The Social Dimension of Regional Integration in ECOWAS

One cannot ignore the fact that efforts at regulatory harmonisation in West Africa, as far as
employment is concerned, constitute a predominantly formalistic affair that would not
apply to the large number of workers in the region who work in the informal economy.
This paper does not, just as ECOWAS largely does not, consider the particular problems of
these workers. It is important to mention, however, that any portrait of the labour
landscape in ECOWAS is incomplete without considering the character of unregulated
work and how the social dimension of regional integration – from its development
objectives to employment promoting policies – might address this reality.
5.1 Legal Harmonisation
Legal reform in Africa has itself taken on a regional dimension as can be seen from
initiatives in the East African Community (EAC), the Southern African Development
Community (SADC) and in Francophone Africa. Shared employment policies and
standards are seen as benefiting neighbouring countries by enabling skilled workers,
entrepreneurial knowledge and professional services to move more fluidly across borders.
In addition, cross-border investment and foreign direct investment are facilitated by
harmonizing employment laws between countries since a more coherent regulatory
environment offers predictability and cost savings throughout the region. As mentioned
earlier, the ECOWAS Revised Treaty contemplates efforts to harmonize labour legislation
across all Member States. 47 Yet there is no mention of the extent or method of such
harmonisation (i.e. whether the Parties would draft a common code, agree on a set of
principles or standards which then become the responsibility of individual states to
incorporate into their domestic legal systems, or simply agree that citizens are entitled to
the same treatment as nationals under domestic laws). Presumably, sorting out these
considerations will be left to the work of the HR Commission which has competence for
labour law harmonisation, but to date no work has been undertaken to consider moving
towards regionally compatible employment regulation. Apart from stating legislative
harmonisation as an objective, the treaty does not set out guiding principles or common
minimum standards for parties to promote in devising an integrated legal regime. Yet this
belies the fact, as noted above, that there is a broad consensus on fundamental labour
standards across West Africa when one looks at the ratification of ILO Conventions by
individual ECOWAS Member States. 48
The notion of legal harmonisation as a means to deploy a common social policy in
ECOWAS puts some of the challenges facing West African integration inter sharper
contrast. Apart from the numerous languages spoken in the region, there is also a
multiplicity of legal traditions which reflect the colonial and pre-colonial histories of each
country. British common law and French civil law dominate the landscape, but one also
finds Portuguese civil law and a mingling of customary and traditional legal systems side
by side. 49 The intricacies involved in creating a uniform labour law across these diverse
traditions would be a daunting task, suggesting that the strategy of harmonisation identified
in the Revised Treaty is likely the more practical and politically feasible approach. But
first, it is important to point out some differences between harmonized as compared to
47 In traditional common law terms, labour law refers to the rules governing collective bargaining
whereas employment law refers to rules governing the relationship between an individual employee
and his/her employer. Here, however, I am using the terms generically since ECOWAS itself does
not always preserve the distinction in its discussion of legal harmonisation.
48 See Annex 3 below.
49
French civil law (8 countries), English common law (5 countries), Portuguese civil law (2
countries).
Working paper No. 49 17