Trade and Development (2009). 1 United Nations Economic Commission for Africa (2004), p ix; and United Nations Conference on

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2 Index Introduction 1 What is regional Integration 3 Definition of Regional Integration 4 Steps of economic integration 5 Political Integration 6 K.C Wheare criteria (federalism) 7 Haas criteria (neofunctionalism) 8 Where does Africa fit within the stages and frameworks? 11 Points of divergence 12 WTO framework 13 African Union and African Economic Community 15 Stages of African Economic Integration 16 Regional Economic Communities in Africa 18 Challenges to regional integration and trade the legal aspects 28 Challenges facing Regional Integration in South-South trade 30 Challenges to regional integration in North-South trade 34 Conclusion 43 1

3 Introduction The advancement of regional integration in Africa is a pressing need. The United Nations Economic Commission for Africa (UNECA) echoed this pressing need in stating this shift (to regionalism) is nowhere more urgent than in Africa, where the combined impact of our relatively small economies, international terms of trade, and the legacy of colonialism, mis-rule, and conflict has meant that we have not yet assumed our global market share despite our significant market size. 1 The WTO creates the legal framework for contemporary trade relations. The default position was that of multilateralism with regionalism as an alternative or parallel avenue that plays a supporting role to multilateralism. The synergies in South-South, intra Regional Economic Community (REC), are high and have the potential of raising Africa s international profile through increased competitiveness, gaining economies of scale, fostering a sophisticated culture of trade and investment. However it seems that regional integration is stagnant. This paper will address African regional integration through the lenses of South-South trade and of North-South trade. By looking through these lenses one can pinpoint the challenges that hinder Africa s growth and development through regional integration. The paper will first discuss the underlying philosophical aspects of regional integration. By creating this basis, one can distill the underlying philosophical challenges of transposing a model created in Europe and applying it strictly to an African context. This section will focus of the works of Wheare and Haas and Schmitter in understanding the different approach philosophical approach to regional integration. The following section will take a brief interlude from the philosophical and legal frameworks of regional integration and trade. This section will discuss the relevant points of divergence from the socio-political in Europe and Africa. The next step of the paper will discuss legal framework that permits regional integration- the WTO. Further this section will discuss the legal framework of WTO in bestowing benefits on developing states that can be 1 United Nations Economic Commission for Africa (2004), p ix; and United Nations Conference on Trade and Development (2009). 2

4 applied to South-South and North-South trade relations. The following section will discuss the African Union and the African Economic Community. The history will be discussed which is helpful in understanding the approach of African states towards regional integration. The objectives will also be discussed to show the road map of where and how Africa intends to achieve full regional integration. The following section will discuss the Regional Economic Communities (RECs) in Africa. A brief description of the history, objectives and organs of each of the eight recognised RECs of the African Union: SADC, EAC, COMESA, ECOWAS,AMU/UMA, CEN-SAD, COMESA, EAC, CEEAC- ECCAS, and IGAD. The lone wolf, SACU will also be discussed. The paper then shifts to focus on the challenges that hinder the achievement of African regionalism. The next section will focus on the challenges of African regionalism through the lens of South- South trade. Given the supporting legal frameworks of the WTO and AU and AEC Treaties, why has African regional integration stalled. The next section will discuss the legal aspects of regional economic integration. Far too much attention has been given to the socio-political matrix that slows the rate of regional economic integration in Africa. The absence of these socio-political condition would still leave Africa in the same position. Here a discussion of the connection between community law and national law will be held. This section will discuss the phenomenon of concurrent memberships of African states in RECs. This section will show how this phenomenon is contra the harmonization and deepening of economic integration. Further this section will show that seemingly harmless occurrence is key in the hindrance of African regional economic integration. The next section will discuss the hurdles of African regional integration through the lens of North-South trade relations. The section will carefully analyse the EU-ACP Economic Partnership Agreements. With the EU s commitment to development and in full support of African regional integration the negotiations and agreements have halted. This section will consider the long history in identified Africa s approach in negotiating and signing these agreements. The section will then turn to discuss clauses in these agreements that have the potential of hindering African regional integration. Further it will turn to analyze how African states approach in negotiating, fuelled by concurrent memberships, has and if not yet- will lead to the disintegration within the RECs. 3

5 What is regional integration What is regional integration? When considering Africa s regional integration state of affairs, the question arises where did Africa go wrong? To correctly analyse and understand Africa s condition, it necessary to step back and assess the underlying philosophy of regional integration. By returning to the core framework, it is possible to understand the transposition of the regional integration model from Europe to Africa failed to occur as smoothly as anticipated. The following section will set out the basic framework and accompanying theory for the entire paper. Shift from Multilateralism to Regionalism The WTO by default, through its aims, is the gradual removal of trade tariffs and barriers in international trade. However it offers an alternative regionalism. Regionalism is a viable option for countries situated in the same geographical location, that have similar cultures and problems to band together to generate trade within the region. Further, trade tariffs and barriers are torn down in this way. In particular regionalism offers an alternative to developing countries, that were unsatisfied with the outcomes of Trade Rounds. Further developing countries are facing a common challenge of finding and advancing their position in the world market. The upward leap of the Asian Tigers and emergence of BRICS has left the African continent grasping at straws for a way to establish themselves in international trade. 2 One cannot doubt the benefits that can be gained from regionalism if one considers the example of the EU. However, caution should be given as the economic integration of the EU is unique. 2 It should be noted that South African did join the then BRIC, to change to the name to BRICS. 4

6 Definition of Regional Integration The definition of regional integration can be distilled from the writing of several authors. Ernst Haas, father of neo-functionalism defines regional integration as political integration is the process whereby political actors in several distinct national settings are persuaded to shift their loyalties, expectations and political activities to a new centre, whose institutions possess or demand jurisdiction over pre-existing national states. The end result is a new political community, superimposed over the pre-existing ones. 3 On the other hand, social and political scientist Karl Deutsch defines regional integration as a relationship among units in which they are mutually interdependent and jointly produce system properties which they would separately lack. 4 This later definition does not envisage or require the creation of a new entity. One cannot visualize or analyse regional integration without consider the work of Balassa, who constructed the linear economic model, who defines regional integration as a process and as a state of affairs. Regarded as a process, it encompasses measures designed to abolish discrimination between economic units belonging to different national states; viewed as a state of affairs, it can be represented by the absence of various forms of discrimination between national economies. 5 Further according to Balassa, there are four key ingredients to creating a supranational unit: (1) maintaining peace, (2) attaining greater multipurpose capabilities, (3) accomplishing some specific tasks, and (4) gaining a new self-image and role identity. 3 E. Haas The Uniting of Europe 1958 page K. Deutsch The analysis of International Relations 1968 at page B. Balassa The theory of Economic Integration 1961 at page 1. 5

7 Steps of Economic Integration Cooperation Before plunging into the four stages of Balassa s linear model, one has to take cognizance of the prior, but unnecessary step cooperation. 6 Cooperation is not a necessary step to achieving economic unity. Further cooperation can be an ultimate achievement for some. This step encapsulates the North-South trade relations, the EU- ACP Economic Partnership Agreements. Free Trade Agreement This is the first stage of Balassa s theory of economic integration. The first step is applied within the region. Members of the region agree to lower or eliminate import tariffs between themselves. The objective of this inward looking step is trade liberalization. Customs Union The next stage, establishment of a customs union, requires member states to impose a common external tariff on imports from non-member states. This outward looking step can only occur where in the presence of the harmonization of external trade policy between member states. According to the General Agreement on Tariffs and Trade, custom union is created when the following have been fulfilled: (1) the elimination of substantially all tariffs and other forms of trade restriction among the participating countries and (2) the establishment of uniform tariffs and other regulations on foreign trade with non-participating economies. 7 The Southern African Customs Union (SACU) has reached this level when it established a Customs Union in Southern Africa in The SACU functions with a common external tariff and the revenues divvied according to a revenue-sharing formula. 6 M. Holden Stages of Economic Integration From Autarky to Economic Union 2006 and W.Molle The economics of European integration: theory, practice, policy Article XXIV GATT. 8 Although its history predates to

8 Common Market The next stage of economic integration is the establishment of a common market. Building up from the Custom Union, this focus is extended from goods to include the free movement of services, capital and labour. Needless to say such deeper integration demands increased policy harmonization. Member states have restricted legroom to follow independent economic policies. Economic Union The final stage is that of an economic Union. This peak of economic integration requires the clever finesse of harmonizing and coordinating certain crucial policy areas such as monetary and fiscal policies, labour market, transportation, industrial policies and regional development. Political Integration Similar to economic regional integration, there are levels of political integration, mainly; intergovernmental political cooperation and intergovernmental coordination. Intergovernmental political cooperation This voluntary association is best described by Keohane who defined this step as the persistent and connected sets of rules (formal and informal) that prescribe behavioral roles, constrain activity and shape expectations. 9 Intergovernmental coordination This next level requires states to align their activities. Partial integration is described as a level of political integration, where member states part of their sovereignty to this supranational power. However member states still have autonomy to follow independent policies. Full integration occurs at the final stage of political integration this supranational organ has the power to act on the behalf of the member states in the international arena. 9 R.O Keohane The Demand for International Regimes

9 K.C Wheare criteria The theory of regionalism should be explored to determine whether the full establishment of the AEC is attainable and also what are the factors holding back the progress of African regionalism. The starting point is the work of K.C Wheare on federalism. King defines federation as an institution arrangement, taking the form of a sovereign state, and distinguished from other such states solely by the fact that its central government incorporates regional units in its decision procedure on some constitutionally entrenched basis. 10 Extracting from the definition federalism theory describes through analysis how federations amalgamate, how they function and how they are organized. It should be noted that the analysis of federalism theory is limited to the wider sense of independent countries joining but remaining independent but under the umbrella of a supranational body. 11 Without digressing too far from the criteria put forward by Wheare, a few remarks must be made on the choice of federalism. One would think the most logical avenue would be to apply the theoretical concepts in the EU to extract criteria that can be applied to the situation of Africa s regionalism. Academia is divided and at times lost in terming and explaining the concept of EU s supranationality and inter-governmental interaction and power division. Arguably, it does fit the classic form of federalism or confederation. Undoubtedly it is a sui generis. Last, attempting to classify the EU goes beyond the scope of this paper. In his renown work Federal Government Wheare precedes his criteria with states that it is imperative that there is an eagerness to be under a single independent government for some purposes at any rate put differently they must desire to be united, but not to be unitary. 12 Next Wheare answers the question of under what circumstances lead people 10 King Federalism and Federation 1982 at page And not in the sense of independent states or provinces joining to create a new country e.g the USA. 12 K.C Wheare Federal Government 1963 at page 35 and 36. 8

10 to desire to be part of a federation? Wheare responds to this by stating that [c]ommunities have been led to desire union for a variety of reasons. But in the modern federation some seem always to have been present. A sense of military insecurity and consequent need for common defence; a desire to be independent of foreign powers, and a realization that only through union could independence be secure; a hope of economic advantage from union; some political association of the community concerned prior to their federal union either in a loose confederation, or as parts of the same Empire, ; geographical neighbourhood; and similarity of political institutions. 13 Distilled from the above there are four groups of criteria: (1) Security a desire to be independence combined with a perceived threat; (2) prosperity an interest to attaining economic advantages; (3) commonness/familiarity a common thread or bond of the other parties and similar approach and understanding of political institutions; and (4) geographical proximity. This theory however fails, or rather ignores, to explain the slow transition of transfer of sovereignty to the overarching political centre. Nevertheless Wheare ascribing to liberal federalism begins with a relevant starting point in explaining regional integration. The theory put forward by neofunctionalism assists in explaining the slow rate of transition that occurs on the African continent. Haas criteria (neofunctionalism) The theory of neo-functionalism contributes meaningful hypothesis in the explanation of regional integration. First the overlapping shared assumption by federalism and neofunctionalism are: integration is an attempt to create a stronger unit than the individual member states before the integration; interests drive the process, not ideology; an external kick (threat, crisis) may ne necessary to ignite a higher stage of integration; the attitude of the elites is important; the participating states are democratic 14 Ernst Haas, father of neo-functionalism had an original theory based on the development of the EU. Initially Haas created background criteria to explain regional integration: entities should be substantially developed economically and industrially, with a common ideological pattern among participating units, and should possess pluralistic social 13 K.C Wheare 1963 at page 35 and Ibid. 9

11 structures. Haas revised his theory in his article with Philippe Schmitter and created a model less linked to the European integration process that could be applied in any region. The model can be divided into three sections: background conditions, conditions at the time of economic union and process conditions. First the background conditions described the size of unit; rate of transactions, degree of pluralism; elite complementarity. The second section, conditions at the time of economic union, describes: the governmental purpose; powers and functions of the new institutions. Last the process conditions consider: the style of decision making; growth rate of transactions; and actors adaptability. This model has more fluidity and considers elements such as culture that may play an important role in the integrations process in certain regions, especially Africa. Drivers of regional integration According to neo-functionalists there are three key processes that drive regional integration: positive spill over; transfer of domestic alliances; and technocratic automaticity. Positive spill over effect Another theory befitting to explain African regionalism is that of the spill over effect. The spill over effect describes that integration in one economic area would inevitably trigger the integration in another economic area. The spill over effect does not only describe a domino effect in economic policy area but also describes how economic integration eventually spills over and causes political integrity. According to Schmitter the spill-over could happen in the presence of certain changes: increased interdependence between member-states; a crisis of a certain size; development of a powerful regional bureaucracy; development of independent, regional interest organisations capable if acting in the region. 15 Applying this criterion to Africa, increasing interdependence within the RECs through South-South intra-trade will trigger the spill over effect. The strengthening of the regional institutions of RECs will activate the spill-over effect. Last 15 E. Haas & p. Schmitter Economics and Differential Patterns of Political Integration: Projections about Unity in Latin America 2005 at page

12 it is also conceivable that developing and strengthening regional interest organisation would also cause the spill over effect that is yet to occur in African regionalism. Transfer of domestic alliances The domino effect of economic integration eventually affecting and activating political integration then requires shifting of attitudes and loyalty within the political arena. According to Haas political integration as the process whereby political actors in several distinct national settings are persuaded to shift their loyalties, expectations and political activities to a new centre, whose institutions possess or demand jurisdiction over preexisting national states. The result is a new political community, superimposed over the pre-existing ones. 16 The transfer of loyalty and subsequently power from a national level to a supranational level, or specifically lack of it, is what is one of the main reasons African regionalism is failing to advance as it should. This can be concluded by various factors and characteristics of Africa. Regional integration was born from African leaders strong convictions to be economically and politically independent from their former colonisers. Two remarks can be made here: first, economic integration was linked with political integration from the beginning therefore the spillover effect, from one area to the other, is not strong enough to affect the other areas. Second, associated to the other, the concept of national sovereignty driven the elite disconnects transfer of loyalty and power to a supranational body. The concept has manifested in various ways in African regionalism. It was correctly pointed out by Joseph Nye that in applying this model to developing regions there is reason to believe that relations between the elites is by far the most important variable. 17 First, the lack of authority and powerlessness of regional institutions is rife. 18 The failure of transfer of domestic alliances is manifested in RECs approach to North-South trader relations however this point will be addressed later in the 16 E. Haas The Uniting of Europe 1958 at page J S Nye Patterns and Catalysts in Regional Integration: 1965 at page Most regional courts have ruled on cases that mainly concern Human Rights, and not necessarily trade related cases. For example, the SADC regional court has handed down judgments and orders that were not respected or followed by Member States governments. 11

13 paper. Last the failure of this process is manifesting and also negatively rooted in the multiple membership of RECs by states. Technocratic automaticity This chronicles the empowered supranational body taking over the process of deepening regional integration. The step is necessary in achieving the pinnacle of regional integration. Further this process cannot occur unless there is transfer of domestic alliances as described above. African RECs are yet to fully enter this stage. The framework and concepts by the above authors are not perfect. However they provide the necessary variables to consider in understanding the underlying factors to the hindrance of African regionalism. The correctness or power attached to these variables goes beyond the scope of the paper. Where does Africa fit within the stages and frameworks? African recs are currently in the stage political disintegration in their approach of negotiating and signing the EPAs or FTA with the EU. There is evidenced through their political dis-harmonisation. Since, in the unique situation of Africa, political integration is intrinsically linked to economic integration, the regression of one will ultimately lead to the regression of the other. As shown above, the unravelling of the political integration in the African states approach in North South relations will spill over and trigger the regression of economic integration. In the on-going debate whether regional integration is a political process and economic process, one must consider whether these theories will necessary fit the situation in Africa. Given the difference in culture, which in turns affects the approach of leaders, history and current position in the world market, one can only wonder if the economic integration policy designed for and by Europe could be transposed and successfully implemented in Africa. 12

14 The above framework is the framework to be applied through this paper. Point of divergence When applying these theories, one cannot help but notice whether these frameworks or patterns drawn from regional integration can be transposed to be successfully applied in another region. One cannot discuss legal frameworks and their chance of success without recognition of the social and politics aspects of the regions. On the other hand, and it should be noted that for far too long politicians have used the socio-political matrix as a scapegoat to explain the failure of continued advancement of regionalism within the continent. Further this section will provide the socio-political background of the EU s and Africa s respective application of regionalism. History The EU started as a six Member States group the European Coal and Steel Company Foundational Objectives. Europe had just closed the chapter on World War II, had entered into a new chapter the Cold War. The idea of the Community was advanced by the French foreign minister as a strategy to evade another war. The underlying aim of the creation of the Community was the sovereignty of states that causes prior disasters while empowering a supranational body that would be guardian of the created community. In 1951 the Treaty of Paris was signed by West Germany, France, Italy, Netherlands, Belgium and Luxemburg. The small community created to establish a common market for coal and steel evolved over the period of forty-eight years. Africa having had its first taste of independence in the northern part fuelled a wave dependence. Ignited by the ideals of Africanism, African leaders who were active in the resistance against the Scramble for Africa, banded together in solidarity vowed to be selfreliant and self-development. The first generation of post-colonial leaders had a strong sense of national pride accompanied by an even stronger sense of sovereignty. This explains African countries resistance to surrendering national and sovereign power to a supranational body and its reluctance to interfering in the internal affairs of other African 13

15 states. Further the bound formed during their struggle again colonisation explains their approach of quiet diplomacy. There is no need to rehash the current socio-political challenges plaguing the African continent. However it cannot be ignored and few remarks will be made on it. The corruption, lack of efficient resources, correcting infrastructures that were set for extraction in colonial times, failure to respect democratic processes, drought and famine continue to haunt the continent. However should these above factors disappear, arguably African regionalism would still be stalling and failing to launch. WTO Framework Conceived in 1995, succeeding GATT, the World Trade Organisation Agreement facilitates multilateral trade between Member States. Starting with an earnest 23 Members and ballooning to 160, being committed to liberalising trade and removing trade barriers. 19 The WTO creates the legal framework that sets the stages for trade relations in the world. The default position that the WTO documents present is that of multilateralism. Arguably the most well know clause of the WTO is the Most Favoured Nation (MFN) Clause. 20 This Clause encapsulates the underlying principles of non-discrimination, reciprocity and transparency. Article I 1 GATT calls on member states to immediately and unconditionally extend equal treatment to all Member States goods. Regional Trading Agreements are permissible according to Article XXIV of GATT 1994, Article V of the GATS and the Enabling Clause Members as of 16 June Article 1 GATT. 14

16 Article XXVI of GATT 1994 that recognizes the benefit of desirability of increasing freedom of trade by the development, through voluntary agreements, of closer integration between the economies of the countries parties to such agreements. The purpose of creating such regional blocs is the boost of trade between the involved countries but, on the other hand, not increasing barriers against third countries. Article V GATS According to Article V GATS allows member states to derogate from non-discriminatory multilaterism in the field of services only if the regional agreement: (1) has substantial sectoral coverage; and (2) provides for the absence or elimination of substantially all discrimination through: (i) elimination of existing discriminatory measures, and/or (ii) prohibition of new or more discriminatory measures. The Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries dubbed the Enabling Clause authorizes certain preferential arrangements such as regional or global arrangements entered into amongst less-developed countries for the mutual reduction of tariff reduction or elimination of tariffs. This creates an opportunity for developing countries to enter South-South RTAs on less rigorous requirements than under Article XXIV. There has been a shift from multilateralism to that of regionalism when the former failed to deliver the promises, or better yet failed to advance over a period of time, of free trade and removal of trade barriers. The numbers do not lie. As of 15 June 2014, some 585 notifications of RTAs (counting goods, services and accessions separately) had been received by the GATT/WTO. Of these, 412 notifications were made under Article XXIV of the GATT 1947 or GATT 1994; 39 under the Enabling Clause; and 134 under Article V of the GATS. Of these 585 RTAs, 379 were in force. 21 The proliferation of regional trade blocs has signified a shift from multilaterism. 21 See (accessed on 11 July 2014) and also available through the WTO RTA database at 15

17 The WTO sets the framework for the trade relations in both multilateral and regional systems. The WTO has recognized the important role regionalism plays in trade and its eventual benefit to the multilateral trading system. African Union and African Economic Community History and brief negotiations The history of the African Economic Community (AEC) can be traced back to various resolutions and sweeping declarations fettered in rhethoric lead to the establishment of the AEC adopted by the African Assembly in Algiers in September 1968, in Addis Ababa in August 1970 and finally May The OAU Summit meeting in July 1977 endorsed and approved the Kinshasa Declaration. The Kinshasa Declaration proclaimed the permanent sovereignty of African States over African natural resources and called for the establishment of an African Common Market, an African Energy Commission and an African Economic Community. 22 The next move towards the creation of the AEC was Monrovia Declaration of Commitment on the Guidelines and Measures for National and Collective Self-reliance in Economic and Social Development for the Establishment of a New International Order. In April 1980 African leaders affirmed their responsibility of Africa s development in the Lagos Plan of Action and the Final Act of Lagos. In the Final Act of Lagos, African leaders solidified their commitment to set up, by the year 2000, on the basis of a treaty to be concluded, an African Economic Community, so as to ensure the economic, social and cultural integration of our continent. 23 In the spirit of the Twenty-fifth Anniversary of the Organisation of African Unity, fifty-one out of the fiftyhttp:// e&sense=g (accessed on 12 July 2014). 22 Abdulqawi Y.A and Ouguergouz F. The African Union: Legal and Institutional Framework: A Manual on the Pan-African Organization 2012 at page Section II.A of the Lagos Final Act. 16

18 two OAU leaders signed the Treaty establishing the AEC on 3 July The Treaty entered into force on 12 May Preamble and objectives The AEC Treaty, and even the individual treaties establishing the respective RECs, is highly ambitious. Not only is economic integration a goal but also political integration. Authors have correctly distinguished two types of objectives from the AEC Treaty: general, long term goals and specific immediate goals. 24 The general or long-term goals are, first the advancement of African economic integration and second, an improved position for Africa as a player in the international trade field. From determined sovereignty masked as protectionism, that did not improve international trade from the African perspective, a new approach was imperative. The specific objective is the creation of a Pan-African Economic and Monetary Union (PEMU). It was correctly states that the immediate goals of the AEC Treaty do[es] not necessarily translate into the instant creation of PEMU but rather signify that this Union is a priority objective and a necessary condition to the realization of the objectives. 25 Stages of African Economic Integration Given that there are fifty-three Africa States, instant economic integration is unrealistic. 26 Therefore it was recognized that that African Economic Unity would gradually develop over various stages. 27 The first stage would be the establishment of eight Regional Economic Communities (REC). The second stage would be the harmonization of tariff between the eight RECs. Stage three would be the creation of a Free Trade Area (FTA). The fourth stage would be extending the FTA to a continental customs union. Stage five 24 Abdulqawi Y.A and Ouguergouz F. The African Union: Legal and Institutional Framework: A Manual on the Pan-African Organization 2012 at page Abdulqawi Y.A and Ouguergouz F. The African Union: Legal and Institutional Framework: A Manual on the Pan-African Organization 2012 at page The EU started with six Members States. 27 See Article 6 of the AEC Treaty. It was envisaged that these stages would occur over 34 years. Unfortunately the given time frame was not able to be met. 17

19 would build on the previous stages to create a single Common Market with a single currency. The final stage would be the unification of the individual RECs to form one African Economic Monetary Union. According to Article 6(2)(a) the first stage would be [s]trengthening existing regional economic communities and establishing communities in regions where they do not exist. The second stage, according to Article 6(2)(b), is three pronged: first, each REC must stabilize Tariff Barriers and Non-Tariff Barriers, Customs Duties and internal taxes; second, a strengthening of sectoral integration at the regional and continental levels in all areas if activity particularly in the fields of trade, agriculture, money, and finance, transport and communications, industry and energy; and the co-ordination and harmonization of activities between RECs. According to Article 6(2)(c) the third stage requires each REC to establish a FTA for the eventual removal of Tariff Barriers and Non-Tariff Barriers to intra-community trade and the establishment of a Customs Union by means of adopting a common external tariff. The fourth stages explained by Article 6(2)(d) is the co-ordination and harmonization of tariff and non-tariff systems among the RECs with the goal of establishing a Customs Union at the continental level by means of adopting a common external tariff. The fifth stage, Article 6(2)(e) envisages the establishment of an African Common Market through first [t]he adopting of a common policy in several areas; second [t[he harmonization of monetary, financial and fiscal policies; third [t]he application of the principle of free movement of persons as the provisions regarding the rights of residence and establishment; and last, [c]onstituting the proper resourcing of the Community. The final stage, according to Article 6(2)(f), envisages all the prior stages coming together to form the peak of African regional integration by the [c]onsolidation and strengthening of the structure of the Africa Common Market; integration of all the sectors namely economic, political, social and cultural; establishment of a single domestic market and a Pan-African Economic and Monetary Union; [i]mplementation of the final for the setting up of an African Monetary Union, the establishment of a single African Central Bank and the creation of a single African Currency; [i]mplementation if the final stage for the setting up of the structure of the Pan-African Parliament; implementation of the final stage for the harmonization and 18

20 co-ordination process of the activities of RECs; implementation of the final stage for the setting up of the structures of the executive organs of the Community. Currently the binding nature of the AU and AEC Treaties is questionable. Yes, they are ratified Treaties but they seem to hover over the heads of African states but with little connection to them. This lack of connection between the Treaties and the states is evidenced in the lack of harmonization of laws in trade between the RECs and also the lack power carried by certain institutions empowered by these Treaties. At this point it would be helpful to point to several clauses of the Treaties that will serve as examples to the questionable binding nature of the Treaties. Lastly article 3 Constitutive Act of the African Union highlights the need to coordinate and harmonize the policies between existing and future RECs for the gradual attainment of the objectives of the Union Article 88(1) of the AEC Treaty: the African Economic Community shall be established mainly through the co-ordination, harmonization and progressive integration of the activities of the RECs The Regional Economic Communities in Africa Currently the African Union recognizes nine regional blocs spanning over the vast African continent. Western Africa consists of West African Economic and Monetary Union (UEMOA), Mano River Union (MRU) and the Community of Sahel-Saharan States (CENSAD). The regional blocs in Central Africa are the Central African Economic and Monetary Community (CEMAC) and Economic Community of Great Lakes Countries (CEPGL). The Southern African Customs Union (SACU), Southern African Development Community (SADC) and Indian Ocean Commission (IOC). The Common Market for Eastern and Southern Africa (COMESA) creates a passage from Eastern to Southern Africa. The regional blocs in Eastern Africa are the Inter- Governmental Authority on Development (IGAD) and East African Community (EAC). 19

21 The Arab Maghreb Union (AMU/UMA) dominates the Northern African regional bloc. There are an outstanding fourteen organisations operating in Africa. However given the vast geographical space and high number of independent states, it seems more feasible to start with mini regional blocs which in time, will merge into one unified regional blocthe African Economic Community. This section of the paper will analyse and give brief description of the RECs in Africa. Given the brevity of this paper, the description of the REC will be brief. However the description is necessary is to understand the composition and background of each bloc as the issues tackled later in the paper are linked to the RECs. The Observatory concentrates on the analysis of 4 pillars that are considered to be tenets of regional integration and focused on by Regional Economic Community (REC) treaties and protocols. The 4 pillars are namely: (i) Harmonisation of Sectoral Policies in Infrastructure, Natural Resources, Climate, Food and Agriculture, (ii) Macroeconomic Policy Convergence, Financial and Monetary Integration, (iii)peace, Security, Stability and Governance and (iv) Trade and Market Integration. 28 COMESA The Common Market for Eastern and Southern Africa (COMESA) was established in December 1994 by four Member States, Djibouti, Kenya, Madagascar, Malawi, Mauritius, Sudan, Zambia and Zimbabwe. Conceived in the 1960s and caught up in the spirit of pan Africanism and collective self reliance-the idea of COMESA was born. 29 Originally established by four Members States, creating a preferential trade corridor from 28 See (accessed on 1 July 2014). 29 Although it was only signed on 5th November 1993 in Kampala, Uganda and was ratified year later in Lilongwe, Malawi on 8th December

22 Eastern to Southern Africa. The COMESA Treaty signed by twenty Member States 30 establishes a Preferential Trade Agreement (PTA). It should be noted that COMESA s vision and mission is centered on economic integration however its Treaty also suggests political integration. 31 Article 3 outlines the aims and objectives of the organization: to attain sustainable growth and development of the Member States; to promote joint development in all fields of economic activity and the joint adoption of macro-economic policies and programs to raise the standard of living of its peoples and to foster closer relations among its Member States; to co-operate in the creation of an enabling environment for foreign, cross border and domestic investment; to co-operate in the promotion of peace, security and stability among the Member States in order to enhance economic development in the region; to co-operate in strengthening the relations between the Common Market and the rest of the world and the adoption of common positions in international fora; and to contribute towards the establishment, progress and the realization of the objectives of the African Economic Community. 32 Article 4 outlines the policy towards trade liberalization customs co-operation where Member States commit to contribute towards the establishment, progress and the realisation of the objectives of the African Economic Community. 30 Republic of Burundi, Union of the Comoros, Democratic Republic of the Congo, Republic of Djibouti, Arab Republic of Egypt, State of Eritrea, Federal Democratic Republic of Ethiopia, Republic of Kenya, Libya, Republic of Madagascar, Republic of Malawi, Republic of Mauritius, Republic of Rwanda, Republic of Seychelles, Republic of The Sudan, Kingdom of Swaziland, Republic of Uganda, Republic of Zambia, Republic of Zimbabwe. 31 COMESA vision is to be a fully integrated, internationally competitive regional economic community with high standards of living for all its people ready to merge into an African Economic Community while its Treaty promotes, among other things, the co-operation in the cultural and social affairs which hints at political integration. 32 Article 3 COMESA Treaty. 21

23 The supporting institutions are: the Authority; the Council; the Court of Justice; the Committee of Governors of Central Banks; the Intergovernmental Committee; the Technical Committees; the Secretariat; and the Consultative Committee. 33 One of the key events occurred in 2000 when nine Member States established a Free Trade Area, elimination of tariffs on goods from within the bloc with a long-term view of eventually removing quantitative restrictions and other non-tariff barriers. 34 This in turn triggered a movement of trade liberalization within the bloc. ECOWAS The ECOWAS Treaty was signed in 1975 by fifteen States in Western Africa. 35 Article 3 describes the various stages of integration as: the harmonisation and co-ordination of national policies and the promotion of integration programmes, projects and activities, particularly in food, agriculture and natural resources, industry, transport and communications, energy, trade, money and finance, taxation, economic reform policies, human resources, education, information, culture, science, technology, services, health, tourism, legal matters; the harmonisation and co-ordination of policies for the protection of the environment; the promotion of the establishment of joint production enterprises; the establishment of a common market; and the establishment of an economic union. The Treaty establishes the following supporting organs: the Authority of Heads of State and Government; the Council of Ministers; the Community Parliament; the Economic and Social Council; the Community Court of Justice; the Executive Secretariat; the Fund for Co-operation, Compensation and Development; Specialised Technical Commissions. 36 SADC 33 Article 7 COMESA Treaty. 34 Signed by Djibouti, Kenya, Madagascar, Malawi, Mauritius, Sudan, Zambia and Zimbabwe, with Rwanda and Burundi joining in Benin, Burkina Faso, Cape Verde, Gambia, Ghana, Guinea, Guinea-Bissau, Ivory Coast, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, Togo with Mauritania withdrawing its membership in Article 6 ECOWAS Treaty. 22

24 The final African regional bloc, and the main focus, discussed in this paper is SADC. SADC is the successor of Southern African Development Cooperation Conference (SADCC). SADCC was formed in 1980 through the Lusaka Declaration Towards Economic Liberation then later formalized in the 1981 Memorandum of Understanding on the Institutions of the Southern African Development Coordination Conference. SADCC Member States were Angola, Botswana, Lesotho, Malawi, Mozambique, Swaziland, Zambia and Zimbabwe. The four main objectives were the reduction of Member State dependence, particularly, but not only, on apartheid South Africa; forging of linkages to create genuine and equitable regional integration; mobilisation of Member States resources to promote the implementation of national, interstate and regional policies; and concerted action to secure international cooperation within the framework of the strategy for economic liberation. In 1992 there was shift from resisting dependence on the Apartheid government to focusing on regional economic integration. 37 This shift is manifested in the SADC Declaration and Treaty. 38 The shift from SADCC to SADC also caused a shift in the fundamental objectives of SADC. SADC s main objectives are to: achieve development and economic growth, alleviate poverty, enhance the standard and quality of life of the people of Southern Africa and support the socially disadvantaged through Regional Integration; evolve common political values, systems and institutions; promote and defend peace and security; promote self-sustaining development on the basis of collective self-reliance, and the inter-dependence of Member States; achieve complementarity between national and regional strategies and programmes; promote and maximise productive employment and utilisation of resources of the region; achieve sustainable utilisation of natural resources and effective protection of the environment; and strengthen and consolidate the long- 37 This shift was caused by the fall of the Apartheid government in South Africa and therefore the fall of the last standing colonial powers. 38 The SADC Declaration and Treaty was amended once in 2001 to establish the Regional Indicative Strategic Development Plan. 23

25 standing historical, social and cultural affinities and links among the people of the Region. 39 Linked to the objectives of SADC, is the Common Agenda that highlights the key strategies and policies of the institution. Article 5 declares the underlying principles of the Common Agenda as: the promotion of sustainable and equitable economic growth and socio-economic development that ensures poverty alleviation with the ultimate objective of its eradication; promotion of common political values, systems, and other shared values, which are transmitted through institutions that are democratic, legitimate and effective; and promotion, consolidation and maintenance of democracy, peace and security. SADC s supporting institutions are the Summit of Heads of State or Government, Council of Ministers, Standing Committee of Officials, a Secretariat; and a Tribunal. East African Community (EAC) The East African Community (EAC) came again into existence on 7 July 2000 when the Treaty for Establishment of the East African Community which was signed in 30 November The EAC objective is to aim at widening and deepening co-operation among the Partner States in, among others, political, economic and social fields for their mutual benefit. To this extent the EAC countries established a Customs Union in 2005 and a Common Market in The next phase of the integration will see the bloc enter into a Monetary Union and ultimately become a Political Federation of the East African States. Its supporting institutions are the : Lake Victoria Basin Commission; Civil Aviation Safety and Security Oversight Agency (CASSOA); Lake Victoria Fisheries Organization; Inter University Council for East Africa; and East African Development Bank. The Community of Sahel-Saharan States (CEN-SAD) 39 Article 5 SADC Treaty

26 The Community of Sahel-Saharan States (CEN-SAD) was formed following the Conference of Leaders and Heads of States held in Tripoli, Libya. The CEN-SAD current Member States are Benin, Burkina Faso, Central African Republic, Chad, Côte d'ivoire, Djibouti, Egypt, Eritrea, The Gambia, Ghana, Guinea Bissau, Liberia, Libya, Mali, Morocco, Niger, Nigeria, Senegal, Sierra Leone, Somalia, Sudan, Togo, and Tunisia. The regional bloc established in February 1998, engulfs the northern part of Africa, with the exclusion of Algeria and Ethiopia. The objectives seem relatively concrete in their aim of the [e]stablishment of a comprehensive economic union based on a strategy implemented in accordance with a developmental plan that would be integrated in the national development plans of the member states. It includes investment in the agricultural, industrial, social, cultural and energy fields. 40 Their aim is to remove all barriers between Member States; the promotion of external trade through an investment policy in member States; the increase of means of land, air and maritime transport and communications among member States and the execution of common projects; the harmonization of educational, pedagogical, scientific and cultural systems of the various cycles of education. This REC is supported by the following institutions: The Conference of Heads of State; the Executive Council; the General Secretariat; the Sahel-Sharan Investment and Trade Bank; and the Economic Social and Cultural Council (ESCC). Economic Community of Central African States (ECCAS) This REC is the merger of the Central African Customs and Economic Union UDEAC members and the members of the Economic Community of the Great Lakes States (CEPGL) in ECCAS Member States are Member States are Angola; Burundi; Cameroon; Central African Republic; Democratic Republic of Congo; Gabon; Equatorial Guinea; Sao Tome and Principe; and Chad. The fundamental objective of the Community is the promotion and strengthening of harmonious cooperation and a dynamic, balanced and self-sustaining development in all areas of economic and social activity in order to achieve collective selfreliance and raise the standard of living of the population. 40 Article 2 CEN-SAD Treaty. 25

27 However due to conflict in the region and financial restrictions due to non-payment of membership fees, it lay dormat until The REC was revived again in the 90s after the second Extra-Ordinary Summit of ECCAS was held in Libreville on 6 February Intergovernmental Authority on Drought and Development (IGADD) In January 1986 the Intergovernmental Authority on Drought and Development (IGADD) to function as a body for development and drought control in their region. It was succeeded by the Intergovernmental Authority on Development (IGAD) in IGADD Memebr States are Eritrea, Ethiopia, Sudan, Uganda, Somalia; Dijbouti and Kenya.The objectives are geared towards food security, peace, trade and investment. Their aims are Promote joint development strategies and gradually harmonize macro-economic policies and programs in the social, technological and scientific fields; harmonize policies with regard to trade, customs, transport, communications, agriculture, and natural resources, and promote free movement of goods, services, and people within the region; create an enabling environment for foreign, cross-border and domestic trade and investment; achieve regional food security and encourage and assist efforts of Member States to collectively combat drought and other natural and man-made disasters and their natural consequences; initiate and promote programs and projects to achieve regional food security and sustainable development of natural resources and environment protection, and encourage and assist efforts of Member States to collectively combat drought and other natural and man-made disasters and their consequences; develop and improve a coordinated and complementary infrastructure, in the areas of transport, telecommunications and energy in the region; promote peace and stability in the region and create mechanisms within the region for the prevention, management and resolution of inter-state and intra-state conflicts through dialogue; mobilize resources for the implementation of emergency, short-term, medium-term and long-term programs within the framework of regional cooperation; promote and realize the objectives of the Common Market for Eastern and Southern Africa (COMESA) and the African Economic 41 Member States are Eritrea, Ethiopia, Sudan, Uganda, Somalia; Dijbouti and Kenya. 26

28 Community; facilitate, promote and strengthen cooperation in research development and application in science and technology. The Arab Magreb Union (UMA) The Constitutive Treaty of the Union of the Arab Maghreb created the Arab Magreb Union in 1989 with the view to coordinate, harmonize and rationalize their policies and strategies for sustainable development in all sectors of human activities. The current Member States of the UMA are Algeria, Libya, Mauritania, Morocco and Tunisa. The Marrakech Summit was preceded by the meeting of the five heads of state to Zeralda Maghreb (Algeria) June 10, 1988 during which it was decided to constitute a Committee, responsible for defining ways allowing the creation of a union of the five states of the Arab Maghreb. The objectives are: the consolidation of fraternal relations binding the Member States and their peoples, the realization of progress and well-being of their communities and the protection of their rights; the progressive realization of the free movement of persons, services, goods and capital between Member States; the adoption of a common policy in all areas. In economic terms, the common policy is to ensure the industrial, agricultural, commercial and social development of member states. The organs of the UMA are the Presidency Council, the Consultative Council, the Secretariat, the Monitoring Committee, the Meeting of the Prime Ministers, the Council of Foreign Ministers, the Ministerial specialized Commissions, the Judicial Organ, the University of Maghreb, and the Maghreb Bank for Investment and Foreign Trade (BMICE). Southern African Customs Union (SACU) According to UNECA, SACU is not a recognised REC of the AU. 42 However it is the oldest Customs Union having its origins from 1889 in the form of the Customs Union Convention between the colonial states of British Colony of Cape of Good Hope and the Orange Free State Boer Republic. A new agreement was signed in 1910 that included the Union of South Africa and the British High Commission Territories (HCTs)- i.e. 42 See (accessed 9 July 2014) for the list of recognized RECs in the AU. 27

29 Basutoland (Lesotho), Bechuanaland (Botswana), and Swaziland, South West Africa (Namibia). SACU has undergone various changes since its inception. The current Member States are South Africa, Lesotho, Namibia, Lesotho and Swaziland. Article 2 outlines the objectives for Member States as To facilitate the cross-border movement of goods between the territories of the Member States; to create effective, transparent and democratic institutions which will ensure equitable trade benefits to Member States; to promote conditions of fair competition in the Common Customs Area; to substantially increase investment opportunities in the Common Customs Area; to enhance the economic development, diversification, industrialization and competitiveness of Member States; to promote the integration of Member States into the global economy through enhanced trade and investment; to facilitate the equitable sharing of revenue arising from customs, excise and additional duties levied by Member States; and to facilitate the development of common policies and strategies. Interestingly enough, these objectives, unlike the other African regional blocs, are all focused on Member States and not towards eventual unified African regional bloc. Article 7 describes the supporting organs, mainly: the SACU Council of Ministers, the Secretariat, the Commission, National Bodies, a Tariff Board, Technical Liaison Committees and a Tribunal. 43 The technical Liason Committee are specialised Committees, covering specific sectors, and advise the Commission in its work. The Technical Liason Committee consists of the Agricultural Liaison Committee, Customs Technical Liaison Committee, Trade and Industry Liaison Committee, Transport Liaison Committee, Finance liaison Committee. The status and position of SAC, juxtaposed to the AU RECs goes beyond the scope of this paper All these regional blocs started small, which is logical given the vast size of the African continent and its many states. They are all working to develop trade within their REC to eventually lead the merge of all RECS to fall under the umbrella of the AEC. 43 SACU Agreement

30 Challenges to regional integration and trade the legal aspects Relational Issues The author, R. Frimpong Oppong correctly points that the legal aspects have been a neglected aspect of Africa s economic integration processes. 44 The author is of the view that the structure and managing of vertical, horizontal and vertico-horizontal relations among states, legal systems, laws and institutions are vital for effective economic integration. A principal challenge in regional economic integration is how to make community laws legally binding and enforceable within national legal systems. Community laws take the form of treaties, protocols, regulations, decisions, principles, objectives and general undertakings. The lack of attention to fortifying the legal aspects of regional integration may not be fully recognised as the RECs are still at early stages of the linear model. However this exact point is one of the reasons African regional integration is stagnant. The cracks caused by neglecting the legal aspects of integration will only appear when the continent is attempting to deepen economic integration. Certain authors take the view that economic integration is best complimented by informal institutional structures, cooperation, voluntary compliance and the belief in heads of states to implement the objectives. 45 However the correct view stated by Pescatore who remarked that [t]he process of integration can have no real consistency and, above all, no real stability or lasting force unless we succeed in giving it a sufficiently solid institutional and legal framework Richard Frimpong Oppong Legal Aspects of Economic Integration in Africa J.T Gathii African Regional Trade Agreements as Legal Regimes Pescatore The law of integration : emergence of a new phenomenon in international relations, based on the experience of the European Communities (1974) page 2. 29

31 Community law interacts with national constitutions on various issues. Through a number of provisions, community treaties acknowledge the existence of national constitutions, adopt conclusion legitimised by national constitutions or utilise their procedures for the implementation of community law. The failure to properly address the legal aspects of regional integration has, and will in the future, a hindering effect on regional integration and trade. Although the AEC Treaty and OAU Treaty discuss harmonisation of coordination of policies and laws in various clauses, the reality is the opposite. There is a strong disconnect between the community law, created by the respective REC Treaties, and the national laws of the members states. A failure to bring national law in line with the signed agreements, establishing regional integration, will leave regionalism as the topic of conversation among the political elite to the exclusion of other governmental arm such as the judiciary and legislative bodies. The organs created by the regional integration treaties remain relatively inactive. The regional courts have seen a fair number of cases sounding in Human Rights violations but none in trade as yet. However even in the overview of cases heard by regional courts, the orders and judgments are not respected or implemented by the offending member state. To rub salt into the wounds, no penalties or sanctions followed as a reaction to the failure to respect the judgements of the regional courts. Following from the above, individuals struggle to gain any benefit from the community. Indeed, a deepening and expanding of regional integration calls for the active participation of all institutions involved. Currently there is no solid framework for regulating relationships between RECs in Africa. On the other hand the Protocol on Relations was created foster and consolidate cooperation among the RECs, and the RECs with AU, through harmonisation and coordination of their policies, measures, programmes and activities in all sectors and 30

32 fields. 47 However given their strong charge, their is progress is yet to substantial enough to declare that a solid framework was created. A workable solution was put forward by Frimpong in his view that national legal systems should analyse the challenges their laws and jurisprudence pose for law translation and, where necessary, effect amendments or legislate to overcome them. This task should be founded on member states undertaking in the community treaties to create conditions favourable for the development and achievement of the goals of the communities and to abstain from measures likely to jeopardise the achievement of the aims of the communities. National rules that work against the effectiveness of community law offend this undertaking. 48 Returning to the point made in the section of Multiple Memberships, if according to AU Treaty, AEC Treaty envisages harmonisation of laws, how will countries that have multiple memberships to different RECs connect the community law to their national, if there is more than one community law applicable. In the eventuality that a national court or a community deal with a matter where there are different community laws applicable to one party. Challenges facing Regional Integration in South-South trade Multiple Memberships There is a puzzling occurrence of multiple memberships on the continent. Although the respective RECs ultimate objective is to merge under the auspices of the AEC, individuals countries merging through multiple memberships has negative effectives on the ultimate goal. 47 Article 3(a) Protocol on Relations. 48 See footnote 44 31

33 In southern Africa alone, the web of membership is severely tangled. 49 For example, Zimbabwe is a member of COMESA, SADC. While one of the economic giant on the continent South Africa is a member of SADC and SACU. On a superficial level, countries will be unable to give full commitment because due financial, technical support. Each REC will fail to advance to the next level of integration as a result of conflicting tariff barriers born from overlapping RECs commitments and agreements. Further this twisted tale of multiple membership leads to lack of coordination. Countries are failing to create and implement national programmes derived from their respective REC community project goals. Member States access to their REC s communal Fund is murky due to lack of fulfilment of financial commitment by members and failure of implementing a clear procedure and protocol for the access. The weaknesses of the RECs are amplified in the participation, negotiation and conclusion of North-South trade relations. The divided allegiance caused by multiple memberships of RECs has lead to countries forgetting their commitment when negotiating and concluding North-South trade agreements. Some countries have chosen to conclude independent EPAs and FTA with the EU. South Africa has concluded an independent FTA with the EU, leaving SACU and SADC in the cold. The Democratic Republic of Congo (DRC) is a member of COMESA and SADC but then joined CEMAC EPA negotiating group. The creations of RECs serve the purpose, beside the interim stage for final unification of AEC, of boosting trade within the region and increasing competition between the RECs that has the positive effect of increasing the standard of product. This healthy competition will never be fully realized if states continue to have overlapping memberships. All the signatories of the RECs are bound to the principle of good faith. According to UNECA: The duty to act in good faith means that the signatory should, in practical terms: Take not only all appropriate measures but also refrain from acts which defeat or jeopardise the attainment of the objectives of the decision; have the duty to take all 49 Please see diagram on next page for visual illustration. 32

34 appropriate steps to remove or eliminate incompatibilities with the Decision arising from pre-existing agreements between them and may not invoke the provisions of their internal laws as a justification for their failure to perform, observe and implement the Decision. This duty also derives from Article 93 of the Abuja Treaty that established the African Economic Community. 50 This phenomenon of multiple memberships of regional blocs is contrary to the AEC Treaty. Several clauses from the associated Treaties lend support to this view. First Article 3 Constitutive Act of the African Union highlights the need to coordinate and harmonize the policies between existing and future RECs for the gradual attainment of the objectives of the Union. Second Article 88(1) of the AEC Treaty: the African Economic Community shall be established mainly through the co-ordination, harmonization and progressive integration of the activities of the RECs. Multiple memberships breeds confusion which is the opposite of co-ordination and harmonization of the activities of the RECs because loyalties and attention are divided. The recent paper released on 4 April 2024 by WTO researcher is worthy of mention. 51 WTO researchers suggests that the trend towards regionalism could be reversed by The paper by Lionel Fontagné suggests that smaller regional blocs may still merge to create mega-regional blocs however the multilateral trade will remain crucial in supporting emerging players in the international economy. Further, in the future, multilateral trade will be an important in assisting South-South trade to intensify. The merits of these claims goes beyond the scope of the paper. However the views and projections of international organisations such as WTO and UNCTAD play a key role of how developing, and probably developed, shape their future trade goals and agendas. 50 See 51 Working Paper Lionel Fontagné, Jean Fouré and Alexander Keck Simulating world trade in the decades ahead: driving forces and policy Implications

35 Table representing overlapping membership of African RECs Source: UN Commission on Africa (2010) 34