Africa’s Single Market Needs Teeth – But a Court Alone Won’t Provide Them

By Danilo Desiderio

The proposition that Africa’s single market will collapse without a supranational court is simultaneously persuasive and fundamentally flawed. Persuasive, because it accurately diagnoses the enforcement deficit – not lack of vision – as the fatal weakness undermining African integration.

Flawed, because it mistakes judicial institutions for the political infrastructure they require to function.

Make no mistake: Africa suffers acutely from an implementation crisis. The continent overflows with treaties, protocols, and summit declarations, yet remains impoverished in actual compliance.

The African Continental Free Trade Area (AfCFTA), free movement commitments, and the Single African Air Transport Market all share an identical vulnerability: enforcement relies almost entirely on voluntary adherence by sovereign states. The demand for robust enforcement mechanisms is therefore entirely justified.

Where this argument overreaches is in presuming that a continental court, operating in isolation, can supply what Africa’s integration framework currently lacks.

Courts Cannot Conjure Markets Into Existence

Judicial bodies do not create markets. They enforce rules generated by political and administrative authority.

In Europe and the United States – the examples typically invoked – judicial supremacy evolved in tandem with powerful supranational or federal institutions capable of legislating, regulating, and administering policy across borders.

The European Court of Justice does not function in a vacuum: it operates within an ecosystem encompassing a supranational executive, a legislative process, a binding budget, and an acquis communautaire that member states had already recognized as superseding national law. Similarly, American federal courts derive their authority from a federal constitution that explicitly constrains state sovereignty.

Africa has not yet achieved this threshold. While the African Union and the AfCFTA Secretariat fulfill vital agenda-setting and coordination functions, they lack autonomous regulatory or executive powers.

Continental law does not enjoy primacy over national law, nor does political consensus exist to grant supranational institutions authority insulated from national vetoes. Proposing a court with sweeping powers to override domestic legislation in this context risks establishing an institution whose legal ambition dramatically exceeds its political and constitutional foundations.

This is not an indictment of judicialization itself. Rather, it is an argument for proper sequencing.

A supranational court proves most effective when it consolidates an integration process already underway – not when it attempts to substitute for absent governance capacity. Without concurrent reforms that delegate clearly defined powers to continental institutions (such as authority to establish technical standards, manage transport corridors, enforce trade facilitation rules, or coordinate digital and logistics systems), any court would struggle to secure compliance beyond issuing symbolic rulings.

The Risk of Premature Institutionalization

Africa already hosts multiple regional courts whose judgments receive inconsistent implementation, even where individual standing exists. Introducing a continental commercial court without credible enforcement mechanisms could exacerbate institutional fragmentation rather than resolve it, ultimately reinforcing skepticism about continental frameworks.

A more pragmatic pathway involves gradual, functional integration.

This approach could encompass strengthening the AfCFTA dispute settlement system, introducing preliminary ruling mechanisms to ensure uniform interpretation of AfCFTA provisions, extending access to these mechanisms – currently restricted to state parties – to private firms in carefully circumscribed areas, and progressively expanding continental institutional authority in specific sectors including customs administration, payment systems, and corridor governance. Judicial authority would then mature alongside administrative capacity and political commitment.

Sovereignty Remains the Central Question

Africa’s integration challenge transcends courage alone. The fundamental obstacle is the absence of agreed limits on sovereignty and explicit delegation of authority.

Until member states demonstrate willingness to transfer defined competencies to continental bodies – beginning with trade facilitation and cross-border transport regulation – no court, regardless of its design sophistication, can conjure a single market through judicial decree.

Enforceable law is indispensable to continental integration. But enforcement cannot circumvent politics, institutions, and constitutional realities.

Africa’s single market will ultimately require a supranational court – but only as one component of a broader, meticulously sequenced architecture of shared authority. Without that foundation, judicial ambition risks dramatically outpacing what the continent is presently willing and able to sustain.

The question facing African policymakers is not whether the continent needs stronger enforcement. It is whether they are prepared to construct the institutional scaffolding that makes judicial enforcement possible.

A court without supporting infrastructure is merely another aspirational declaration in a continent already drowning in them.

Danilo Desiderio serves as the CEO of Desiderio Consultants Ltd in Nairobi, Kenya, specializing in African customs, trade, and transport policies. He is a customs and trade expert at the World Bank and a senior associate to the Horn Economic and Social Policy Institute (HESPI).