In the last few weeks I have seen articles by various African academics, critiquing the system of dispute settlement mechanisms (DSM) under the Agreement establishing the African Continental Free Trade Agreement (AfCFTA) entered into force on 30 May 2019. In particular, one author suggests that he does not think that African states will be willing to submit cases to the panels or the appellate mechanism available in the DSM. Simon argues and I consider correctly so, that it is an open secret that World Trade Organization (WTO) African-country Members have rarely, if ever, made use of its dispute settlement system, which nevertheless guarantees a de jure equality between its Members regardless of the economic weight of the parties to the conflict.This argument has for a long time been advanced by several African academics. Mosoti opines that African countries have largely been absent as players at the WTO dispute settlement system in its first decade. According to him, this has been attributed to a number of factors, among them, the low volume of trade with an export base often characterized by single unprocessed commodities, a complicated and expensive dispute settlement system, inadequate legal expertise and a less litigious approach to possible disputes particularly when major trading and donor partners are involved.
Both Akinyi and Simon argue that conciliation and mediation are embodied in the African way and are the best way to solve the disputes under the AfCFTA-DSM. They both seem to argue that the rationale for such proposal is that African states’ brotherhood mantra is deeply entrenched and hardly do ‘brothers sue brothers.’ Further, that we cannot disregard the “African system” of peaceful settlement of disputes where political solutions (through negotiations and conciliations) are always preferred over judicial settlements, so much so that any criticisms over lack of adjudication may seem improper. While they sound rather very convincing that the data available seems to suggest that this would be the case, methinks that the best way to develop international trade law and general international law, is by developing the mechanisms of the AfCFTA-DSM. This will ensure that states participate robustly in the litigious process in order to have permanent legal solutions to legal disputes and not political compromises which have been seen to prolong the never ending trade disputes among African states.