ANCL-RADC ANNUAL CONFERENCE – ‘The Internationalisation of Constitutional Law’
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WORKING PAPER
Please do not use this paper without contacting the author on: b.fagbayibo@gmail.com
Enhancing good governance in Africa: The imperative of a supranational
approach
Babatunde Fagbayibo
Abstract
At the core of the discourse on the political and economic development in postcolonial Africa is the debate on governance. The proven nexus between good
governance and socio-economic development provides the basis for the immense
interest in improving African governance. The dynamics of providing an effective
answer to the vexing state of African governance is the main problem that this paper
seeks to tackle. This paper investigates the possibility and methodology of granting
African regional institutions the authority to superintend the implementation of good
governance standards across the continent. Put differently, to what extent can
regional institutions positively impact on democratisation and good governance at the
national level? At the heart of this problematique is the discussion on
supranationalism, especially the logic of improving governance standards through an
organisation that possesses binding powers.
Keywords: Supranationalism, good governance, regional institutions, democracy.

LLB (UNISA), LLM LLD
<b.fagbayibo@gmail.com>
(Pretoria) Lecturer in
law,
Midrand
Graduate Institute,
Johannesburg.
1
Enhancing good governance in Africa: The imperative of a supranational
approach
Babatunde Fagbayibo
I Introduction
At the core of the discourse on the political and economic development in postcolonial Africa is the debate on governance. The proven nexus between good
governance and socio-economic development provides the basis for the immense
interest in improving African governance.1 The inability of immediate postindependence elites to lay the foundation for the essential features of good
governance continues to frustrate meaningful attempts to provide a sustainable
democratisation process. As such, the matrix of governance in post-colonial Africa
was, and still is, largely characterised by the monopolisation and manipulation of the

LLB (UNISA), LLM LLD (Pretoria) Lecturer in law, Midrand Graduate Institute, Johannesburg.
<b.fagbayibo@gmail.com>
1
See e.g. New Partnership for Africa’s Development (NEPAD), ‘Governance in Africa’s development: Progress,
prospects and challenges’. The 9th African Partnership Forum, Algiers, Algeria, 2007.
Available at
http://www.oecd.org/dataoecd/6/23/41078136.pdf (Accessed 20 November 2010).
2
national political (and economic) process. Electoral chicanery, suppression of
opposition, nepotism and the personalisation of the national treasury has all become
the hallmark of most post-colonial states.2
The practicalities of addressing the problematic nature of governance in Africa have, in
the past two decades, been the object of numerous articles and reports by scholars,
multilateral institutions and Non-governmental Organisations (NGOs). Some of the
recommendations include the promotion of the rule of law, strengthening of critical
national institutions, empowering civil society, and the inclusion of traditional authorities
in modern governance structures.3
It is within this context that this paper intends to investigate the possibility and
methodology of granting regional institutions the authority to superintend the
implementation of good governance standards across the continent. Put differently, to
what extent can African regional organisations positively impact on democratisation and
good governance at the national level? In this respect, this paper investigates the
feasibility of granting regional institutions the power to make binding rules and
regulations and also the capacity to monitor the implementation of governance
standards. In this regard, this paper offers suggestions that apply to both continental
and sub-regional institutions in Africa.
The paper starts with the discussion of the theory of supranationalism. This is followed
by examining the importance of addressing governance through a supranational prism.
It concludes with an analysis of the feasible framework for supervising adherence to
good governance in member states.
II The theory of supranationalism
2
Adejumobi S, ‘Elections in Africa: A fading shadow of democracy?’ International Political Science Review, 21(59)
2000, p 62.
33
See generally, Ibid; Economic Commission for Africa, Relevance of traditional institutions of governance. Addis
Ababa: Economic Commission for Africa (2007).
3
The study of supranationalism4 has been largely inspired by the increasing powers of
transnational institutions in Europe. In the past five decades, Europe has witnessed the
establishment of institutions that possess the power to initiate and adopt binding
regulations to member states. Within the framework of the European Union (EU),
member states are expected to comply with decisions on matters relating to agriculture,
immigration, trade and monetary regulation.5 The policy-setting responsibilities of the
EU on these substantive issues do not only set it apart from other international
institutions, it has also provided the fertile foundation for research studies on the nature
of supranationalism.
Weiler identifies the two facets of supranationalism as decisional and normative
supranationalism.6 He describes decisional supranationalism as the process through
which ‘institutional framework and decision-making processes, policies and measures
are, in the first place, initiated, debated and formulated, then promulgated and finally
executed’.7 In a supranational arrangement, decisions are arrived at through a majority
voting system rather than consensus.8 Normative supranationalism deals with the
(hierarchical) relationship between the laws of regional institutions and its member
states. Weiler identifies the three elements of normative supranationalism as direct
effect, supremacy and pre-emption.9
The doctrine of direct effect is defined as ‘a provision which is clear and unconditional
and bestows a legal right on a natural or legal person, exercisable against another
natural person, or against the authorities of a member state’.10 Supremacy implies that
4
Rosamond defines supranationalism as ‘the development of authoritative institutions of governance and network
of policy-making activities above the nation-state’. Rosamond B, Theories of European Integration, London:
McMillan (2000) p 204.
5
See e.g. Dashwood A, Wyatt D, Arnull A & Ross M, European Union Law, London: Sweet & Maxwell (2000)
6
Weiler J, ‘The Community System: The Dual Character of Supranationalism’. Yearbook of European Law 1,
(1981) p 271.
7
Ibid, p 271.
8
Ibid.
9
Ibid, pp 273-280.
10
Dashwood et al (2000) pp 158-159.
4
when there is a conflict between regional and domestic laws, the former supercedes.11
In the Commission v Council case, the European Court of Justice (ECJ) explained the
principle of pre-emption as follows:
Each time the Community, with a view to implementing a common policy
envisaged by the Treaty, adopts provisions laying down common rules, whatever
form these may take, the Member States no longer have the right, acting
individually or even collectively, to undertake obligations with third countries
which affect those rules. As and when such common rules come into being, the
Community alone is in a position to assume and carry out contractual obligation
towards third countries affecting the whole sphere of application of the
Community legal system.12
At the core of the theory of supranationalism is the existence of a politico-legal
framework which ensures that regional institutions not only make binding laws but also
possess the capacity to enforce the implementation of such laws.
III The state of African governance: Can supranationalism make a difference?
The state of governance on the continent is indeed worrying. As the ‘African
Governance Report’ precisely avers:
Democratic culture has yet to be institutionalised, as vestiges of authoritarianism
threaten the democratic process and the politics of consociationalism and politics
of accommodation are not yet rooted in the polity. Thus, political tension, conflict
and crises are emerging patterns of electoral politics in Africa.13
While the early 1990s ushered in an era of multi-party democracy, the reality on the
ground shows that there has been a huge deficit of substance.14 Put differently the ritual
11
See e.g. De Witt B, ‘Direct Effect, Supremacy, and the Nature of the Legal Order, in Craig P & De Burca G (ed),
The Evolution of EU Law, Oxford: Oxford University Press (1999) p 152.
12
See (Case 22/70) [1971] ECR 263, paras. 17-18.
13
Economic Commission for Africa, African governance report II, Oxford: Oxford University Press (2009) pp 1-2.
14
Adejumobi (2000) p 66.
5
of elections every four or five years and the recognition of opposition parties is largely
diminished by electoral chicanery, intimidation, muzzling of the media and entrenched
corruption.15 Without detracting from the successful advances at consolidating
democracy in countries such as Ghana, Cape Verde, Benin, Botswana, Mauritius and
South Africa, it is essential to be mindful of the high prevalence of undemocratic forces.
The expectations of a new era of governance in places like Rwanda, Ethiopia, Eritrea
and Uganda have been overtaken by the desire of political elites to monopolise the
structures of power. Thus, the increasing tendency to use elections as a means of
sustaining perpetual rule remains a huge drawback to the project of entrenching good
governance standards.
Before providing the template for supranational monitoring and evaluation of
governance, it is essential to understand the imperative of the idea of supranational
control. Put differently, why is a supranational framework central to the entrenchment of
good governance standards on the continent?
As it requires the substantial transfer of substantial powers to a neutral authority,
supranationalism ensures decisive and effective response to problems. Unlike
intergovernmentalism, which thrives on the primacy of states in decision-making,16
supranationalism builds on the understanding that the similitude of values can provide
the foundation for strengthening regional institutions to play a primary role in actualising
developmental objectives. This is reflected in the decision-making matrix of
supranational organisations. For example, the framework for arriving at decisions in the
EU carefully balances the authority of member states (as represented by the Council)
and transnational actors such as Parliament and the Commission.17 In this case, the
15
According to the 2009 Freedom House Survey of Political Rights and Civil Liberties, Sub-Saharan African countries
record a poor showing in terms of adherence to rule of law and democratic governance. Of the 48 countries
surveyed, only 10 (21%) were regarded as free, 23 (48%) were rated partly free and 15 (31%) were rated not free.
Available at http://www.freedomhouse.org/uploads/special_report/77.pdf (Accessed 11 April 2009).
16
See e.g. Weiler J, The Constitution of Europe: Do the new clothes have an emperor? And other essays on
European integration. Cambridge: Cambridge University Press (1999) p 275.
17
http://europa.eu/institutions/decision-making/index_en.htm (Accessed 11 December 2010)
6
technocratic arm of the EU, the Commission, proposes legislations while the Council
and Parliament share, depending on the areas of competence, legislative powers.18
In the African context, the absence of a framework that enhances the visibility of
transnational technocrats and legislature in the policy-making process diminishes the
possibility of a coherent and decisive response to governance issues. The fact that
transnational decision-making powers often resides in the committee of heads of states,
ensures that the politics of survival and preservation determines the reaction to antidemocratic tendencies in member states. As Birikorang rightly observes:
One particular setback against the institutionalisation of this norm has been the
leadership in Africa who have openly supported the unconstitutional changes of
government, despite the overall condemnation by the AU Commission. In March
2009, the Chairman of the African Union, Colonel Muammar Gaddafi, intimated
that sanctions against Mauritania should be lifted and the ‘case closed’ as coup
leaders had promised to hold elections in June 2009. Even before the sanctions
were instituted against the coup leaders, some other African leaders such as
President Abdoulaye Wade of Senegal had been opposed to the AU’s application
of sanctions in Mauritania.19
The above described attitude clearly explains why transnational frameworks for
entrenching governance norms remain ineffective. Unlike the ‘club’ of heads of states,
which is composed of individuals with varied interests and motives, transnational
agencies are better placed to view and handle issues from a purely neutral, objective
angle.
On a practical level, European integration has shown the strong nexus between
supranationalism and the entrenchment of democratic standards in member states.
Through its numerous commitment mechanisms, the EU has ensured substantial
18
Ibid.
Birikorang E, ‘Revisiting the trajectory of regime change in Africa – An overview’. Paper presented at the AHSI
Seminar: Unconstitutional regime changes: The resurgence of coups in Africa (2009) pp 5-6. Available at
http://www.iss.co.za/uploads/09SEP09BIRIKORANG.PDF (Accessed on 9 October 2009).
19
7
political and economic reforms in member states from Central and Eastern European
Countries (CEECs).20 The conditions attached to accession to the EU, especially as it
relates to adherence to liberal democracy, have also been credited for the consolidation
of democracy in former authoritarian regimes in Greece, Spain and Portugal.21
IV Superintending adherence to good governance: What manner of control?
The process of supranational control of governance cannot ignore some core
fundamentals. One such fundamental is the need to ensure the democratic legitimacy of
regional institutions. As regional institutions are expected to make far-reaching
decisions, which not only impact on member states, but citizens as well, the question of
democratic legitimacy becomes a sensitive topic of discourse. The argument is that
unlike nation states, the decision-making matrix of supranational institutions is
dominated by officials who are not directly elected by the citizens. 22 As Esty surmises,
the question of legitimacy points to two fundamental points: ‘(1) who holds the decisionmaking authority and (2) how formal and binding the results of the international decision
process are.’23
20
See generally, Ram M, Romania’s reforms through European integration: The domestic effects of European
Union law. pp 1-23. Available at http://www.hks.harvard.edu/kokkalis/GSW1/GSW1/20%20Ram.pdf (Accessed
30 November 2008).
21
Fernandez R & Portes J, ‘Returns to regionalism: An analysis of nontraditional gains from regional trade
agreements’. The World Bank Economic Review 12/2, (1998) p 208.
22
See e.g. Esty D, ‘Good governance at the supranational scale: Globalising administrative law’. The Yale
Law Journal 115/1490 ( 2006) pp 1515-1516. Zweifel identifies the seven key indicators of democratic
deficit as:







Appointment (whether a directly elected legislature is involved in the appointment of key
officials of the organisation)
Participation (the involvement of the civil society in the decision-making process of the
organisation)
Transparency (whether the decision-making process is open and accessible to the public)
Reason-giving (whether the organisation widely publishes the rationale behind its decisions)
Overrule (whether there is a mechanism for checks and balances within the institutional
framework)
Monitoring (how are policies and decisions of the institutions monitored?)
Independence of the organisation from the overbearing influence of member states
See Zweifel T, International organisations and democracy: Accountability, policies and power. Boulder:
Lynne Rienner Publishers (2006) pp 18-26.
23
Esty (2006) p 1509.
8
In the African context, it is important that policy frameworks ensure that the decision
making process of transnational institutions is inclusive. This requires a process that
balances the interests of member states with the autonomy of transnational institutions
such as technocratic agencies and a directly elected parliament (at continental and subregional levels). This should also include the active engagement of the civil society in
policy formulation.
In relation to policy frameworks aimed at entrenching good governance, it is imperative
that technocratic arms (such as Commissions or Secretariats) are given the adequate
resources to provide, in conjunction with civil society, technical assessments on
governance. The assessment should also include recommendations on the appropriate
steps to take with regard to warning or imposition of sanctions. The deliberation on and
implementation of such assessment should be the shared responsibility of the
representatives of member states (e.g. the Council) and the directly elected
parliament.24
Compliance with the decisions of supranational institutions is an essential requisite for
legitimacy. As Chayes & Chayes observes, ‘compliance is a normal organisational
presumption’.25 In order to ensure effective compliance with transnational decisions on
governance standards, there is need for a framework that incorporates both national
and transnational actors in the implementation process. In this regard, there should be a
permanent technical implementation committee, with equal representation of national
and transnational representatives. The implementation committee should then make the
final call on the appropriate remedial action.
The effective control of good governance will also require enhanced synergy between
continental and sub-regional institutions. This should include regular meetings,
information-sharing and coordinated reports on the state of governance in member
24
The direct election of transnational parliamentarians is crucial as it guarantees that citizens are (in) directly
involved in the supranational policy-making process. For a detailed discussion on the importance of expanding the
powers of transnational parliaments, see e.g. Mpanyane S, Transformation of the Pan-African Parliament: A path
to a legislative body? Occasional Paper 181, Institute of Security Studies (2009)
25
Chayes A & Chayes H, ‘On compliance’. International Organisation. 47/2 (1993) p 179.
9
states. In a situation where a sub-regional institution has made an objective and
accurate assessment of governance and also recommended the necessary action(s),
efforts should be made to incorporate such report into a continental programme of
action. This would require the harmonisation of monitoring and disciplinary structures, a
measure necessary for ensuring a more effective and coordinated response to
transnational directives.
Closely related to the point made above is the need to ensure sustained engagement
between transnational and national institutions. The primacy of nation states in
international law/relations means that the effectual exercise of supranational functions is
dependent on the willingness of states. As Zurn notes, two factors are responsible for
the primacy of nation states. The first is that the state has a monopoly of force, and as
such could compel obedience and conformity to its rules and standards. 26 The second
relates to the citizens’ psychological attachment to a particular nation state (national
identity).27 Thus, it is imperative that the legal framework of superintending good
governance standards take into account the methodology of using national structures
for effecting compliance. This requires the incorporation of transnational directives as
national rules and regulations.
V Concluding observation
Adherence to the principles of good governance remains a primary key to unlocking
Africa’s development potential. The existence of numerous transnational instruments for
advancing governance points to the realisation of this fact. The dismal reality of an
increased gravitation towards bad governance and anti-democratic orientation shows
that more work needs to be done in terms of making good governance the norm rather
than the exception.
In this respect, this paper argues that an effective way of advancing the ethos of good
governance is by enhancing the powers of regional institutions to monitor the
26
Zurn M, ‘Law and compliance at different levels’ in Joerges C & Zurn M (eds), Law and governance in
postnational Europe: Compliance beyond the nation-state. Cambridge: Cambridge University Press (2005) 5.
27
Ibid.
10
compliance with governance standards in member states. The effect of EU membership
on democratic reforms in CEECs indicates a strong nexus between supranationalism
and good governance in member states. In order to ensure the effective regulation of
good governance in African states, this paper proposed a number of points. The first is
that the substantial transfer of authority to regional institutions should begin with
ensuring that such institutions have democratic legitimacy. It further considered the
importance of ensuring that there is enhanced synergy between the various levels of
transnational structures on the one hand and between transnational and national
officials on the other hand. These interactions are necessary for efficient monitoring and
implementation of governance standards.
Granted that the primary responsibility of ensuring good governance rests on national
governments, the existence of a supranational framework provides an additional layer of
checks and balances. Through the strengthening of commitment mechanisms, regional
institutions can play a meaningful role in the regulation of governance standards in
member states.
11