TWAIL scholars seek to retell, rewrite and reconfigure international law by decentering some of its central myths such as its Westphalian origins. In addition to rewriting and writing international law from third world perspectives, TWAIL scholars critically appraise international law’s doctrines, operative logics and normative commitments and assumptions. From this perspective, the third world for TWAIL is not merely a geographical space. Rather, it is a locus of enunciation of international law from third world perspectives. TWAIL’s vantage point is critical of the universalizing mission and occidental authority of Eurocentric international legal scholarship and practice. TWAIL in particular rejects Eurocentric accounts of international law that fail to account for the history of subordinated groups within it and its current consequences such as those related to climate change, poverty and other forms of violence. TWAIL is therefore an oppositional and transformative set of commitments and ideas for rethinking the international legal order.

This chapter examines the first period of Kenya's ambitious 2010 Constitution through the lens of elections and political parties. Even as the Constitution promised a "new Kenya," old forces were seeking to undermine the transformative agenda. Instead of ensuring the liberal guarantees of the 2010 Constitution are protected and safeguarded, the governments in power since its enactment undermined them as part of their strategy of maintaining party and political dominance in the country.

In this chapter, I assess the implementation of Kenya's 2010 Constitution, one of the most important efforts in recent years to transform a political culture through constitutional change. Using a case-study approach, I assess the successes, challenges, and failures in meeting the Constitution's ambitious reform agenda. I then offer explanations for these varied outcomes.

The reforms required by the 2010 Constitution have been implemented with varying degrees of success, in fits and starts, as well as with varying speeds. Although the judiciary has transformed to become relatively more independent of the Executive than before the 2010 Constitution, its empowerment has been met with backlash, particularly from Parliament. In addition, corruption in the judiciary has continued. By contrast, the anti-corruption authority, the Ethics and Anti-Corruption Authority (EACC), recognized for the first time as an independent organ in the Constitution, has been hampered by its continued inability to prosecute and instead has had to depend on the Director of Public Prosecutions to prosecute suspects. Parliament has since the adoption of the 2010 Constitution been instrumental in the removal of two EACC Chief Executive Officers as well as other senior officials. Thus, the constitutionalization of leadership and integrity principles stands in sharp contrast to continued widespread corruption in all branches of government including in the newly established regional system of governance. A number of factors including new leadership and a swathe of new judges have been critical to the progress made in the judiciary, and the absence of such leadership in the EACC, as well as the lack of a consistent commitment to combat corruption in both the Executive and the Legislature, is a major explanation for the relative difference in outcomes. The resulting picture is one which reminds us of the need for political will to effectuate institutional transformation.

I also attribute the relative success in judicial reform to the highly energized civil society movement, which includes activist lawyers and individuals who have been at the forefront in monitoring the implementation of the Constitution and testing its contours in Court. In addition, donors have provided additional encouragement and funding to assist the very expensive process of implementing these constitutional changes.

Introduction

This chapter comprehensively introduces all eight African Regional Trade Agreements (RTAs), that are slated eventually to combine to form the African Economic Community (AEC) as we saw in Chapter IV and the Southern African Customs Union and its Trade Liberalization Scheme. For each RTA, the relevant section of the chapter begins with an overview that includes its founding date, purposes and members, as well as the sequence contemplated to be followed in the integration plan. Each of these integration schemes, free market, customs market, common market, monetary union and where there is planned political union, is examined in turn. For each RTA, a section evaluating progress made in the integration agenda concludes the discussion.

Introduction

This chapter examines trade agreements between African regional trade areas and non-African trade areas. Some agreements are not finalized yet. Examples of agreement that are yet to be finalized include Economic Partnership Agreements between various African countries, either individually or as members of a regional group, on the one hand, and the European Union, on the other. In addition, there are free trade agreements (FTAgs) being negotiated between African regional groups like the East African Community, on the one hand, and the United States, on the other. Several agreements have been finalized and these will be discussed. There are several bilateral treaties, including those relating to investment signed between individual African countries and their non-African trading partners, including China and certain Latin American countries, among others. The goal of this chapter is to provide a sense of the types of trade agreements African regions have entered into or are entering into with their non-African trading partners. As the chapter shows, a common feature of these is that they often embody trade commitments in areas such as services and investment measures which are traditionally not areas in which intra-African trade agreements, until recently, have been concerned about. In addition, many of the agreements such as the Economic Partnership Agreements are moving away from preferential measures towards full reciprocity. Perhaps as an extreme example, some of the agreements now incorporate WTO-Plus obligations. The best example of this is the US–Morocco FTAg under which Morocco agreed to extremely broad protections of intellectual property rights beyond those it has committed itself under the TRIPS Agreement. An example of such a WTO-Plus protection includes data exclusivity protection that prevents generic competitors from using clinical trial data. Another example is the prohibition of registration of competing generics prior to the expiry of the period of patent protection.

Introduction

Trade integration in Africa is often viewed in light of the European Union and other regional integration arrangements like the North American Free Trade Agreement (NAFTA). From this perspective, integration is regarded as necessarily destined to proceed on a linear path where tariffs and non-tariff barriers are progressively eliminated, the trade regimes of member countries are linked together, and eventually their fiscal and monetary policies are harmonized. In the European experience, trade integration has been the result of a series of treaty commitments that also created a supranational organization to which the states transferred certain types of authority.

Introduction

This chapter addresses the legal framework for financing African RTAs as well as the legal, policy and practical challenges that arise in the context of their financing. In my research, I did not come across any similar effort. I confronted challenges of getting reliable and up-to-date data to show where African RTAs were raising their revenue – whether through member contributions, donors or other sources. As this chapter shows, financing African RTAs has been a huge challenge.

Introduction

This chapter examines intra-African regional trade integration agreements, as well as examples of projects funded to realize such integration. The chapter begins by giving a brief overview of the African Economic Community (AEC), which is ultimately the goal of economic integration in the continent, as well as the various regional arrangements that are its pillars and that have been the subject of this book so far. The chapter shows that the treaties establishing each of these regional bodies, or RTAs as I have referred to them throughout this book, anticipate such cooperation between regions. The chapter then examines the importance of linkages between the regions in agriculture, which is of major importance to African economies, before examining the importance of links in communications, information and communication technology and air transport and surface transport (roads, rail, ports and maritime). The chapter ends with a discussion of the proposed COMESA-EAC-SADC FTA and the East Africa Migration Route Programme.