Derechos y deberes en la ciudadanía digital

The New Partnership for African Development (NEPAD) is an instrumental organisation that works in conjunction with the AU towards the achievement of the AU’s stated goals.³⁶⁶ It is a mandated initiative of the AU. It is no accident that the AU and NEPAD seek to promote regional integration as its importance to Africa’s development cannot be overstressed.³⁶⁷

363 Oppong ‘Private International Law in Africa: The past, present and future’ 55 Am. J. Comp. L. (2007) 704

364 Article 57 (1) of the Treaty of the Economic Community of West African States under which ‘Member States undertake to co-operate in judicial and legal matters with a view to harmonising their judicial and legal systems’, may broadly be interpreted to encompass trade mark laws.

365 Venter & Neuland Regional integration (2007) 11.

366 Article 3 of the Constitutive Act of 2000.

367 Akokpari ‘Africa’s Quest for Long-Term Development: Does NEPAD Provide the Necessary Policy Framework?’ (2008) 11 African Journal of International Affairs 42.

Regional integration is one of the principles which underpinned the Organisation for African Unity (OAU)³⁶⁸ and its successor, the AU. The Lagos Plan of Action for the Development of Africa of 1980 as well as the Abuja Treaty of 1991 recognised and promoted regional integration. The Preamble to The Lagos Plan of Action of 1980 highlighted the need for African countries to adopt a regional approach following unfulfilled promises of global development strategies aimed at improving the region which instead resulted in the region becoming stagnant and more susceptible to the economic and social crises suffered by developed countries.³⁶⁹ A regional approach was consequently a response to the economic problems that African countries had suffered. African leaders had an idea of creating a dynamic and interdependent African economy that would pave way for the eventual establishment of an African Common Market leading to an African Economic Community.³⁷⁰ The Abuja Treaty of 1991 reinforced the need to strengthen the existing regional economic communities as the basis for integrating Africa,³⁷¹ mainly regional integration with a view to promoting trade. Harmonisation of laws plays a crucial role in the regional economic communities as it is inextricably linked to trade,³⁷² therefore, failure to call for harmonisation

368 The Lagos Plan of Action for the Development of Africa of 1980 as well as the Abuja Treaty of 1991 recognised and promoted regional integration. It is vital to note that the focus so far, has been on integrating Africa through regional economic communities which would ultimately require the harmonisation of laws including IP laws.

369 Preamble to the Lagos Plan of Action for the economic development of Africa 1980-2000 signed in Addis Abba, Ethiopia available at http://www.uneca.org/itca/ariportal/docs/lagos_plan.PDF (accessed 12 June 2012).

370 The establishment of a common market has been a long standing goal for continent. See Art 250 (iv) of the Lagos Plan of Action for the economic development of Africa 1980-2000 signed in Addis Abba, Ethiopia available at http://www.uneca.org/itca/ariportal/docs/lagos_plan.PDF (accessed 12 June 2012).

371 Africa leaders further pledged their commitment to promote economic integration of the region by establishing the African Economic Community. The objectives of the African Economic Community included promote economic, social and cultural development and the integration of African economies in order to increase economic self-reliance and to promote an endogenous and self-sustained development and to coordinate and harmonize policies among existing and future economic communities in order to foster the gradual establishment of the Communit: Art 4 & 28 of the Treaty establishing the African Economic Community signed on the 3^rd of June 1991, in Abuja Nigeria available at

http://www.uneca.org/itca/ariportal/abuja.htm (accessed 12 June 2012). It should be noted that even though the OAU tried to harmonise policies between regional economic communities, it did not prevent a

proliferation of these communities during the 1970s and 1980s. The proliferation of these communities created serious inefficiencies’, duplication of resources and unintended overlaps: see van Niekerk ‘Economic integration, Millennium Development Goals and African reform challenges in the view of global financial crisis’ in Alabi, Alemazung, Bass, Gutowski, Kappel, Knedlik, Uzor & Wohlmuth (eds) African

development perspectives Yearbook 2010/2011: Africa and the global financial crisis-impact on economic reform processes (2011) 42.

372 Regional integration is essential in the sense that it reduces the cost of doing business and increases opportunities for doing business : see European Commission ‘Economic Partnership Agreements: Means and objectives’ (2010) 4 available at http://trade.ec.europa.eu/doclib/docs/2003/december/tradoc_115007.pdf (accessed 7 June 2012) and Naron Cambodian economy Charting the course of a brighter future: A survey of progress, problems and prospects (2012) 528.

is a lacuna and an impediment to regional integration.³⁷³ Trade reforms through the establishment of a common market need to be complemented by appropriate macro-economic and social policies harmonises laws, good infrastructure and environmental policies. Trade on its own is not a panacea for development. Effective and adequate IP laws would play a vital role in facilitating trade through the reduction of transaction costs and by ensuring certainty as well as predictability.³⁷⁴ The Lagos Plan of Action of 1980 together with the Abuja Treaty of 1991 is the foundation of some of the objectives of the AU.

The AU was tailored to fight the challenges brought by globalisation.³⁷⁵ Regionalism was one of the ways through which the AU wanted to respond to the challenge of globalisation and underdevelopment.³⁷⁶ The adoption of the AU Constitutive Act (the Act)³⁷⁷ as well NEPAD³⁷⁸ Agreement demonstrates the clear desire for regional integration on the part of African leaders.

One of the objectives of the AU is to defend the sovereignty, territorial integrity and independence of Member States.³⁷⁹ Makinda and Okumu argue that the fact that the defence of State sovereignty is top priority³⁸⁰while the promotion of human rights and good governance feature near the bottom in Article 3(h) betrays the statist ambition of the AU.³⁸¹ African leaders belive that governments should have a major role in directing and controlling economic and social policies. It is, therefore, argued that in this regard the behaviour of leaders in the AU amounts to a ‘protection club’ in the sense that African leaders are interested in protecting other leaders even when it is clear that there is bad governance.³⁸²

373 Ndulo ‘The need for the harmonisation of Trade Laws in the Southern Africa Development Community (SADC)’ (1996) 60 Cornell Law Faculty Publication 196.

374 Wandrag (2011) 13 European Journal of Law Reform African 455.

375 Omotola ‘Globalisation, New Regionalism and the challenges of development in Africa’ (2010) Africana 109, hereafter Omotola (2010) Africana.

376 Omotola (2010) Africana 120.

377 The ‘Constitutive Act of the African Union’ available at

http://www.au.int/en/sites/default/files/Constitutive_Act_en_0.htm (accessed 24 October 2011). Art 3 of the Constitutive Act sets out the objectives of the AU which includes among others: to achieve greater unity and solidarity between the African countries and the peoples of Africa and to accelerate the political and socio-economic integration of the continent. These objectives underline the priorities of the Union which includes integration of the region.

378 Nyirebu ‘Appraising regional integration in Southern Africa’ (2004) 13 African Security Review 23.

379 Article 3(b) of the Constitutive Act. The pledge to defend sovereignty, territorial integrity and independence of Member States is reinforced in Article 4 which provides that the Union shall function in accordance with the principles of sovereignty, equality and interdependence among Member States and that there is a need to respect the borders that existed on achievement of independence.

380 Since it is contained in Article 3(b).

381 Makinda & Okumu The African Union: Challenges of globalisation, security and governance (2008) The African Union 20 & 36, hereafter Makinda & Okumu The African Union.

382 Makinda & Okumu The African Union 20 & 36.

This could explain the reluctance towards upholding the rule of law and promoting human rights on some African countries such as Zimbabwe.

The problem of sovereignty also impacts on trade mark protection, which is the focus of this thesis, it is notable that Africa can draw some lessons from other regions such as the European Union (EU).³⁸³ The EU found a way of circumventing the sovereignty stumbling block by ensuring that the Community Trade Mark (CTM) and the Trade Mark Regulation³⁸⁴do not replace any existing trade mark laws of the Member States.³⁸⁵ Member States retain their national trade mark laws.³⁸⁶ There is no doubt that relinquishing sovereignty to whatever extent demands political commitment³⁸⁷ from the African countries to enable them to accept the paradigm shift brought by regional integration.³⁸⁸ Political commitment is required because ceding sovereignty would imply losing power and being subjected to some control that originates outside the borders, for example from a regional organisation. It is unfortunately, not yet clear whether the African Countries (apart from the Member States of OAPI)³⁸⁹ are ready to surrender their sovereignty, even to regional and peer scrutiny.³⁹⁰

The AU Commission is mandated to advance the cause of integration and the socio-economic development of the continent.³⁹¹ Its role in this respect is reflected in the vision statement of the AU Commission’s 2004 Strategic Plan which is to ‘build an integrated Africa, a prosperous and peaceful Africa, driven by its own citizens and representing a dynamic force in the international arena’.³⁹² Regional integration should include the harmonisation of laws

383 See chapter 5 part 5.6.

384 Council Regulation 40/1994.

385 Radler ‘The ‘European Community Trade mark’: Is it worth the bother?’ (1997) 1 Marq. Intell. Prop. L. Rev 195.

386 See chapter 5 part 5.4.2.2.

387 EU’s regional integration developed slowly and gradually. African countries need a more workable and practical way to integrate the continent despite the existence of barriers to regional integration. See African Development Bank Group ‘Africa needs political will to achieve regional integration and economic transformation’ available at http://www.afdb.org/en/news-and-events/article/africa-needs-political-will-to-achieve-regional-integration-and-economic-transformation-9333/ (accessed 7 June 2012).

388 The other challenges relate to pluralism, diversity of culture, language and religion.

389 OAPI Member States renounce their sovereignty in that they have adopted a single trade mark law.

390 Oluwu ‘Regional integration, development and the African Union: Challenges, gaps and opportunities’

(2003) 13 Transnational Law & Contemporary Problems 212, hereafter Oluwu (2003) 13 Transnational Law & Contemporary Problems.

391 African Development Bank ‘Review of the AU/NEPAD African Action Plan: Final report’ available at http://www.nepad.org/system/files/AAP%20Rev%20-%20Final%20Report.pdf (accessed on 14 August 2011).

392 African Union Commission ‘Strategic Plan of the African Union Commission’ (2004) vol 1, 17 available at http://www.iss.co.za/af/regorg/unity_to_union/pdfs/au/stratplan.pdf (accessed 14 June 2011).

as this is an important aspect of regional integration.³⁹³ Harmonisation of IP laws, in particular, is important since it promotes trade.³⁹⁴ It also reduces differences in the laws giving rise to better laws. Laws play a vital role as trade and investment can prosper within a legal framework which is suited to the needs of modern-day business practices.³⁹⁵ AU Member States need to establish a solid legal framework which is aligned to modern trends within which the process of regional economic integration will take place. As explained in chapter 2, there is no direct mention is made regarding the role of law in the integration process although it can be inferred from the stated objectives of the AU^.396

I now examine NEPAD’s role in regional integration.

2.6.1 NEPAD’s role on regional integration

The revised AU/NEPAD Action Plan 2010-2015 is aimed at advancing regional integration in Africa.³⁹⁷ NEPAD is responsible for bridging Africa's infrastructural gap as there can be no meaningful development without trade, and there can be no trade without adequate and reliable infrastructure.³⁹⁸ Infrastructural development has the potential to advance Africa’s competitiveness in the global marketplace and will thus enhance African trade.³⁹⁹ By encouraging regional co-operation, playing a co-coordinating and a facilitation role,⁴⁰⁰ NEPAD aims to assist countries to trade, share resources and to build mutually beneficial

393 See also a detailed discussion on the importance of harmonising laws in chapter 2 part 2.7.

394 The benefit of harmonising laws outweighs the costs of losing heterogeneity: Stack International Patent Law: Cooperation, harmonisation and an institutional analysis of WIPO and the WTO (2011) 3.

395 Dlagnekova (2009) (15-1) Fundamina 2.

396 Wandrag (2011) 13 European Journal of Law Reform 454.

397 African Development Bank ‘Review of the AU/NEPAD African Action Plan: Final report’ available at http://www.nepad.org/system/files/AAP%20Rev%20-%20Final%20Report.pdf (accessed 14 August 2011).

398 Ndulu ‘Infrastructure, regional integration and growth in Sub-Saharan Africa: Dealing with the disadvantages of geography and sovereign fragmentation’ (2006) 15 Journal of African Economies 225-226, hereafter Ndulu (2006) 15 Journal of African Economies and African Development Bank Group (2012) ‘Africa needs political will to achieve regional integration and economic transformation’ available at

http://www.afdb.org/en/news-and-events/article/africa-needs-political-will-to-achieve-regional-integration-and-economic-transformation-9333/ (accessed 7 June 2012).

399 Ndulu (2006) 15 Journal of African Economies 225-226.

400 NEPAD ‘Regional Integration and infrastructure’ available at

http://www.nepad.org/regionalintegrationandinfrastructure accessed 5 /08/2011.

infrastructure, such as energy, communications, transport and water which are critical for industrial development in Africa.⁴⁰¹

Akokpari supports NEPAD’s approach which is ‘to strengthen regional formations and subsequently create an African common market as envisaged under the 1991 Abuja Treaty’.⁴⁰² NEPAD recognises regionalism, which includes regional integration, as a prerequisite for development and one of its key objectives, as evidence by its establishment of a Regional Integration Division.⁴⁰³ Infrastructural development has the potential to enhance regional integration. NEPAD’s role is thus crucial for the region since it will facilitate movement of goods and it will reduce the cost of doing business.

The next part of the chapter now examines legal integration as an aspect of regional integration. Regional integration does not only deal with economic integration; it may be viewed in light of political integration or social integration and legal integration. Legal integration of trademark laws is significant as it will facilitate increased trade and will reduce the cost of doing business.