lead by legislating on them, and African academics have not taken the trouble to pre-shape the jurisprudence by advocating particular positions. If the past jurisprudence of the courts and their judicial style are anything to rely on, it can safely be predicted that they are likely to follow English decisions if these issues arise in a dispute before them. The unsettled nature of the law on some private international law issues in Africa is illustrated by the concept of party autonomy and choice of law in tort.
14 In 2004, Zambia was admitted to the Conference but has yet to accept the Statute of the Conference.
Until then it can attend proceedings of the Conference as an observer. I examine the relationship
between the work of The Hague Conference and Africa in greater detail elsewhere. See Richard F.
Oppong, The Hague Conference and the Development of Private International Law in Africa: A Plea
for Cooperation, 8 YBK. PRIV. INT’L L. 189 (2006).15Http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html (last visited
Feb. 16, 2007). For common law jurisdictions that are not party to this convention, a foreign arbitral
award may still be enforced under the common law or in some instances reciprocal legislation.16 See, e.g., McCabe v. McCabe, [1994] 1 F.L.R. 410 (involving a Ghanaian woman and Akan
customary law of marriage); Re Bethell, Bethell v. Hildyard, (1998) 38 Ch. 220 (facts emanating from
Botswana); Bambgbose v. Daniel, [1955] A.C. 107 (facts from Nigeria); Coleman v. Shang, [1961]
A.C. 481 (facts from Ghana); Connelly v. RTZ Corp. plc, [1998] A.C. 854 (facts from Namibia);
Lubbe v. Cape plc, [2000] 4 All E.R. 268 (facts from South Africa); British South Africa Co. v.
Companhia de Mocambique, [1893] A.C. 602 (facts from South Africa); Mark v. Mark, [2005] UKHL
42 (involving Nigerian nationals). I assume from the name of the complainant in the ECJ decision of
Owusu v. Jackson, [2005] 2 W.L.R 942 that the he has Ghanaian roots.
5
Perhaps no concept in choice of law in contract is more important than party autonomy. Apart from the “somewhat equivocal” position in the Roman-Dutch law of South Africa,17 African countries have historically not displayed hostility towards party autonomy in international contracts. There are a considerable number of cases in which party autonomy has been upheld.18 However, there are occasional dicta that show some judicial hesitance towards the concept. For example, in Fonville v. Kelly III19 it was held that a Stock Purchase Agreement, which had a State of Florida choice of law and forum clause “ousts that jurisdiction of the Kenya court regarding any dispute arising from the Agreement.”20 In Sonnar (Nigeria) Ltd. v. Partenreedri M S Nordwind,21 J.S.C. Oputa queried whether “parties by their private act [can] remove the jurisdiction vested by our Constitution in our courts.”22 To him “as a matter of public policy our courts should not be too eager to divest themselves of jurisdiction conferred on them by the Constitution and by other laws simply because parties in their private contracts choose a foreign forum and a foreign law.”23
The mischaracterization of the effect of jurisdiction agreements as “ousting” court of jurisdiction may potentially evoke judicial hostility in a setting where courts are very protective of their jurisdiction. This can undermine the enforcement of choice of law and forum agreements. Nor does it serve international administration of justice if a court, which deems its jurisdiction “ousted,” declines to grant provisional or protective orders in aid of the foreign proceedings. It is thus important for courts in Africa to appreciate that these agreements seek to influence the exercise (not the existence) of the court’s jurisdiction by asking it to enforce the intentions of the parties, as it routinely does with other contractual agreements.
Where parties do not exercise the freedom to choose the law governing their contract, there is some uncertainty in the judgments as to which law should apply. The law of the place of destination of the consigned goods,24 of performance of the contract,25 the law of the place
17 FORSYTH, supra note 3, at 298.18 See, e.g., Friendship Container Manufacturers Ltd. v. Mitchell Cotts (K) Ltd., [2001] 2 E.A. 338
(Kenya); C.I.L.E.V. v. Chiavelli, [1967] G.L.R. 651 aff’d in [1968] G.L.R. 160 (Ghana); Commet
Shipping Agencies (Nigeria) Ltd. v. Panalpina World Transport (Nigeria) Ltd., [1990] L.R.C.
(Comm.) 206 (Nigeria). 19 Supra note 10.20 Id. 80. See also Sonnar (Nigeria) Ltd. v. Partenreedri M S Nordwind, [1988] L.R.C. (Comm.) 191,
211(Nigeria) where Oputa J.S.C. characterized these clauses as attempts to “remove” the jurisdiction
properly and legally vested in our courts or “rob” the courts of its jurisdiction.21 Sonnar id. 22 Id. 210. He described this as a “vital and radical question.”23 Id. 210.24 African Continental Bank Ltd. v. Swissair Air Transport Company Ltd., [1968] 1 A.L.R. (Comm.)
202, 205-06 (Nigeria).25 Karachi Gas Company Ltd. v. Issaq, [1965] A.L.R. (Comm.) 35, 47-48 (Kenya).
6
where the transactions occurred and the cause of action arose,26 and the all-encompassing most substantial connection test27 have all been applied at one time or another.
The area of international torts has generated considerable jurisprudence in recent times. Industrial and technological developments, as well as advancements in international transportation, have made international torts a fertile area of private international law problems. But so far, there has not been any authoritative judicial pronouncement in Africa on the topic. A recent opportunity to decide the issue came in the Kenya case of Rage Mohammed Ali v. Abdullahim Maasai.28 The case arose out of an accident in Uganda. Both parties were citizens and residents of Kenya. The plaintiff brought a claim in contract (instead of tort) for general and special damages arising from injuries sustained in the accident. The court disallowed the claim. The plaintiff was unable to prove that he was an employee of the defendant. To the court, “this is a simple and straight forward case of a motor vehicle accident that took place in a foreign country outside the limits of the jurisdiction of the courts in Kenya.” Neither counsel nor the court raised the possibility of a claim in tort and the concomitant choice of law issues that would have called for resolution.
There is currently a trend towards upholding the lex loci delicti commissi as the choice of law rule in torts.29 Australian30 and Canadian31courts have abandoned the English double actionability rule. The United Kingdom has also reformed its law on this issue by statute.32
Whether African countries will follow this trend remains to be seen. In Nigeria, case law relating to intra-state torts supports both the double actionability rule and the lex loci delicti principle.33 However, the position on international torts is unclear. A Ghanaian court has expressed a preference for parties to sue in the state in which “the cause of action arose and according to whose law the liability is to be determined,”34 but it is yet to be decided what law will apply if the court decides to assume jurisdiction. In South Africa, the consensus amongst scholars is that the issue is res nova, and thus for the Courts to decide which of the various approaches to choice of law in torts they want to adopt.35
D. The Continuing Struggle with Internal Problems
26 Adan Deria Gedi v. Sheik Salim El Amoudi, [1964] 1 A.L.R. (Comm.) 385, 390-91 (Somalia).27 Western Credit (Africa) (Proprietary) Ltd. v. Mapetla, [1965] A.L.R. (Comm.) 361, 365
(Basutoland, now Lesotho); Ackerman v. Societe Generale de Compensation, [1972] 3 A.L.R.
(Comm.) 329 (Ghana).28 [2005] eKLR.29 See generally Reid Mortensen, Homing Devices in Choice of Tort Law: Australian, British, and
Canadian Approaches, 55 I.C.L.Q. 839 (2006).30 Regie National des Usines Renault SA v. Zhang, (2002) 210 C.L.R. 491.31 Tolofson v. Jensen, [1994] 3 S.C.R. 1022, 120 D.L.R. (4th) 289.32 Private International Law (Miscellaneous Provisions) Act 1995.33 AGBEDE, supra note 5, at 159-79.34 Signal Oil & Gas Company v. Bristow Helicopters Ltd., [1976] 1 G.L.R. 371, 379 (Ghana).35 FORSYTH, supra note 3, at 326-27 and the writers cited therein.
7
While the study and development of private international law in Africa has stagnated, African countries have been grappling with conflicts problems of a particular kind to which much of African academic and judicial attention has historically been devoted.36 They are the problems that arise from the co-existence of multiple normative systems within the same jurisdiction. This area of study, dubbed internal or intranational conflict of laws,37 was particularly well-developed in the colonial and immediate post-colonial era.38 During these times, national authorities had to address how numerous normative systems such as customary law, religious law, and state law can be made to co-exist. Significantly, it was the problems generated by intranational conflict of laws that sowed the seed for the development of private international law in Europe. It was the interaction between the laws of the Italian city-states emerging after the collapse of the Roman Empire that laid the core foundation for the discipline.
The problems of internal conflict of laws mirror those of private international law, but they are founded on a different basis. Internal conflict of laws problems reflect a struggle for supremacy and place among ideals: be they cultural, economic, or political. Approaches to internal conflict of laws problems affect the very fabric of the society in which they appear, and can actually have an impact on national cohesion in a way unparalleled in private international law. These approaches should acknowledge the existing legal pluralism, aim at fostering social cohesion, and should not be unnecessarily repressive of normative systems. Such concerns are not ordinarily presented by private international law problems. Indeed, Professor Allott has counselled against the adoption of private international law solutions to internal conflict of laws problems.39
In Africa, the problem of internal conflict of laws was the result of the pragmatic colonial, and subsequently, post-independence policy of allowing indigenous legal institutions to co-exist and interact with colonial, i.e., state law. Not all African countries, however, allowed this co-
36 This is by no means only an African problem. See, e.g., Pim Haak, Domestic Conflict of Laws: A
Negligible Area in Conflict of Laws? A Dutch Opinion, in INTERNATIONAL CONFLICT OF LAWS FOR
THE THIRD MILLENNIUM, ESSAYS IN HONOUR OF FRIEDRICH K. JUENGER 215 (Patrick J. Borchers &
Joachim Zekoll eds., 2000). 37 Other terms used for this area of study include interregional law, non-international conflict of laws,
internal private international law, quasi-private international law, inter-provincial law and
interterritorial law.38 See, e.g., Kwamena Bensti-Enchill, Choice of Law in Ghana since 1960, 8(2) UNI. GHANA L. J. 59
(1971); ANTONY ALLOTT, NEW ESSAYS IN AFRICAN LAW 107-44 (1970); E.G. Unsworth, The
Conflict of Laws in Africa, 2 RHODES-LIVINGSTONE J. 49 (1944); J.N. Matson, Internal Conflicts of
Laws in the Gold Coast, 16 M.L.R. 469 (1953); J.N.D. Anderson, The Conflict of Laws in Northern
Nigeria, 1 J. AFR. L. 87 (1957); G.F.A. Sawyerr, Internal Conflict of Laws in East Africa, in EAST
AFRICAN LAW AND SOCIAL CHANGE 110 (G.F.A. Sawyerr ed., 1967).39 ALLOTT, supra note 38, at 116 where he notes “. . . the courts must exercise extreme caution in
making use of private international law and its solutions. Private International Law, it hardly needs
saying, is organised on a quite different basis from that upon which internal conflict rest.”
8
existence, at least in theory. In Ethiopia and Ivory Coast (now Cote d’Ivoire), customary law was seen as an obstacle to development and national unity; it was therefore abandoned in favor of imported civil law, which provided a single legal system for each and every person.40
Writing about the Ivory Coast, Levasseur noted: “it was thought that national unity could not be achieved if the 60-odd customs in existence in the country were allowed to persist and survive . . . . the survival of those customs consecrated regionalism and tribalism.” 41 Zaire, Burundi, and Rwanda embarked on similar attempts at providing a unified system of law.42 In contrast, countries that have allowed for the co-existence of customary and state law have provided choice of law rules to regulate various transactions. Some of these rules are very detailed43 while others are terse.44
The main field for such internal problems is choice of law. It was often addressed in colonial legislation. There was little or no opportunity for the sometime abstruse but highly developed theoretical discourse that attended similar problems in continental Europe. It is impossible to estimate the extent to which the absence of these discussions affected the future course of the subject in Africa but at least arguably, it laid a weak foundation for its future development. Internal conflict of laws continues to be a source of fascinating academic writings 45 and
40 See, e.g., Rene David, A Civil Code for Ethiopia: Considerations on the Codification of the Civil
Law in African Countries, 37 TUL. L. REV. 187 (1962-63).41 ALAIN A. LEVASSEUR, THE CIVIL CODE OF IVORY COAST 21 (1976).42 See Filip Reyntjens, The Development of the Dual Legal System in Former Belgian Central Africa
(Zaire-Rwanda-Burundi), in EUROPEAN EXPANSION AND LAW, THE ENCOUNTER OF EUROPEAN AND
INDIGENOUS LAW IN THE 19TH AND 20TH CENTURY AFRICA AND ASIA 111 (W.J. Mommsen & J.A.
De Moor eds., 1992).43 See, e.g., Ghana: Courts Act 1993 Act 459, § 54.44 See, e.g., Kenya: Judicature Act Ch. 8, § 3 which provides:
. . . courts shall be guided by African customary law in civil cases in which one or
more of the parties is subject to it or affected by it, so far as it is applicable and is not
repugnant to justice and morality or inconsistent with any written law, and shall
decide all such cases according to substantial justice without undue regard to
technicalities of procedure and without undue delay.
Zimbabwe: Customary Law and Local Courts Act Ch. 7: 05, § 8.45 See, e.g., Akolda M. Tier, Conflict of Laws and Legal Pluralism in the Sudan, 39 I.C.L.Q. 611
(1990); T.W. Bennett, Conflict of Laws-The Application of Customary Law and the Common Law in
Zimbabwe, 30 I.C.L.Q. 59 (1981); THE INTERNAL CONFLICT OF LAWS IN SOUTH AFRICA (A.J.G.M.
Sanders ed., 1990).
9
intriguing judicial decisions.46 In particular, family law, property, and succession have been, and continue to be, rife with internal conflict of laws problems.47
To fully appreciate the state of affairs recounted above, it is important to examine the history and treatment of private international law issues in pre-colonial and colonial Africa. It is to this that I turn my attention to.
II. GOING BACK IN TIME: PRIVATE INTERNATIONAL LAW IN PRE-COLONIAL AND COLONIAL AFRICA
A. IntroductionTo understand fully the present state of private international law in Africa, it is important to investigate the history of the subject in pre-colonial and colonial Africa by asking a number of questions. To what extent were private international law issues present in pre-colonial and colonial Africa?48 How were these issues addressed? How did the approach to addressing the issues affect the development of the subject? What was the extent of Africa’s involvement in the intellectual development of the subject in that period? The thesis of this part is that the history of private international law over this period in Africa is the history of a subject that developed without any clear theoretical underpinnings, based on pragmatism rather than abstract legal reasoning, fulfilling a narrow political and commercial goal, and that remained largely insulated from international developments. These characteristics continue to shape the development of the subject.
B. The Pre-Colonial TimesAn attempt to construct the history of private international law in pre-colonial Africa should begin with a caveat on the absence of documentation on the subject. Indeed, speaking generally, African legal history is still virgin academic territory.49 Little work has been done on African legal history, especially in the pre-colonial period. For example, except in South Africa, systematic law reporting or case documentation is a relatively recent phenomenon.50
These make researching African law a daunting task. Specifically on private international law
46 In recent times the conflicts have taken the form of conflicts between customary laws and legislation
on human rights norms. See, e.g., Ephrahim v. Pastory and Kaizilege, (1992) 87 I.L.R. 106 (on conflict
between human rights law and a customary rule barring women from selling land); Amaning alias
Angu v. Angu II, [1984-86] 1 G.L.R. 309, 324 where it was held that where customary law is in
conflict with equity the latter would prevail; Otieno v. Ougo (No 4), [1987] K.L.R. 407 (on the law
applicable to the burial of a native of the Luo tribe of Kenya).47 Internal conflict of laws problems are not limited to these areas. See, e.g., Shaheen v. Duralia,
(1920-36) A.L.R. (Sierra Leone) 3, involving a contract between a native of Sierra Leone and a Syrian
in which the former sought to rely on a local custom.48 Various parts of Africa came under colonial domination at different times. In this article, “pre-
colonial” is meant to cover the period before 1900, and “colonial” the period after 1900.49 See Jay Gordon, African Law and the Historian, 8 J. AFR. HISTORY 335 (1967).50 E.Kofi Tetteh, Law Reporting in Anglophone Africa, 20 I.C.L.Q. 87 (1971).
10
in Africa, there is a dearth of material on its pre-colonial history. Most of the existing works of relevance are written from an anthropological perspective. It is from these and other historical works that I examine whether conflict of laws problems existed in pre-colonial Africa, and, if so, how they were addressed.
A necessary condition for conflict of laws problems to arise is the presence of social and commercial intercourse between people subject to different legal systems.51 For example, the emergence in the 12th and 13th century of Italian city-states with their distinct legal systems, and the growth of social and commercial relationships between their subjects, generated conflict of laws problems solutions to which laid the foundation for subject’s development in continental Europe.52 Interactions between subjects of different legal systems may be compelled by geographic proximity, commercial necessity, or even a colonial encounter. In pre-colonial Africa there existed empires, tribes, and communities with distinct legal systems. There were significant differences between tribal laws. For example, there were matrilineal and patrilineal family systems for various tribes. With this came different rules on marriage, custody, maintenance, and succession. Children from matrilineal tribes were part of the family and inherited intestate property and office through their mother’s line. Those from patrilineal tribes were part of the family and inherited intestate property and office through their father’s line. In a marriage between spouses from matrilineal and patrilineal tribes, conflicts problems arise regarding which law determines which family the child belongs to and which of the parents it can inherit.53 There were also social and trading relations among subjects of these legal systems, and indeed, with the outside world.54 For example, salt generated a huge volume of trade between people of the interior and the coastal African regions.55 Thus, the condition for conflict of laws problems existed in pre-colonial Africa.
Indeed, there have been occasional references to questions of conflict of laws arising in ancient Egypt.56 In his study of the social relations between the ancient Egyptians and the Israelites, Metzler reveals a clear appreciation of the impact of conflict of laws on
51 Ronald Graveson, The Origins of the Conflict of Laws, in FESTCHRIFT FUR KONRAD ZWIEGERT 93,
99 (Herbert Bernstein et. al. eds., 1981).52 Rodolfo de Nova, Historical and Comparative Introduction to the Conflict of Laws, 118 RECUEIL
DES COURS 441-77 (1966). For an account of earlier conflict of laws situation in Europe see generally
Simeon L. Guterman, The First Age of European Law: The Origin and Character of the Conflict of
Laws in the Early Middle Ages, 7 NEW YORK LAW FORUM 131 (1961).53 In recent times, the enactment of statutes providing for uniform laws on inheritance has done away
with some of these problems. See e.g., Intestate Succession Law 1981 PNDC Law 111 of Ghana.54 See generally F.J. NOTHLING, PRE-COLONIAL AFRICA: HER CIVILISATIONS AND FOREIGN
CONTACTS (1989).55 WALTER RODNEY, A HISTORY OF THE UPPER GUINEA COAST, 1545-1800 19-20 (1970); PRE-
COLONIAL AFRICA TRADE, ESSAYS ON TRADE IN CENTRAL AND EASTERN AFRICA BEFORE 1900
(Richard Gray & David Birmingham eds., 1970). 56 KALENSKY, supra note 6, at 46, n.1, 47 n.4.
11
inheritance.57 Juenger also cites reports of an Egyptian edict dating back to 120-118 BC containing what was arguably an implicit choice of law rule.58 Smith provides an account of a developing concept of sovereign immunity in pre-colonial West Africa.59
It may be impossible to estimate the extent of these conflicts problems or to provide an exact account of the rules or mechanisms used for resolving them.60 What can generally be concluded from the existing works is that the conflicts of laws situation in pre-colonial Africa was a mixture of practices which functionally served as conflicts avoidance rules, and that there was a tendency to apply the lex fori to issues that might involve consideration of a foreign law. To modern-day private international lawyers, this should not come as a surprise, for as Juenger has ably demonstrated, choice of law rules in the modern sense are clearly not the only possible responses to conflicts problems.61
The nature of the trade relations among the pre-colonial African tribes, kingdoms, and communities were unlikely to give rise to many conflict of laws problems. Contract law has traditionally presented a fertile avenue for the development of conflict of laws. The diversity of potential connecting factors, the planned nature of contractual relations, and the different issues that could arise account for this.62 Also, the time lag between execution and performance provides fodder for many conflict of laws problems in international contracts. In pre-colonial Africa, contracts were mainly executed,63 unwritten, marked by informality, and usually involved the direct and immediate exchange of commodities between the parties. The immediate character of contractual relations reduced the possibility of problems arising between the exchange of promises and performance.
Other customary laws and practices might have minimized the possibility of conflict of laws problems arising from inter-tribal relations. For example, among some tribes of the Upper Guinea Coast, one could not transfer land to anyone outside the tribe.64 Other tribes in Africa have similarly strict procedural restrictions on the alienation of property to strangers. These 57 ED METZLER, CONFLICT OF LAWS IN THE ISRAELITE DYNASTY OF EGYPT (1991).58 FRIEDRICH K. JUENGER, CHOICE OF LAW AND MULTISTATE JUSTICE, SPECIAL EDITION 7-8 (2005).59 Robert Smith, Peace and Palaver: International Relations in Pre-Colonial West Africa , 14 J. AFR.
HISTORY 599 (1973).60 Bennett, supra note 45, at 65 (where he notes that there is little record of the choice of law rules
developed by African courts to govern conflicts between different systems of native law). Aside the
absence of documentation, a characteristic of native administration of justice was its focus on reaching
equitable solutions rather than providing and enforcing clear-cut propositions of law.61 JUENGER, supra note 58, at 10.62 PETER M. NORTH & J. J. FAWCETT, CHESHIRE AND NORTH’S PRIVATE INTERNATIONAL LAW 533-34
(1999).63 See Yash P. Ghai, Customary Contracts and Transaction in Kenya, in IDEAS AND PROCEDURES IN
AFRICAN CUSTOMARY LAW 333, 344 (Max Gluckman ed., 1969), where he denies the existence of a
generalized concept of executory contracts in customary law of Kenyan tribal societies.64 RODNEY, supra note 55, at 35.
12
restrictions led some to conclude that there was not a system of private property in Africa. 65
Through these restrictions, the natives inadvertently avoided many of the conflict of laws issues that come with the acquisition of interests in property by foreigners. Additionally, aliens who became integrated into a tribal community became subject to its laws and could even be considered a member of the community.66 Thus, the issue of applying a foreign law to such an assimilated alien was avoided. The discouragement of inter-tribal marriages is yet another instance of a customary practice that tended to avoid conflict of laws problems, especially between matrilineal and patrilineal communities. Andrew Chukwuemerie’s work also reveals that, although pre-colonial African communities also frequently resorted to arbitration, it was very much intra-tribal and hardly inter-tribal in the sense that it involved people from other kingdoms.67 This avoided potential conflict of laws that could have arisen in inter-tribal arbitration. These conflicts avoidance techniques suggest that pre-colonial Africans had an appreciation of the legal challenges arising from the interaction of multiple legal systems.68
Some African writers agree with the thesis that pre-modern tribes applied the lex fori to problems involving a foreign element.69 Nwabueze’s work on pre-colonial dispute resolution among trading tribes of Nigeria suggests that such disputes were likely resolved by applying the lex fori.70 Bennett also supports this thesis of lex forism in native courts.71 The adherence to the lex fori might have been compelled by the dynamics of power and pragmatism rather than legal reasoning inspired by any theory of conflict of laws. It is nearly impossible to conceive of Africans of pre-colonial times applying any law other than their own if account is taken of the unwritten nature of native laws and the linguistic limitations of their time.
65 See, e.g., Amodu Tijani v. Secretary, Southern Nigeria, [1921] 2 A.C. 399, 404, where the Privy
Council held “the notion of individual ownership is quite foreign to native ideas. Land belongs to the
community, the village or the family, never to the individual.”66 Omane v. Poku, [1972] 1 G.L.R. 295.67 Andrew Chukwuemerie, The Internationalisation of African Customary Arbitration, 14 AFR. J.
INT’L & COMP. L. 143, 150-51 (2006).68 To modern day private international lawyers, these techniques presage present day conflicts
avoidance techniques founded on party autonomy, standard form contracts, resort to arbitration, and
international unification of substantive law. See generally Clive M. Schmitthoff, Conflict Avoidance in
Practice and Theory, 21 LAW & CONTEMP. PROBS. 429 (1956).69 See, e.g., WILLIAM BURGE, COMMENTARIES ON COLONIAL AND FOREIGN LAWS: GENERALLY, AND
IN THEIR CONFLICT WITH EACH OTHER, AND WITH THE LAW OF ENGLAND VOL. 1, 3 (1838), who
suggests that states of remote antiquity admitted no other law than that of “the country in which the
right is adjudicated.”70 Remigius N. Nwabueze, Historical and Comparative Contexts for the Evolution of Conflict of Laws
in Nigeria, 8 ILSA J. INT’L. & COMP. L. 31 (2001).71 Bennett, supra note 45, at 65.
13
The available records also suggest that during the years after the arrival of the European traders around the middle of the 15th century, and thus the introduction of another potentially applicable system of law, the propensity to apply the lex fori to issues was extended to them as well. Before the 19th century, legal and commercial interactions between Africans and their European counterparts were characterized by an asymmetry of power in which the latter depended on the former for protection, and had to accommodate African laws and customs.72
Portuguese traders in 16th century Upper Guinea Coast had to recognize the laws of the land and the sovereignty of its rulers. This customary law governed the property rights of these traders. For example, any ship that ran aground became the property of the tribes.73 The African rulers also took ownership of all property in the possession of a trader when he died. This inheritance rule ignored the rights other claimants may have had on the property in the possession of the deceased. The application of native law to matters involving Europeans extended to their social relations. Among the Sape group of the Upper Guinea Coast, European traders were offered one of the chief’s wives to cohabit: “Fidelity was demanded from him, and any failure in this respect made him culpable before African law. He was obliged to clothe her and their offspring, and in fact, to all intents and purposes, the lancado was thus legally married.”74
With time, the application of the lex fori was met with resistance from the European traders, especially as it affected their property rights. This resistance might have been inspired not so much by any desire to have the law of their respective home countries applied to their transactions or disputes, but rather by displeasure with the content and effect of applying the lex fori. In the Gold Coast, European traders established a parallel judicial system within the forts, ostensibly to protect their interests. Gradually, this jurisdiction was extended to areas around the forts, thus giving them greater control over the dispute resolution process. Indeed, from the early 19th century onwards, the Europeans began to suppress native law through treaties with the natives and laid the foundation for the subsequent colonial enterprise. These treaties protected Europeans interests by granting them jurisdiction over disputes with African tribes and among African tribes. In 1844, Fante chiefs in the Gold Coast agreed to acknowledge the jurisdiction of those exercising authority on behalf of Her Majesty the Queen of Great Britain and Ireland over what was essentially their sovereign territory.75 A treaty in 1895 for the protection of the people of Adansi provided in Articles IV and V that disputes should be referred to the Governor of the Gold Coast whose decision shall be final and binding upon all parties concerned.76 Similarly, in an 1889 treaty with the chiefs of Makololo, the rights of British subjects to build houses and possess property was to be governed by native laws, and differences between the British subjects and the people of
72 LAW IN COLONIAL AFRICA 9-11 (Kristin Mann & Richard Roberts eds., 1991).73 RODNEY, supra note 55, at 86-88.74 Id., 83-84. The word “lancados” was used to refer to the early European trader. The applicability of
native law to issues, such as maintenance and childcare involving Europeans in concubinal relations
with Africans, has been consistently affirmed in subsequent case law. See Duncan v. Robertson,
(1891) Sarbah Fanti Customary Law Report 134; Adjei and Dua v. Ripley, [1956] W.A.L.R. 62.75 See Bond of 1844, reprinted in JOHN M. SARBAH, FANTI CUSTOMARY LAW 281-82 (3d ed., 1968).76 Treaty of Friendship and Protection, reprinted in J.M. SARBAH, FANTI CUSTOMARY 306-10 (3d ed.,
1968).
14
Makololo were to be adjudicated by a duly authorized representative of Her Majesty.77 It is possible that similar provisions were replicated in agreements with other tribes. It is unlikely that the African chiefs and their European counterparts had conflict of laws issues in mind when they entered into these agreements. However, according to our present understanding, they were clear choice of law and forum agreements.
C. The Colonial TimesWriters on private international law in Africa have generally assumed that the history of the subject began with the advent of colonization. To them, the legal foundations of the subject are the colonial legislation that made the common law, the doctrines of equity and Statutes of General Application, and part of the laws of the British colonies.78 Section 14 of the Supreme Court Ordinance of 1876 of the Gold Coast is an example. It provided: “the common law, the doctrines of equity, and Statutes of general application which were in force in England at the date when the colony obtained a local legislature, shall be in force within the jurisdiction of the court.” Through this and similar legislation, the body of English common law known as private international law was introduced into the colonies.79 The statutes also enjoined the courts to apply customary law to specific subject matters and people. This set the stage for internal conflict of laws problems: When could a court assume jurisdiction over a matter involving customary law or over a native? Which law should apply if the court assumes jurisdiction? Which law should be used to characterize a particular problem? What happens in the event of conflict between different customary law and English law or between customary laws?
It is important to note that in the 19th century when these statutes were enacted for the colonies, English private international law was still in its infancy.80 Although its development law had overcome many of the limitations on its growth in the preceding years, and English treatises on the subject had began to appear,81 it was not as advanced as in continental Europe. Two principal features of English private international law at this time left their mark on the treatment of the subject in the colonies. First was its historical resistance towards foreign law, reflected in the centuries-long common law refusal to take cognizance of foreign cases, and the subsequent evolution of various fictions meant to turn foreign cases into local actions.82
Second was the tendency to have separate courts administering distinct bodies of law 77 Reprinted in JOHN WESTLAKE, CHAPTERS ON THE PRINCIPLES OF INTERNATIONAL LAW 153 (1894).78 But see Nwabueze, supra note 70, at 31-60.79 U.U. Uche, Conflicts of Laws in a Multi-Ethnic Setting: Lessons from Anglophone Africa, 228
RECUEIL DES COURS 273 (1991).80 See generally Alexander N. Sack, Conflict of Laws in the History of English Law, in LAW: A
CENTURY OF PROGRESS VOL. 3, 342 (A. Reppy ed., 1937).81 See, e.g., WILLIAM BURGE, COMMENTARIES ON COLONIAL AND FOREIGN LAWS: GENERALLY, AND
IN THEIR CONFLICT WITH EACH OTHER, AND WITH THE LAW OF ENGLAND VOL 1, 2, 3, 4 (1838); JOHN
WESTLAKE, A TREATISE ON PRIVATE INTERNATIONAL LAW, OR, THE CONFLICT OF LAWS: WITH
PRINCIPAL REFERENCE TO ITS PRACTICE IN THE ENGLISH AND OTHER COGNATE SYSTEMS OF
JURISPRUDENCE (1858).82 See Sack, supra note 80.
15
ostensibly to avoid conflict of laws problems. In the colonies, these two features manifested themselves in the English attitude towards customary law and in the institution of dual court structures. Proof of the existence of customary law was treated as a question of fact,83 and even when proved, it could be overridden as repugnant to “equity, natural justice and good conscience.” In treating customary law in this fashion, the English imported English private international law rules on foreign law, including the rule that proof of foreign law was a question of fact, and even when proved, could be excluded as contrary to public policy. This approach enabled the foreign judges in the colonies to become aware of customary law. It shifted the cost of producing evidence to the natives, thus creating a disincentive to rely on it, and, evidencially, provided a means for excluding customary law for want of satisfactory proof. The institution of a dual judicial system, native courts and English courts, to administer, at least in theory, separate bodies of law, was a conflict of laws avoidance technique with precedent in English legal history.84
Unlike the academic and judicial discussions that accompanied the development of private international law in English legal history, the treatment of the subject in the colonies was not fostered by any serious academic or juristic discussion. Matson has accused British jurists of not giving the problem of internal conflict of laws “systematic attention.”85 Thus, no academic and judicial constituency with interest in the subject was created. To be fair, it took time before Africans became tutored in English law. Even then, private international law could not have been on the minds of these budding lawyers, in the face of repressive colonial legislation and the fight for independence. Also, outside of Africa, leading international journals like the International and Comparative Law Quarterly, Modern Law Review, and Netherlands International Law Journal all published articles largely written by non-Africans, on internal conflict of laws problems in Africa.86 Here we see the historical antecedents of the general lack of African academic interest in the subject, and the perception that it is not important for the development objectives of the continent.
South Africa, however, appears to have taken an early interest in private international law issues. The first volumes of the Cape Law Journal (1884-1900, now South African Law Journal), perhaps the first law journal in Africa altogether, already contained articles on private international law issues.87 This early interest may be attributed to a number of factors. Its early contact with the Dutch, who, unlike the English, had an advanced private
83 Hughes v. Davis, (1909) Renner Reports 550, 551; Angu v. Atta, (1916) Gold Coast Privy Council
Judgments (1874-1928) 43, 44. Writers generally attribute this to the lack of personnel knowledgable
in customary law. This however, ignores the potential influence of similar treatment of foreign law in
English legal history. Even to this day proof of foreign law is still a question of fact in an English
court.84 For example, until the merger of the administration of law and equity by the Supreme Court of
Judicature Act, 1873, separate courts administered law and equity that were distinct bodies of law.85 Matson, supra note 38, at 471.86 See, e.g., Matson, supra note 38; J.N.D. Anderson, Conflict of Laws in Northern Nigeria: A New
Start, 8 I.C.L.Q. 442 (1959); A. Arthur Schiller, Conflict of Laws in East Africa, 9 NETHERLANDS
INT’L L. REV. 430 (1962).
16
international law regime even at the time when they relinquished the territory to the British in the early 19th century, has had a lasting influence on the jurisprudence of the courts. Its favorable climate made it an ideal place for European settlers who brought to the courts a number of claims involving issues emanating from their countries of origin. Also, its long coastline made it an important shipping center for ships enroute to India and Australia, hence claims involving foreign ships, contracts of affreightment, and bills of lading. Reported cases dating back to the early 19th century show a very developed judicial system addressing a number of significant private international law problems. These include:
jurisdiction over foreign contracts,88
arrest of foreign ships to establish jurisdiction,89 jurisdiction over the assets of a foreign bankrupts,90 jurisdiction over a tort committed at sea aboard ship,91 jurisdiction over consular officers,92 jurisdiction to dissolve foreign marriages,93 governing law for contracts,94 law governing interest in real and personal property in a trust estate,95
87 See, e.g., G.C. Frames, Domicil, 1 CAPE L.J. 253 (1884); G.C. Frames, Domicil, 1 CAPE L.J. 301
(1887). This set the stage for the influence of African academics on the development of the subject.
From this, it is no happenstance that a number of leading African texts on the subject have South
African authors.88 Heinaman v. Jenkins-Re “Peytona,” (1853-56) II Searles’ Reports 10 (court has no jurisdiction as to
a contract entered into in New York to be performed in Melbourne where the parties are not domiciled
in the Colony).89 Dunell and Stanbridge v. Van der Plank in Re Schooner “Louisa,” (1828-49) III Menzies’ Reports
112 (ship on anchor at Table Bay arrested to found jurisdiction at the instance of an English creditor
on an English contract).90 Norden v. Solomon, (1828-49) II Menzies’ Reports 375 (notwithstanding an English bankruptcy, the
court has jurisdiction to try whether a hypothec claimed by a creditor has been acquired prior to the
bankruptcy over any of the bankrupt’s property situated within the courts jurisdiction).91 Wallace v. Hill, (1828-49) I Menzies’ Reports 347 (parties to this action were foreigners; plaintiff
commenced action by causing defendant to be arrested; the defendant did not object to the jurisdiction
of the court; and the court applied the law of the Colony). See also Hornblow v. Fotheringham, (1828-
49) I Menzies’ Reports 352 (where court held as a question “attended with very great doubt” whether
it was competent for an English plaintiff to arrest an English defendant to found jurisdiction for a
cause of action arising under a contract made in England and governed by English law).92 McDonald v. McDonald, (1861-63) IV Searles’ Reports 121.93 Reeves v. Reeves, (1828-49) I Menzies’ Reports 244 (court has jurisdiction to dissolve a marriage
contracted in Ireland where the husband has subsequently become domiciled in the Colony although
the wife has never been resident there).
17
recognizing a foreign sequestration order,96 domicile of individuals, and97 granting of a decree of perpetual silence against a person in England.98
Principles developed in these decisions drew on decided cases and writings of jurists from multiple jurisdictions. The comparative spirit that animates South African judicial decisions is not of recent origin.
During colonization, the approach to, and the development of, private international law was compelled by pragmatic considerations and commercial necessity. Like many aspects of colonial law, private international law was politically employed to serve a colonial end.99
Pragmatism required the accommodation of indigenous laws and institutions as part of the broader colonial philosophy of British indirect rule. The institution of a dual system of administering justice, one administered native law, and the other introduced general or English law, was in theory a conflicts avoidance technique.100 It also served the political end of ensuring that the natives were not antagonized by the introduction of English law and by
94 Executors of Muter v. Jones, (1857-60) III Searles’ Reports 356 (liability for damage to good
shipped from London to Cape Town, under a bill of lading, freight payable in London must be
determined by the law of England). See also Greef v. Verreaux, (1828-49) I Menzies’ Reports 151 (a
promise made in the Colony by a French defendant to marry a resident of the Colony was governed by
the law of the Colony as the lex loci contractus).95 Pappe v. Home, Edgar & Co. and Bam’s Executors, (1828-49) I Menzies’ Reports 212 (interest in a
trust estate in personal property situated in England must be regulated by the law of the domicile of the
beneficiary and the law of England as regards real property situated there).96 In Re Zeederberg, (1864-67) V Searles’ Reports 307.97 De Costa v. Le Sueur, Civil Commissioner, (1828-49) III Menzies’ Reports 545 (a Portuguese
subject resident in the Colony only for a temporary purpose, and sine animo remanendi has not
acquired a domicile in the Colony). See also Bestandig v. Bestandig, (1828-49) I Menzies’ Reports
280 (domicile of a wife is the same as the husband’s).98 In re West (deceased), (1861-67) 1 Supreme Court Cases (Cape) 370.99 For a comparable deployment of public international law, see D. C. J. Dakas, The Role of
International Law in the Colonisation of Africa: A Review in the Light of Recent Calls for Re-
Colonisation, 7 AFR. YBK INT’L L. 85 (1999).100 The French, Belgian, and Portuguese embarked on a similar conflict avoidance technique by
enacting legislation which made the applicable law dependent on a pre-determined status of the
individual. With these colonial powers, there was the distinct possibility for a native to change his
status through assimilation and become wholly subject to law of the colonial power. This option was
not available to natives in British administered colonies. See A. Robert, A Comprehensive Study of
Legislation and Customary Law Courts in the French, Belgian and Portuguese Territories in Africa ,
11 J. AFR. ADMINISTRATION 124 (1959).
18
the abolition of their laws that reflected years of lived experiences. Customary law regulated areas where conflicts between indigenous law and English law were most likely to arise, such as in family law, property, and succession. In practice, however, these conflicts avoidance techniques did not work. The courts that administered the general or English law also had jurisdiction over natives, and with increased commercial relations between the Europeans and the natives, they called upon to make difficult choice of law decisions. In instances where there were conflicts between English law and indigenous law, the former prevailed.
Statutes were not enacted to regulate comprehensively the extent of the application of different types of laws,101 or to resolve conflict of laws problems arising between native laws.102 Neither was an attempt made to establish a relationship between the internal conflict of laws rules and private international law. This sometimes led to the erroneous application of private international law rules to internal conflict of laws problems.103 Post-independence statutes have had to grapple with these problems, including the problem of conflicting native laws. Thus, Section 8 of Zimbabwe’s Customary Law and Local Courts Act provides:
In any case where customary law is applicable and the parties are connected with different systems of customary law, the court shall apply the customary law by which the parties have agreed that their obligations should be regulated or, in the absence of such agreement, the customary law with which the case and the parties have the closest connection and if that is not ascertainable, the court shall apply any system of customary law which the court considers it would be just and fair to apply in the determination of the case.104
The section provides a unique combination of party autonomy, proper law approach, and pragmatism in choice of law in the area of custom. However, from the nature of customary transactions, it is unlikely that parties will agree beforehand on an applicable customary regime. The unification of customary law has also been pursued in some post-independent African countries as an alternative solution to the problem of conflicting customary laws.105
101 ALLOTT, supra note 38, at 122.102 Schiller, supra note 86, at 442 where he suggests these problems were relatively few. FRANCIS A.R.
BENNION, THE CONSTITUTIONAL LAW OF GHANA 446-48 (1962). But see Julius Lewin, The Conflict
of Tribal Laws, 61 SOUTH AFR. L.J. 269 (1944).103 See, e.g., Ghamson v. Wobill, (1947) 12 W.A.C.A. 181, where the court in overruling a lower court
decision noted that the application of the private international law rule that rights in immovable
property is governed by the lex situs will deprive many natives the benefit of their distinct laws on
succession.104Customary Law and Local Courts Act Ch. 7:05. See also Ghana: Courts Act 1993 Act 459 § 54 rule
5 which provides the applicable law to any issue arising between two or more persons shall, where
they are subject to the same personal law, be that law; and where they are not subject to the same
personal law, the court shall apply the relevant rules of their different systems of personal law to
achieve a result that conforms with natural justice, equity, and good conscience.
19
Private international law was also employed to aid commercial activity within and without the colonies. This is illustrated by the story behind the introduction of legislation for the enforcement of foreign judgments in the colonies. Patchett106 traces the genesis of the first Gold Coast legislation in this area, the Foreign Judgment Enforcement Ordinance, 1907 No. 4, to a complaint to a District Commission from a trading company in the Gold Coast regarding debtors who absconded to the Ivory Coast, then under French jurisdiction, ostensibly to avoid payment. The company suggested that extradition arrangements should be instituted, but the Colonial Secretary did not respond positively to this idea. He was of the view that the fault lay with the traders who allowed credit indiscriminately. This response incensed the company. They wrote directly to the Secretary of State. They reiterated their earlier plea, and further suggested that the problem of fleeing debtors existed even among the British colonies in West Africa. The colonial office, after some hesitation, took a second look at the matter. It suggested that the system of registration of judgments, then in force in the United Kingdom, would be a better solution. This led to the enactment in the Gold Coast of the Foreign Judgment Extension Ordinance. Similar statutes were enacted for the other colonial territories.107
The colonial period was dominated by internal conflict of laws problems rather than true private “international” law issues. A principal reason for this may be that trade within and with the colonies was, by and large, monopolized by the colonial powers, thus preventing interactions with third countries. Aside from South Africa, there are very few reported cases of true private international law problems during colonization.108 Although few, the issues examined were far-reaching and sometimes pointed to the future. Thus, as far back as 1931, Justice Gorman had noted, “the pressures of modern conditions or international intercourse” compel the rules of private international law; he suggested that it was “very desirable that they should be uniform from state to state,” and he admonished judges to “have regard to the
105 See, e.g., Ghana: Intestate Succession Law 1981 (PNDC Law 111), which abolished the customary
law rules on intestate succession and instituted a uniform regime for that purpose. A defined but small
proportion of most estates, however, still passed under the customary law of the deceased.106 KEITH W. PATCHETT, RECOGNITION OF COMMERCIAL JUDGMENTS AND AWARDS IN THE
COMMONWEALTH 20 (1984).107 See, e.g., Gambia: Foreign Judgment Extension Ordinance 1908, No 5, Northern Nigeria: Foreign
Judgment Extension Ordinance 1908, No 21, Southern Nigeria: Foreign Judgment Extension
Ordinance 1908, No VI. Sierra Leone: Foreign Judgment Extension Ordinance 1908, No 4.108 But see William L. Twining, The Place of Customary Law in National Legal Systems in East Africa
55 (lecture delivered at the University of Chicago Law School in Apr.-May 1963) where J.P.W.B.
McAuslan, in a note to the writer, reports that although lawyers and judges of East Africa were not
always aware they were dealing with a conflict of laws problem, he has identified about 165 cases
which “I consider raise in some form or other conflict of laws problems. Of these 90 raise international
or inter-state conflicts problems and 75 raise inter-personal or internal conflicts problems.” This claim
by McAuslan is, however, not supported by the law reports I have examined, at least for countries
outside East Africa.
20
general current of international opinion” in their decisions.109 The judgments of African courts during colonization show that both counsel and judges clearly appreciated the relevant private international law issues involved. Some of the advocates and judges were foreigners. Among the issues covered in these cases were:
recognition and enforcement of foreign judgments,110 recognition of the legal personality of foreign corporations,111 the law governing foreign partnerships,112 choice of law in contracts,113 jurisdiction and jurisdiction agreements,114 family law,115 characterization of limitation periods,116 succession and administration of estate of a foreign domiciliary, and117 proof of foreign law.118
It is against this background that we must understand the present state of private international law in Africa. But all is not lost. A number of current developments in Africa promise to change the course of the subject and to make it an essential component of Africa’s legal infrastructure and academic legal discourse. It is to these developments that I turn our attention.
109 Official Administrator v. Anba Bola Convent, (1900-31) 1 S.L.R. 521, 529-30.110 See, e.g., Dewhurst v. Wilson, (1954) 27 K.L.R. 41 (money judgment from Tanganyika (now
Tanzania)); In re Roderick Fountaine Antrobus Johnston, (1954) 27 K.L.R. 94 (maintenance order
from Southern Rhodesia (now Zimbabwe)); Khoury v. Khoury, (1957) 3 W.A.L.R. 52 (recognition of
Lebanese divorce decree in Ghana. This case was decided after the independence of Ghana but before
it attained Republican status); Zakia Hanna Ibrahim v. Tawfik Ibrahim Mikael, [1932-40] S.L.R. 98
(money judgment from Egypt). 111 Fuhrmeister and Company v. Abdel Ghani Ali Mousa and Sons, [1959] S.L.J.R. 38.112 Mohammed Ahmed Radwan v. Pearson & Son Ltd., (1900-31) 1 S.L.R. 218.113 Tawfik Abdel Sayed v. Ahmed Hashim Baghdadi, (1900-31) 1 S.L.R. 227; Antonious Saad v. Aziz
Kfouri, (1900-31) 1 S.L.R. 114; Misr Printing Press v. Kamil Mohamed Kamil, [1959] S.L.J.R. 3.114 John Grisby v. Jubwe, (1952-55) 14 W.A.C.A. 637; Elias J. Moubarak v. Holland West Afrika Lijn,
(1952-55) 14 W.A.C.A. 262.115 Yanni Krithary v. Mariam Bint Dasta, (1900-31) 1 S.L.R. 91 (maintenance); Adjei and Dua v.
Ripley [1956] W.A.L.R. 62 (maintenance); Madame Olympia v. William Bey Zalzal, (1900-31) 1
S.L.R. 28 (marriage).116 George Michailides v. Nerves Yacoub, (1900-31) 1 S.L.R. 190.117 Estate of Jacques Maqridis, (1932-40) 2 S.L.R. 1; Official Administrator v. Anba Bola Convent,
(1900-31) 1 S.L.R. 521; Hanna Kattan v. John Kattan, [1957] S.L.J.R. 35; Mary Ekem v. Ekua Nerba,
(1946-49) 12 W.A.C.A. 258.118 Mohammed Wahib Huzaifeh v. Hussein Saba, (1939) 5 W.A.C.A. 181; Said Ajami v. The
Comptroller of Custom, (1952-55) 14 W.A.C.A. 34 aff’d (1952-55) 14 W.A.C.A. 37.
21
III. A NEW DAWN FOR PRIVATE INTERNATIONAL LAW IN AFRICA?
A. IntroductionThe subject of private international law, arcane and mystifying as it is, does not attract electoral votes. Its development is often at the lowest rung of the politician’s ladder of priorities. Still, for experts in the field, and for those who want to follow in their footsteps, it is good news that all is not gloomy in Africa. There are several developments that promise greater prominence for the discipline.
B. An Emerging Academic InterestHistorically, academics have been at the forefront of the development of private international law. If it is to take hold in Africa, they will have to play a leading role there as well. Indeed, there appears to be an emerging academic interest. After years of neglect, this is both refreshing and welcome. Publishing their first work on Africa, the editors of the Yearbook of Private International Law spoke of “an entire most promising continent” when it comes to the study of private international law. A number of leading African texts have been published in the last decade.119 In 2006, the South African Mercantile Law Journal devoted an issue of volume 18 to “commercial private international law.”120 In it, contributors presented articles on current topics, including electronic commerce,121 The Hague Securities Convention,122 and choice of law in tort.123 Yet, these articles also illustrate the absence of an African voice on the developments in these issues, as well as the inadequacy of Africa’s response to the challenges they present. Today, articles and commentaries on private international law issues in Africa are also finding places in leading specialized journals on the subject.124
There are also efforts to enhance the institutional development of the field. In 2000, the Institute for Private International Law in Southern Africa was established as a part of the University of Johannesburg.125 Its current goal is to draft a code of private international law of 119 SCHULZE, supra note 5; FORSYTH, supra note 3; KIGGUNDU, supra note 5.120 18 S. AFR. MERCANTILE L.J. (2006).121 Christian Schulze, Electronic Commerce and Civil Jurisdiction, with Special Reference to
Consumer Contracts, 18 S. AFR. MERCANTILE L.J. 31 (2006).122 Christa Roodt, The Law Applicable to Certain Rights in Respect of Securities held with an
Intermediary: The Hague Securities Convention, 18 S. AFR. MERCANTILE L.J. 83 (2006).123 John Kiggundu, Choice of Law in Delict: The Rise and Rise of the Lex Loci Delicti Commissi, 18 S.
AFR. MERCANTILE L.J. 97 (2006).124 See, e.g., Christopher Forsyth, “Mind the Gap”: A Practical Example of the Characterisation of
Prescription/Limitation Rules, 2 J. PRIV. INT’L L. 109 (2006); Christopher Forsyth, “Mind the Gap
II”: The South African Supreme Court of Appeal and Characterisation, 2 J. PRIV. INT’L L. 425 (2006);
Jan L. Neels, Private International Law of Succession in South Africa, 7 Yearbook of Private
International Law 183 (2005); Richard F. Oppong, Private International Law and the African
Economic Community: A Plea for Greater Attention, 55 I.C.L.Q. 911 (2006); Oppong, supra note 14.125 Http://general.rau.ac.za/law/English/ipr/ipr.htm (last visited Feb. 16, 2007).
22
contract for the Southern African Development Community and/or the African Union. The Institute of Foreign and Comparative Law of the University of South Africa strives to be the premier research institution in the development and application of private international law, public international law, and comparative law in Africa. It aims to maintain and develop a database of private international law, particularly in the area of family law.126 The Hague Conference on Private International Law also plans to establish a document center for Southern Africa. In September 2006, the Conference organized a judicial seminar for judges of the Southern and Eastern African region on aspects of international child protection.127
While it is disheartening that these developments are concentrated in the Southern Africa region, they are important first steps that, hopefully, will spread to other parts of the continent.
As academic interest in private international law heightens, the challenge for African scholars will be to produce a “genuinely African-based and African-influenced work on the conflict of laws,”128 i.e., not merely a reproduction of the distinguished books of Professors Cheshire, Dicey, and Morris, interlaced with African cases. They will have to work out and adopt rules specific to Africa’s needs and influenced by its own philosophy, rather than blindly copying foreign models. States and regional organizations such as Canada, Australia, the United States, the European Union, and the Organisation of American States, have also had to develop distinct approaches to issues of private international law in response to particular needs. The common law on private international law has had to adjust to the demands of European law,129 and to the need to create “a single country” in Canada.130 Within the Organisation of American States, recent topics addressed have focused on the region’s free trade agenda.131Africa will be no exception in this regard.
Africa will need to develop rules outward-looking and flexible enough to attract much-needed international trade and investment, but inward-looking enough to protect Africans engaging in international transactions and who, because of imbalances in bargaining power, are likely to be disadvantaged in negotiations. The slavish enforcement of out-of-Africa choice of forum
126 Http://www.unisa.ac.za/Default.asp?Cmd=ViewContent&ContentID=675 (last visited Feb. 16,
2007). 127 Http://www.hcch.net/index_en.php?act=events.details&year=2006&varevent=119 (last visited Feb.
16, 2007). 128 Uche, supra note 79, at 273.129 See, e.g., Turner v. Grovit, [2004] 2 Lloyd’s Rep. 169; Owusu v. Jackson, [2005] 2 W.L.R. 942;
Trevor C. Hartley, The European Union and the Systematic Dismantling of the Common Law of
Conflict of Laws, 54 I.C.L.Q. 813 (2005).130 See, e.g., Morgaurd Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, 76 D.L.R. (4th) 256;
Hunt v. T & N plc, [1993] 4 S.C.R. 289, 109 D.L.R. (4th) 16; Tolofson, supra note 31.131 Diego P. Fernandez Arroyo & Jan Kleinheisterkamp, The VIth Inter-American Specialized
Conference on Private International Law (CIDIP VI): A New Step Towards Inter-American Legal
Integration, 4 YBK PRIV. INT’L L. 237, 254 (2002).
23
agreements can, for example, occasion great cost and hardship on Africans.132 In the areas of family law, Africa will have to develop rules that address the need to protect existing personal law regimes, such as customary and religious law, which represents centuries-old traditions and experiences of various communities, while at the same time taking into account the international, human rights, and economic dimensions of the issues arising in the area. For example, how will a customary or religious law, that is the applicable law in succession to property of an intestate, accommodate a surviving gay couple and “children” of the marriage? How can the formalities of customary marriage be adjusted to accommodate Africans outside the continent who want to marry at home, but cannot be physically present, i.e., is there a place for proxy marriages in customary law?
The emerging interest in private international law should trickle down to the various law faculties. Private international law should be given a prominent place in the curricula of African universities. While an in-depth exploration of the subject may continue to be an optional course for upper-year law students, an introductory course providing a basic overview of public and private international law issues should constitute a core part of at least the first-year law curriculum. There is also the need to expand legal disciplines with international or transnational significance such as international business law, transnational business problems, and international commercial litigation, all of which implicate aspects of private international law. In that context, it would be important for teachers in the field to demystify the subject for their colleagues and students. It is somewhat of a tradition to begin a course on private international law with the usual frightening quotations from the older generation of academics on the intricacies of the subject, but they turn off students who are new to the subject.133
C. The Impact of African Economic Integration ProcessesEconomic integration has been promoted as essential for the development, peace, and stability of Africa. With fragmented markets, low inter-African trade, worldwide economic 132 In Valentine Investment Company (msa) Ltd. v. Federal Republic of Germany [2006] eKLR, the
court was attentive to the concern of offering protection to Africans engaging in international
transactions. The case involved an application for a stay of the Kenya proceedings on the grounds that
the parties had agreed on a Bonn, Germany choice of law and forum clause. The subject matter of the
dispute was a contract for the supply of motor vehicles with drivers. Two earlier contracts between the
parties had Kenya choice of forum clauses. In dismissing the application, the court held that the parties
were not negotiating on level ground; the relevant evidence was in Kenya, litigation would be
convenient and less expensive in Kenya; Kenya was a common law country and the plaintiffs will be
greatly prejudiced by having to sue in Germany and the German defendants were operating in Kenya
and contracted with a Kenyan businessman.133 See, e.g., William L. Prosser, Interstate Publication, 51 MICH. L.REV. 959, 971 (1952-53): “The
realm of the conflict of laws is a dismal swamp, filled with quaking quagmires, and inhabited by
learned but eccentric professors who theorize about mysterious matters in a strange and
incomprehensible jargon. The ordinary court, or lawyer, is quite lost when engulfed and entangled in
it.”
24
marginalization, and inter- and intra-state conflicts, the imperative of integrating the economies of African countries is more urgent than ever. The Treaty Establishing the African Economic Community (AEC Treaty),134 which came into force in 1994, envisages an economic community encompassing the whole of Africa. It is using the existing regional economic communities as buildings blocks.
Law plays an indispensable role in any economic integration process. Legal writings on Africa’s integration process have generally focused on the public international law aspects of integration.135 These writings have ignored the fact that economic integration results in juxtaposition of both states and legal systems, and thus private international law, which deals with issues arising from this juxtaposition of legal systems, should form an essential part of integration study.
So far, in over 14 regional economic communities in Africa, none have private international law on its agenda.136 Compared with developments in other regional economic communities, this is disheartening.137 The challenge for African academics is to begin to assess how private international law will interact with the economic integration process. Will the existing rules pose any obstacle? Can its techniques be deployed to resolve some of the challenges that currently face Africa’s integration process? Should the harmonization of private international law rules be a key component of the integration process? How adequate are the existing national rules on jurisdiction, choice of law, and judgment enforcement? Is there a need for regional or continent-wide conventions on some of these issues? Among the areas that merit the particular attention of private international lawyers in Africa are the following.138
Professor Robert Casad has identified an effective scheme for the mutual recognition and enforcement of civil judgments as one feature of any economic integration initiative likely to achieve significant success.139 So far, Africa’s integrations processes have not addressed this issue. In Africa, the common law regime for the enforcement of foreign judgments is riddled with procedural and definitional difficulties. An action to enforce a foreign judgment may
134 Reprinted in (1991) 3 AFR. J. INT’L. & COMP. L. 792-839 (1991), 30 I.L.M. 1241 (1991).135 By this I include questions regarding the impact of integration on national sovereignty, domestic
implementation of international commitments, dispute settlement, etc.136 Art. 126 of the Treaty of the East African Community which enjoins member states to “encourage
the standardisation of judgments of courts within the Community,” and “harmonise all their national
laws appertaining to the Community,” and art. 57(1) of the Treaty of the Economic Community of
West African States under which “Member States undertake to co-operate in judicial and legal matters
with a view to harmonising their judicial and legal systems,” may broadly be interpreted to encompass
issues of private international law. I am, however, not aware of any initiative taken under these articles
of significance for private international law.137 See generally Diego P. Fernandez Arroyo, What is New in Latin American Private International
Law, 7 YBK. PRIV. INT’L L. 86 (2005); Marie-Odile Baur, Projects of the European Community in the
Field of Private International Law, 5 YBK. PRIV. INT’L L. 177 (2003).138 I examine some of these issues more extensively in Oppong, supra note 124.
25
take years. This can act as a clog on the free movement of persons, goods, capital, and service within the envisaged economic community. The more expedited existing statutory enforcement regimes, which are often based on reciprocity, have only few African countries designated as beneficiaries in the respective countries.140 Judgments from other African countries will not benefit from this expedited regime.
The AEC Treaty does not contain an express provision that could lay the foundation for an African negotiated international convention on the enforcement of foreign judgments.141
However, the provisions in the Treaty Establishing the East African Community and the Treaty Establishing the Economic Community of West African States, calling for the “standardisation of judgments of courts within the Community” and cooperation in “judicial and legal matters with a view to harmonising their judicial and legal systems” respectively, could provide the legal basis for at least a regional convention.142 Indeed, it is time we begin discussing the possibility of an international foreign judgments enforcement convention for Africa. This convention should aim at unifying and easing the procedures for enforcement, as well as limiting the grounds on which enforcement can be denied.
The areas of choice of law and jurisdiction also display a level of diversity that may not facilitate the integration process. For example, while common law countries base jurisdiction on presence, residence, and submission, but shun domicile and nationality, almost the opposite seems to be true for civil law countries and for Roman-Dutch law of Southern Africa. The requirement to attach assets of foreign defendants, to found or confirm jurisdiction under the Roman-Dutch law, can be a great obstacle to the free movement of goods and capital. In other areas, such as tort, the choice of law position in many African countries remains unsettled; there have been no authoritative judicial or legislative pronouncements.143 Diversity of rules poses a challenge for international trade in Africa. A major problem traders face is the diversity of substantive national laws and the complexity of the rules of private international law. Even where the choice of the parties, as regards the applicable law and forum for litigation, are respected in principle, individual countries impose limitations. Uncertainty about where, and under which law, potential disputes will be decided,
139 Robert C. Casad, Civil Judgment Recognition and the Integration of Multi-state Associations: A
Comparative Study, 4 HASTINGS INT’L & COMP. L. REV. 1 (1980-81).140 For example, South Africa’s regime designates only Namibia; Namibia’s regime designates only
South Africa; Swaziland’s regime has been extended to Lesotho, Botswana, Zimbabwe, Zambia,
Zanzibar, Malawi, Kenya, and Tanzania. For Ghana’s regime, Senegal is the only African country
designated; see First Schedule of Foreign Judgments and Maintenance Orders (Reciprocal
Enforcement) Instrument, 1993 (LI 1575); Tanzania’s Reciprocal Enforcement of Foreign Judgments
Order (GN No 8 & 9 of 1936) names in its schedule Lesotho, Botswana, Mauritius, Zambia,
Seychelles, Somalia, Zimbabwe, and the Kingdom of Swaziland.141 Compare art. 220 of the Treaty Establishing the European Economic Community (1957).142 Art. 126 of the Treaty of the East African Community and art. 57(1) of the Treaty of the Economic
Community of West African States.143 See Kiggundu, supra note 123; FORSYTH, supra note 3, at 326-27.
26
however, acts as a deterrent to traders contemplating international transactions.144 Certainty and predictability are essential for the promotion of commercial activity.
Another area worth exploring is the potential interaction between existing customary law regimes in the different countries at one level and the laws of the various regional economic communities (community law) at the other. The scope for the application of customary law has been significantly reduced in areas like commercial law, torts, and criminal law. However, customary law remains significant in matters relating to family law, property, and succession. Although there are similarities in the rules, customary law is, of course, not uniform. When people move freely within the communities, and form personal relationships with people subject to different customs, questions on the content and application of customary law will emerge. For the African Economic Community, these questions will become more immediate when it enters its final stage of development145 and starts the process of integrating the “social and cultural”146 dimensions of the community. What happens when community law provides for rights not recognized under the customary law of a group? What happens when community law conflicts with customary law? Will community law prevail in such instances? Will customary law be deemed of such importance to the lives of its adherents that it will remain unaffected by community law? Will traditional private international law rules be appropriate in this context? Social issues addressed by customary law also have economic dimensions. It is not surprising that the European Union has legislated in the area of family law,147 and is currently working on wills and succession.148 In Africa, these issues will also have to be addressed, with customary law being a complicating factor.
A fundamental challenge to Africa’s integration process, for which the techniques of private international law may be useful, concerns the multiplicity of regional integration initiatives and their respective courts with overlapping jurisdictions.149 This overlap results from the fact
144 Muna Ndulo, The Promotion of Intra-African Trade and the Harmonisation of Laws in the African
Economic Community: Prospects and Problems, in African Economic Community Treaty, Issues
Problems and Prospects 107, 111-12 (M.A. Ajomo & Omobolaji Adewale eds., 1993).145 The AEC Treaty provides for the gradual establishment of the community through six stages over a
period of 34 years. The final stage involves, among others, the strengthening of the African common
market, the application of free movement of people, goods, capital and services, the integration of the
social, economic, political and cultural sectors, and the establishment of a single domestic market.146 AEC Treaty, supra note 134, art. 6(2)(f)(ii). 147 See Council Regulation (EC) No 2201/2003 of Nov. 23, 2003, Concerning Jurisdiction and the
Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental
Responsibility, repealing Regulation (EC) 1347/2000.148 Green Paper on Wills and Succession. COM (2005) 65 Final. The European Parliament accepted
this Paper in Nov. 2006, and a legislative proposal is due from the Commission to the Parliament in
2007.149 See generally Maurice Oduor, Resolving Trade Disputes in Africa: Choosing between
Multilateralism and Regionalism: The Case of COMESA and the WTO, 13 TULANE J. INT’L & COMP.
27
that countries are often members of more than one regional economic community. Currently, and in contrast with developments elsewhere,150 there are no treaty provisions for resolving potential conflicts between courts created under such regional economic communities.151 The Protocol on the Relationship between the African Economic Community and the Regional Economic Communities152 is silent in that regard. In private international law, the doctrines of comity, forum non conveniens, and respect for party autonomy as regards choice of forum agreements, have provided rules for regulating conflicting jurisdiction among national courts. Absent treaty provisions regulating these conflicts, African scholars and judges will have to assess whether these private international law concepts may provide an adequate response to the potential problem of conflicting jurisdiction among international courts in Africa.153
The rules of private international law may also be deployed in solving some of the difficulties of implementing community law at the national level. Direct effect of community law may meet constitutional challenges in jurisdictions where the ratification of parliament is required for international treaties to be effective domestically. The use of domestic legislation to implement community law may also occasion delay or may not even come. For some community laws, especially those meant to regulate private transactions, it may be possible to allow individuals to choose them as the governing law of their transaction. Such a choice could be respected by the courts and treated as an applicable foreign law. The challenge for the various regional communities will be to develop and adopt such substantive laws that individuals can rely on.
Successful integration will influence the courts’ private international law jurisprudence. The Ugandan case of Shah v. Manurama Ltd.154 illustrates this prospect. The defendant brought an application seeking an order requiring the plaintiff to pay security for costs. The plaintiff was a resident in Kenya, and thus outside the jurisdiction of the Uganda High Court. The
L. 177 (2005); Joost Pauwelyn, Going Global, Regional, or Both - Dispute Settlement in the Southern
African Development Community (SADC) and Overlaps with the WTO and Other Jurisdiction, 13
MINN. J. GLOBAL TRADE 231 (2004); Kenneth P. Kiplagat, Jurisdictional Uncertainties and
Integration Processes in Africa: The Need for Harmony, 4 TULANE J. INT’L & COMP. L. 43 (1995-96).150 See, e.g., art. 292 of the Treaty Establishing the European Community, art. 42(1) of the Treaty
Creating the Court of Justice of the Andean Community, and art. 2005 of North American Free Trade
Agreement.151 Although arts. 17, 18, & 19, of the SADC Protocol on Tribunal grants the Tribunal “exclusive
jurisdiction over all disputes between the States and the Community, natural or legal persons and the
Community and between the Community and its staff,” this is not enough since they do not appear to
bar parties from litigating elsewhere even if the latter court may subsequently decline jurisdiction.152 Reprinted in 10 AFR. J. INT’L & COMP. L. 157 (1998). 153 See generally Jenny S. Martinez, Towards an International Judicial System, 56 STANFORD L. REV.
429 (2003-04). 154 [2003] 1 E.A. 294. Compare Healthwise Pharmaceuticals Ltd. v. Smithkline Beecham Consumer
Healthcare Ltd., [2001] L.L.R. 1279, where a similar argument was unsuccessful.
28
defendant, relying on well-established common law principles, argued that the plaintiff’s foreign residence was prima facie ground for ordering payment of costs. In reply, the plaintiff argued that given the re-establishment of the East African Community (EAC), the question of residence for the purpose of ordering security for costs should be re-examined. In denying the application, the court held that in East Africa, there could no longer be an automatic and inflexible presumption for the courts to order security for costs with regard to plaintiffs resident in the EAC. The court reasoned that the EAC residence “begs for a fresh re-evaluation of our judicial thinking” regarding the implementation of the law requiring foreign plaintiffs to pay security for costs. Among the factors that the court considered in coming to its decision was the fact that the EAC treaty makes express provision for the unification and harmonization of the laws of the partner States, including “standardization of the judgments of courts within the community” and establishment of a common bar (that is cross-border legal practice) in the partner States.
The interaction between African economic integration and private international law promises to be a fascinating area of study. It is indeed regrettable that literature on these issues has not yet featured in the legal discourse on Africa’s integration.
D. The Drive to Promote International Trade and InvestmentPrivate international law has a role to play in Africa’s drive to promote trade and investment. Issues in this area are also present in economic integration, but they are more immediate, can be country-driven, and should not necessarily be subsumed under a regional or continental agenda. Indeed, the reform of private international law in Africa need not be tied to the economic integration process. Reform could be pursued as non-governmental institution driven initiatives. Interested countries can adopt the conventions emerging from such initiatives. Collaboration between institutions devoted to the study and development of private international law and the various chambers of commerce may provide interesting results.
Private international law, like any domestic private law regime, can in effect be a non-tariff barrier to international trade and a disincentive to investment.155 Unbridled lex forism, disrespect for choice of law and forum agreements, and the non-recognition or enforcement of foreign judgments by a state may all evince protectionism. It will act as a clog on the free flow of “wealth, skills and people” across national boundaries.156 Diversity in private international rules can impose undue transaction costs on businessmen and encourage forum shopping and other strategic behavior inimical to international trade. Thus, rules that clearly allocate international jurisdiction, respect parties’ choice of law and forum agreements, and provide certain and expedited means of enforcing foreign judgments are an essential part of a private international law regime meant to facilitate international business.
The need to make private international law responsive to the current needs of international commerce has been recognized in international forums, academic writings157 and judicial
155 See generally Paolo Mengozzi, Private International Law and the WTO Law, 292 RECUEIL DES
COURS 249 (2001).156 Morgaurd, supra note 130, at 1096. 157 See, e.g., Ronald A. Brand, Recognition and Enforcement of Judgments as a Trade Law Issue: The
Economics of Private International Law, in ECONOMIC DIMENSIONS OF INTERNATIONAL LAW:
29
decisions. As in other parts of the world, courts in Africa have also recognized the need to make private international law rules facilitative of international commerce. South African courts have emphasized the need for the country’s trade and commercial relations to be an important consideration in applying its laws on jurisdiction.158 The Namibia High Court has held that commercial considerations influence parties in agreeing to choice of law and forum clauses, and that this should be considered in assessing the international competence of foreign courts in an action to enforce a foreign judgment.159
Notwithstanding the judicial recognition of private international law’s role in facilitating international commerce, one can still identify national statutes and practices that may impede international commerce. These statutes are generally intended to protect legitimate domestic interests, but it is questionable whether they afford the best mechanism for their protection. A number of such statutes can be identified.
The Protection of Business Act 1978 of South Africa partly regulates the enforcement of foreign judgments in that country.160 The Act provides that, except with the permission of the Minister of Economic Affairs, no judgment, order, direction, arbitration award or letter of request, or any other request delivered, given or issued or emanating from outside the Republic, shall be enforced in the Republic if it arises from an act or transaction which took place at any time and is connected with the mining, production, importation, exportation, refinement, possession, use, or sale of, or ownership of any matter or material, of whatever nature, whether within, outside, into or from the Republic. The Act was intended to shield South African companies from the effects of American anti-trust laws. Indeed, other jurisdictions have legislation with similar purpose.161 The Act is, however, unique in its breadth and has rightly been described as the clearest example of “legislative overkill.”162 If applied to the letter, its effect on business confidence may be devastating. Professor Schulze has described the legislation as nothing but a stumbling block to the much-needed foreign
COMPARATIVE AND EMPIRICAL PERSPECTIVES 592 (Jagdeep Bhandari & Alan O. Sykes eds., 1997);
Alan O. Sykes, Transnational Tort Litigation as a Trade and Investment Issue, (Stan. L. & Econ. Olin,
Working Paper No. 331, Jan. 2007), http://ssrn.com/abstract=956668 (last visited Feb. 16, 2007);
Joseph J. Derby, The Conflict of Laws and International Trade, 4 SAN DIEGO L.REV. 45 (1967). 158 See, e.g., American Flag plc v. Great African T-shirt Corp., 2000 (1) S.A. 356, 375; Hay
Management Consultants (Pty) Ltd. v. P3 Management Consultants (Pty) Ltd., 2005 (2) S.A. 522.159 Argos Fishing Co. Ltd. v.Friopesca SA, 1991 (3) SA 255.160 On the enforcement of judgments in South Africa, see FORSYTH, supra note 3, 387-445; SCHULZE,
supra note 5, at 16-32.161 See, e.g., UK: Protection of Trading Interest Act of 1980; Australia: Foreign Anti Trust Judgments
(Restrictions on Enforcement Act 1979 (Cth); Canada: Foreign Extra-Territorial Measures Act 1984 §
8 & 9.162 FORSYTH, supra note 3, at 435.
30
investment in South Africa.163 Happily, the Act has seldom been invoked, and even where it has, the courts have been careful to construe its scope narrowly.164
Other statutes have currency conversion provisions that may adversely affect trade and investment. Some African countries, following English precedents, have departed from the common law rule that the courts cannot give judgments in foreign currency.165 Absent other exchange control restrictions, the courts’ jurisdiction to grant judgments in foreign currency enures to the benefit of those who bring common law actions to enforce foreign judgments or other debts denominated in foreign currency.166 However, where a party seeks to register a foreign judgment, a number of the registration statutes compel the conversion of the judgment into the currency of the enforcing forum.167 The provision in the Ghanaian legislation, which can be said to be representative of those in other jurisdictions, reads:
Where the sum payable under a judgment, which is to be registered, is expressed in a currency other than the currency of Ghana, the judgment shall be registered as
163 SCHULZE, supra note 5, at 32.164 Id. at 31.165 See Miliangos v. George Frank (Textiles) Ltd., [1976] A.C. 443; Barclays Bank of Swaziland Ltd.
v. Mnyeketi, 1992 (2) S.A. 425; Royal Dutch Airlines (KLM) v. Farmex Ltd., [1989-90] 1 G.L.R. 46;
R.E. Bannermah, Award of Damages in Foreign Currency: A Critical Look at the Judgments, 19 REV.
GHANA L. 231 [1993-95]; Lisa Niewoudt, The Power of the South African Court to Give Judgment in
Foreign Currency, 18 SOUTH AFR. YBK. INT’L L. 147 (1992-93).166 Echodelta Ltd. v. Kerr and Downey Safaris, 2004 (1) S.A. 509 (the foreign plaintiff ended up with
a judgment in Zimbabwe dollars equivalent to about U.S.D. $18,000 for a debt of U.S.D. $90,385.60).
Compare Chiraga v. Msimuko, 2004 (1) S.A. 98 (the foreign defendant successfully resisted the
conversion of a debt denominated in South African Rands into Zimbabwe dollars). Eden v. Pienaar,
2001 (1) S.A. 158 (the court held that the enforcement of an Israeli judgment given in U.S. dollars
with a linkage provision designed to ensure that depreciation of the Israeli currency does not redound
to the benefit of the judgment debtor was not contrary to South African public policy). Charles Thys v.
Herman Steyn, [2006] eKLR (court held that it will be contrary to public policy for judicial procedure
to be exploited to rake in supernormal profits associated with the rapid fluctuations of the Kenyan
shilling on the international money markets.)167 Botswana: Judgments (International Enforcement) Act 1981 Ch. 11:04 § 5(5); Namibia:
Enforcement of Foreign Civil Judgments Act 1994 Act 28 of 1994 § 3(4); Tanzania, Foreign
Judgments (Reciprocal Enforcement Ordinance 1935 § 4(3); Ghana: Courts Act 1996 Act 459 § 82(7);
Zambia: Foreign Judgment (Reciprocal Enforcement) Act Ch. 76 § 4(3); Uganda: Foreign Judgment
(Reciprocal Enforcement) Act Ch. 9 § 3(3); Nigeria: Foreign Judgments (Reciprocal Enforcement)
Act Ch. 152 LFN 1990 § 4(3). But see Kenya: Foreign Judgment (Reciprocal Enforcement) Act § 7(1)
which uses the discretionary language “may be registered.”
31
if it were a judgment for a sum in the currency of Ghana based on the rate of bank exchange prevailing at the date of the judgment of the original court.168
Some jurisdictions, such as Kenya, however, make the date of registration rather than the date of the original judgment the conversion date.169
These currency conversion rules may be of great financial significance to both parties, especially in an era of fluctuating exchange rates which may work to the prejudice of one party. Recognizing the potential hardship and injustice that can result, especially to the foreign judgment creditor, legislation in Australia and New Zealand gives judgment creditors the option to state in his application for registration whether he wishes the judgment to be registered in the currency of the original judgment.170 This choice mitigates the potential hardship that can be caused by the rule, at least from the perspective of the judgment creditor. It appears from the discretionary language of the Kenya legislation that such an option may be available to foreign judgment creditors.171 I suggest that subsequent reform of legislation for the enforcement of foreign judgments in Africa should incorporate a provision similar to the New Zealand and Australia statutes.
A means by which private international law can directly become a source of investment, foreign exchange, and employment in Africa is that of encouraging what I term “jurisdictional tourism.” Note the British pride in Lord Denning’s famous statement that England is a good place to forum shop.172 Private international lawyers have generally shied away from statistical or empirical measures of the effect of the subject on issues like international business decision-making or international corporate behaviour, or even economic development. These issues, however, are often the unarticulated background to the development and application of private international law rules and judicial decisions.173
Undeniably, the status of London as an international commercial litigation center provides money and employment to the Queens Counsel and to many others who practice there. It provides foreign currency for the country. Contracting parties with no association to England are attracted to litigate there because of its accommodating jurisdiction rules, respect for choice of law and forum agreements, and effective foreign judgments enforcement regime. This is not to suggest that the English rules have been deliberately developed to encourage jurisdictional tourism, but in practice they facilitate it. Of course, these rules must be combined with a judicial system that is neutral, modern, and independent. Reflecting on the Roman-Dutch rules on jurisdiction in South Africa, Professor Forsyth has noted the impossibility of a peregrine (foreigner) suing another peregrine in South Africa unless they
168 Ghana: Courts Act 1996 Act 459 § 82(7).169 Ssebaggala & Sons Electric Centre Ltd. v. Kenya National Shipping Line Ltd., [2000] L.L.R. 931.170 Australia: Foreign Judgment Act 1991 § 6(11)(a); New Zealand: Reciprocal Enforcement of
Judgment Act, 1934 § 4(3).171 Kenya: Foreign Judgment (Reciprocal Enforcement) Act § 7(1).172 The Atlantic Star [1973] Q.B. 364, 382.173 An explicit admission of this is art. 65 of the Treaty Establishing the European Community
providing that private international law issues may be necessary for the “proper functioning of the
internal market.”
32
have some other association with the jurisdiction other than their choice-of-forum agreement.174 At common law this will not ordinarily be a problem; the presence of an exclusive jurisdiction agreement, without more, will be enough to confer jurisdiction.175
As economic integration in Africa succeeds and intra-African trade and investment grows, African countries with advanced and independent legal systems should explore the potential of developing into jurisdictional tourist sites for the resolution of intra-African commercial disputes, including those involving non-African parties.176 A contract between a Ghanaian and a Kenyan businessman or a Ghanaian and a Dutch exporter could have a South African choice of law and choice of forum clause rather than one pointing to England. These jurisdictional tourist sites will provide a neutral, easily accessible, and potentially less costly forum for resolving intra-African commercial disputes. They will also be a source of investment, employment, and foreign exchange for the countries involved.
Aside from national courts, some regional courts established under various regional economic integration treaties also have jurisdiction to determine cases referred to them by private parties who choose them as forums for arbitration of their commercial disputes.177 For people transacting in Africa and seeking a neutral forum to settle disputes, these courts provide viable options. Their jurisdiction can be used to develop them into sites for the resolution commercial disputes including those involving foreigners. A key to developing both national and regional courts into jurisdictional tourist sites will be the elimination of all forms of corruption within the judiciary. This can be done through institutional reforms, independent oversight of the working of the judiciary without compromising its independence, and the adoption of strict and enforceable codes of judicial conduct
174 Christopher Forsyth, The Impact of the Domestic on the International: Some Crucial Deficiencies
in the South African Law of Jurisdiction with their Regional and International Consequences , 18
SOUTH AFR. MERCANTILE L.J. 1 (2006). For judicial support for this position, see Chong Sun Wood
Products Pte Ltd. v. K & T Trading Ltd., 2001 (2) S.A. 651; Hulse-Reutter v. Godde 2001 (4) S.A.
1336.175 The importance of jurisdiction agreements has been given a further boost under the Hague
Convention on Choice of Court Agreements 2005. The convention is not yet in force and there are no
African countries currently party to it.176 FORSYTH, supra note 3, at 216, where he advocates South Africa courts develop an international
role akin to that of the Commercial Court in London for Southern and Central Africa.177 See art. 32 of the Treaty Establishing the East African Community and art. 28 of the Treaty
Establishing the Common Market of Eastern and Southern Africa. Art. 16 of the Treaty Establishing
the Economic Community of West African States also establishes an Arbitration Tribunal for the
Community. The status, composition, powers, procedure, and other issues concerning the Arbitration
Tribunal is to be set out in a Protocol relating thereto. Until that time, art. 9(5) of the ECOWAS Court
Protocol (as amended) provides that the ECOWAS Court of Justice exercises the powers of the
Tribunal.
33
E. The Effect of Substantive Law Harmonization InitiativesThe harmonization of substantive law across jurisdictions is often suggested as the nemesis of private international law. This is not wholly true. Even in the face of the monumental efforts of institutions like UNCITRAL and UNIDROIT, the worldwide unification of all substantive laws will, if ever, definitely not occur in our lifetime. Also, such claims wrongly assume that private international law is all about choice of law. Jurisdictional issues will still be relevant since factors beyond the applicable law often determine a party’s choice of forum for litigation. A regime for the enforcement of foreign judgments will survive any substantive law harmonization since it may not affect the movement and location of the parties’ assets. International judicial cooperation will also continue to be a key part of international litigation.
Harmonization of law promotes certainty because it subjects transboundary transactions to the same, or similar, substantive law, fostering equality of legal treatment, and potentially reducing transaction costs. Harmonization of law is an important part of the legal infrastructure of regions that have some form of economic integration. If law is the cement of society, then it can be argued that people living under a harmonized system of law will feel more inter-connected. Thus, harmonization provides an avenue for social integration, and can be an important complement to political and economic integration. These benefits are true both for the harmonization of substantive law and private international law. It is thus ironic that despite law’s demonstrated role as an indispensable cohesive force in any society, all efforts to unite Africa have ignored this dimension. As early as 1965, and just two years after the formation of the Organisation of African Unity (now African Union), Professor Allott conceived of the international harmonization of laws in Africa as a key aspect of the “pan-African spirit in action.”178 Unfortunately, no meaningful effort has been made in that direction, notwithstanding persistent calls for it.179
There is currently one gigantic initiative towards the harmonization of substantive law among some 16 countries.180 The majority are francophone states in West Africa, and they all share the civil law tradition. This initiative is being pursued under the aegis of the Organisation for the Harmonisation of Business Laws in Africa (OHADA). The objective of the Treaty establishing OHADA181 is to harmonize the business laws in the contracting states182 through the elaboration and adoption of simple, modern, and common rules adapted to their 178 A. N. Allott, Towards the Unification of Laws in Africa, 14 I.C.L.Q. 366, 374 (1965).179 See, e.g., YAKUBU, supra note 5; Muna Nudlo, Harmonisation of Trade Laws in the African
Economic Community, 42 I.C.L.Q. 101 (1993); O. Anukpe Ovrawah, Harmonisation of Laws within
the Economic Community of West African States (ECOWAS), 6 AFR. J. INT’L & COMP.L. 76 (1994).180 They are Benin, Burkina Faso, Cameroon, the Central African Republic, the Comoros, Congo-
Brazzaville, Cote d'Ivoire, Gabon, Guinea, Guinea Bissau, Equatorial Guinea, Mali, Niger, Senegal,
Chad, and Togo. Liberia, Angola, and the Democratic Republic of Congo on record to have expressed
interest in becoming members. See Sebastien Thouvenot, News on the Development of the
Organisation for the Harmonisation of Business Law in Africa (OHBLA), 5 INT’L BUS. L.J. 704
(2006).181 Treaty establishing the Organisation for the Harmonization of Business Laws in Africa
http://www.ohada.com/traite.php (last visited Feb. 16, 2007). There is a dearth of English writings on
34
economies. The willingness of the states to abandon their disparate national laws in favour of unified rules is a triumph for international law and cooperation in Africa.
For private international lawyers, the OHADA initiative teaches some lessons. First, harmonization of laws in Africa is a possibility. The belief that concerns about national sovereignty may make harmonization a mirage has proved, in this instance, to be a myth. One effect of colonization is that, countries with the same (former) colonial power, have largely similar legal systems. The principal legal traditions that co-exist with customary law are common law, civil law, Roman-Dutch law, and Islamic law. To be sure, this multiplicity of legal traditions poses challenges for legal harmonization. But given the right incentives presented in clear and articulate form, governments may be willing to participate in harmonization projects. Also, harmonization need not be pursued regionally but can initially be limited to countries with the same legal tradition as the OHADA initiative demonstrates.
Second, the OHADA initiative raises the question whether the harmonization of private international law rules should also be placed on the agenda of African countries. Sebastien Thouvenot reports that the African Union has taken interest in the OHADA initiative, and is studying the approximation of OHADA law and the common law.183 In other regions of the world, such as within the European Union and the Organisation of American States, the harmonization of private international law is vigorously pursued. It provides an alternative to the harmonization of substantive law, which is a more challenging exercise. It is the responsibility of private international lawyers in Africa to put the harmonization of conflicts rules in Africa on the agenda of their respective regional economic communities as well as the African Economic Community.
F. Judicial and Legislative Development of Private International Law in AfricaJudicial decisions have traditionally been a source of change in private international law. At a time when legislation was minimal, the judiciary was, and indeed still is, at the forefront of the development of the subject.184 Africa’s judiciary has a crucial role to play in this regard. Legislation on issues of private international law is minimal which give the judiciary an important gap-filling role. This role should be pursued with a sound appreciation of developments elsewhere and with a focus on the present needs of their respective countries, and indeed of Africa as a whole. Access to materials from other jurisdictions and a degree of familiarity with the jurisprudence and methods of other legal systems will be crucial. Taking a
this organization. See generally BORIS MARTOR ET. AL., BUSINESS LAW IN AFRICA, OHADA AND THE
HARMONISATION PROCESS (2002); Claire M. Dickerson, Harmonising Business Laws in Africa:
OHADA Case Calls the Tune, 44 COLUM. J. TRANSNT’L. L. 17 (2005); Nelson Enonchong,
Harmonization of Business Law in Africa: Is article 42 of the OHADA Treaty and Problem? 51 J.
AFR. L. 95 (2007).182 OHADA Treaty, supra note 181, art. 1.183 Thouvenot, supra note 180. 184 See, e.g., Joost Blom, Reform of Private International Law by Judges: Canada as a Case Study, in
REFORM AND DEVELOPMENT OF PRIVATE INTERNATIONAL LAW: ESSAYS IN HONOUR OF SIR PETER
NORTH 31 (James Fawcett ed., 2002).
35
second look at the private international law curriculum in African universities may also facilitate this. Presently, a typical curriculum focuses on only one system of law and offers no opportunity for comparative study.185
The judiciary’s role should also be animated by an awareness of existing international conventions in relevant areas. The increasing use of treaties in the domain of private international law has meant that knowledge of only the traditional principles and doctrines is no longer enough. Where a country has not ratified a particular convention, as is the case in many African states, its principles may, nonetheless, provide guidance for a judge as an emerging international consensus in areas where the law is unsettled.186 Where conventions have been ratified, an understanding of the rules of the interpretation of international treaties and existing judicial decisions on the convention is an essential part of the armoury of judges and private international lawyers relying on it. 187
African judges must be circumspect where to look for comparative jurisprudence, as in some instances the case law may reflect particular local exigencies or appreciate the contexts in which that jurisprudence has developed. Within the United Kingdom and generally in the European Union, the Europeanization of private international law to fulfil the aspiration of the European common market has meant that some of the rules evolving in that context may not necessarily be suitable for individual African countries. African countries should adopt rules that place a premium on individual interests, flexibility, and case-by-case assessments rather than, as is characteristic of the European Union jurisprudence, systemic stability and state interests.188 The European Union jurisprudence may, however, become very useful in forging the African common market as envisaged under the Treaty establishing the African Economic Community. Indeed, in Shah v. Manurama,189 the Uganda High Court noted that the reforms of the English principles guiding the grant of security for costs were influenced by developments within the European Community. The jurisprudence in common law jurisdictions like Canada and Australia is responding to the needs of international commerce, 185 See generally Christopher Forsyth, The Value of Comparative Ethos to the Judicial Process in the
Conflict of Laws, in ESSAYS IN HONOUR OF ELLISON KAHN 151-72 (Coenraad Visser ed., 1989),
especially at 171 where he notes “. . . many conflict-of-laws courses lack historical and substantial
theoretical element, let alone a comparative introduction!”186 See Chang W. Cheong, The Law in Singapore on Child Abduction, [2004] SINGAPORE J.LEGAL
STUD. 444, 458-61, where the writer discusses a Singapore case in which the judge held that although
Singapore was not a signatory to the Hague Convention on the Civil aspects of International Child
Abduction, its principle that it was in the best interest of the child for questions of custody to be
decided by the court of habitual residence unless there were exceptional circumstances, should be
followed.187 See Christophe Bernasconi, Rules of Interpretation Applicable to Private International Law
Treaties: An Overview, in INTERNATIONAL LAW AND THE HAGUE’S 750TH ANNIVERSARY 139 (Wybo
P. Heere ed., 1999).188 See generally Hartley, supra note 129.189 Supra note 154.
36
and is concomitantly being shaped by specific domestic constitutional imperatives190 not necessarily present African states. These considerations suggest that the comparative spirit should be backed by a clear appreciation of the underlying philosophy of the foreign jurisprudence.
In common law Africa, legislation must complement judicial development of the subject. This is important. Judicial development is contingent upon the presence of litigated cases, which may lag behind the needs of a legal system. If private international law is to become a key component of the legal infrastructure necessary for Africa’s development, we cannot avoid the hands of the legislator. The challenge for African private international lawyers is to bring the importance of the subject to the attention of draftsmen, politicians, and lawmakers. This will be no mean challenge, given that Africa is plagued by the scourge of civil wars, famine, HIV/AIDS, and excruciating poverty that occupy the best part of the politician’s attention. It is important, however, to overcome the mis-impression that the subject is not a national concern simply because it deals with “claims that contain a foreign element.” The 1990’s witnessed legislative activity in some African countries in various aspects of private international law as part of the legal sector reforms that complemented economic liberalization.191 Presently, it seems that the legislative momentum has diminished, but it is by no means evident that the reforms needed are complete. It seems that only in South Africa is there currently an effort at reform.192
G. Constitutional and Human Rights NormsConstitutionalism and human rights, which now occupy a prominent place in the jurisprudence of African courts, are also likely to shape the development of private international law. The subject is not likely to remain untouched by the ever-widening arms of these disciplines.193 Issues of access to justice, the right to a hearing, equality of treatment, balance between state and individual interests, and the limits of judicial power may all engage aspects of private international law. Some jurisdictions have had to confront these issues
190 See generally Elizabeth Edinger, The Constitutionalization of the Conflict of Laws, 25 CAN. BUS.
L.J. 38 (1995). James Stellios, Choice of Law and the Australian Constitution: Locating the Debate,
33 FEDERAL L. REV. 7 (2005).191 See, e.g., Namibia: Enforcement of Foreign Civil Judgments Act 28 of 1994, Foreign Courts
Evidence Act 2 of 1995, Reciprocal Service of Process Act 27 of 1994; Zimbabwe: Civil Matters
(Mutual Assistance) Act 14 of 1995, Child Abduction Act 12 of 1995 (implementing the Hague
Convention on the Civil Aspects of International Child Abduction (1980)); Ghana: Courts Act 1993
Act 459 § 81-99 (on the enforcement of foreign judgments); Nigeria: Admiralty Jurisdiction Decree
No 59 of 1991; South Africa, Hague Convention on the Civil Aspects of International Child
Abduction Act No. 72 of 1996; Domicile Act No. 3 of 1992.192 South African Law Reform Commission, Consolidated Legislation Pertaining to International Co-
operation in Civil Matters (Project 121, Discussion Paper 106), 57-59,
http://www.doj.gov.za/salrc/dpapers/dp106_prj121/dp106_prj121_b.pdf (last visited Feb. 16, 2007). 193 FORSYTH, supra note 3, at 17-19.
37
already.194 For private international lawyers, constitutional norms are particularly important. Considered as the supreme law of the state, they could represent the strongest form of mandatory rules, and may challenge fundamental principles of the subject, such as party autonomy. Article 69(1)(d) of the Proposed Kenya Constitution guaranteeing consumers the right to “compensation for loss or injury arising from defects in goods or services” can, arguably, be considered one such mandatory rule.195
The case of Raytheon Aircraft Credit Corporation v. Air Al-Faraj Limited196 provides a recent illustration of the potential interaction between constitutional and private international law. The case involved a dispute arising under an aircraft lease purchase agreement between the appellant, a company incorporated in Kansas in the United States, and the respondent, a company incorporated in Kenya. The central issue was the effect which a State of Kansas choice of law and forum clause in the agreement had on the jurisdiction of the Kenya courts. To the appellant, by the clause, the respondent waived its right to bring action in any jurisdiction outside of Kansas. In reply, the respondent argued that the original jurisdiction of the Kenyan courts conferred by Article 60 of the Constitution of Kenya could not be limited or overridden by a contract between two parties. The court held that Article 60(1) of the Constitution, which provided that the High Court had shall have unlimited original jurisdiction in civil and criminal matters, does not authorize the court to disregard private international law on the status of choice of law and exclusive jurisdiction clauses and assume jurisdiction over persons outside of Kenya. Rather, where parties have bound themselves by an exclusive jurisdiction clause effect should ordinarily be given to that obligation unless the party suing in the non-contractual forum discharges the burden of showing strong cause for the breach. In South Africa, Justice Cameron has suggested that the country’s process of attaching assets to establish or confirm jurisdiction may be open to constitutional challenge.197
Furthermore, in Sonderup v. Tondelli,198 the Constitutional Court of South Africa rejected a constitutional challenge to the Act implementing the Hague Convention on the Civil Aspects on International Child Abduction.199 I have also argued that the Ghanaian statutory rules on
194 See e.g., Edinger, supra note 190; Stellios, supra note 190; Trevor C.W. Farrow, Globalization,
International Human Rights, and Civil Procedure, 41 ALBERTA L. REV. 671 (2003); Patrick Kinsch,
The Impact of Human Rights on the Application of Foreign Law and the Recognition and Enforcement
of Judgments-A Survey of the Decided cases by the European Human Rights Institutions, in
INTERCONTINENTAL COOPERATION THROUGH PRIVATE INTERNATIONAL LAW ESSAYS IN MEMORY OF
PETER NYGH 197 (Talia Einhorn & Kurt Siehr eds., 2004); James J. Fawcett, The Impact of Article
6(1) of the ECHR on Private International Law, 56 I.C.L.Q. 1 (2007).195 Proposed New Constitution of Kenya, Kenya Gazette Supplement No. 63, available at
http://confinder.richmond.edu/admin/docs/KenyaProposed220805.pdf (last visited June 06, 2007).196 [2005] eKLR.197 Himelsein v. Super Rich, 1998 (1) S.A. 929, 936. See also Naylor v. Taylor, 2006 (3) S.A. 546,
557; Tsung v. Industrial Development Corp. of SA Ltd., 2006 (4) S.A. 177, 181.198 2001 (1) S.A. 1171.
38
the registration of foreign judgments, rules that are replicated in other African countries, may violate some constitutional and human rights norms.200
Human rights law can act both as a component of, and a constraint on, the scope of existing public policy. The recognition of polygamous and gay marriages, the domicile of married women and children,201 the factors taken into account in declining jurisdiction or enforcing foreign judgments, and the scope for the invocation of sovereign immunity in assuming jurisdiction or enforcing foreign judgments are all issues potentially subject to human rights law in Africa.202 For example, the recent enactment of the South African Civil Union Act of 2006, which legalizes civil partnerships,203 suggests the need for Southern African countries, and possibly for the whole continent, to reassess the law on the recognition of such unions, reminiscent of the English struggle with polygamous marriages in private international law. This reassessment will become necessary as people, establishing a civil partnership in South Africa, seek recognition of their unions in their respective countries or elsewhere in Africa.
IV. CONCLUSION
The present state of private international law in the legal systems of individual African countries, and generally, on the continent as a whole, is nothing to write home about. Africa has remained impervious to many of the factors that have propelled the development of the subject in other parts of the world. The historical evolution of the subject in Africa has put much emphasis on internal conflict of laws problems to the neglect of equally important private international law issues. Today, however, Africa is faced with challenges that cannot be effectively met without the tools, techniques, and rules of private international law. Experience in other jurisdictions demonstrates that economic integration, the promotion of trade and investment, respect for human rights, and constitutionalism will give rise to issues which African private international law is currently ill-prepared to meet.
It is encouraging that academic interest in the subject is growing in Africa. This development, reflected in the emergence of leading texts, commentaries, and academic institutions dealing
199 The challenge was that the Act obliges the courts to act in a manner that is inconsistent with the
provisions of art. 28(2) of the Constitution that requires that a child’s best interests are of paramount
importance in every matter concerning the child.200 Richard F. Oppong, The Recognition and Enforcement of Foreign Judgments in Ghana: A Second
Look at a Colonial Inheritance, 31 COMMONWEALTH L. BULL. 19, 31 (2005).201 In Nku v. Nku, [1998] B.L.R. 187 the Botswana High Court refused to reform the common law rule that a married woman acquired the domicile of the husband on marriage on the ground that the rule discriminated against women.202 The impact of human rights law is also likely to be felt in the area of internal conflict of laws as
communities try to protect the customary laws by invoking their cultural rights and individuals resist
the application of customary laws on human rights grounds.203 Civil partnership is defined in s 1 as “the voluntary union of two adult persons of the same sex that
is solemnised and registered in accordance with the procedures prescribed by this Act to the exclusion,
while it lasts, of all others.”
39
with the subject, must be fostered. Even more importantly, interest in private international law should also grow in our law faculties where the subject currently occupies a marginal position in the curriculum. This is partly because of the mystery that surrounds it, and partly because of the belief that it is not important for practitioners—a belief made both anachronistic and dangerous in light of the internationalization of commerce and legal practice.
The future of private international law in Africa is promising. But we will be able to fulfil this promise only if we succeed in creating a new constituency for the subject, consisting of students, judges, practitioners, and researchers. The international academic community and the institutions dealing with private international law have a role to play in the realization of this promise as well. By providing fellowships, internships, avenues for publication and sharing of ideas, as well as by actively soliciting African perspectives on developing issues, the international academic community and the specialized institutions can make much needed contributions to the development of private international law in Africa.
40
