Abstract

This study aims to understand how international legal harmonisation impacts legal certainty in countries where most of the economy is informal by examining how OHADA laws have been applied in Cameroon. It describes how the OHADA laws were developed internationally and applied locally and how the actors in two spheres collaborated with each other.

The application of OHADA law in Cameroon showed that the international and regional partners’ financial and organisational support is crucial for allowing motivated local legal actors to organize and collaborate to get the majority of the legal profession to join them in their reform efforts.

The first lawyers to join the reform are more likely motivated by ideological reasons whereas those joining in later have potentially more material reasons. Hence for the OHADA legal harmonisation to have a wider impact on legal certainty, economic actors in OHADA member states need to have access to a more reliable justice system corresponding to certain technical standards.

CHAPTER ONE

GENERAL INTRODUCTION

OHADA treaty is made up today of 16 African states. Initially fourteen African countries signed the treaty with two countries (Comoros and Guinea) subsequently adhering to the treaty and a third (The Democratic Republic of Congo) due to adhere shortly. The treaty is open to all states whether or not members of the organisation of African countries.

OHADA is defined as Organisation for the Harmonisation of Business Laws in Africa . Organisation because it is formed by many states. Harmonisation relates to a process whereby national laws are totally ignored, but instead community law becomes integrated within the framework of national laws.

By community agreement, some degree of uniformity is achieved with respect to transactions that the community laws are to govern. Harmonisation can be obtained by having a new set of laws replace the countries existing law, but it can also result from non-identical national laws that achieve substantially the same outcomes.

1.1 Background To The Study

OHADA is a system of business laws and implementing institutions adopted by sixteen west and central nations. OHADA  is a French acronym for “Organisation pour l’Harmonisationen Afrique du Droit des Affaires” which is translated in English as Organisation for the Harmonisation of Business laws in Africa. It was created in October 17, 1993 in Port Louis, Mauritius.

The original parties were Benin, Burkina Faso, Central African Republic, Chad, Cameroon, Comoros, Congo, Ivory Coast, Equatorial Guinea, Gabon, Mali, Niger, and Togo; Guinea and Guinea Bissau joined thereafter, and the Democratic Republic of Congo joined in September 1, 2012.

The principal purpose of the treaty was to provide the States Parties with a western style set of business laws making them more attractive to foreign investors from the developed world. Since OHADA’s jurisdiction is limited to business matters the nine statutes it constitutes, called Uniform Acts exclusively on business matters. These Uniform Acts govern the formation, operation and dissolution of business entities and the formation, performance and enforcement of business transactions.

In addition OHADA creates some principal supranational institutions. These are the Council of Ministers, the CCJA, the Permanent Secretariat, and the Regional School to training judges and lawyers.

1.2 Statement Of The Problem

Commonly, it is understood that economic development in Africa is hindered by some factors, one of them being the lack of appropriate legal system. This lack of proper laws and judicial functioning makes the contracts harder to enforce leading to less confidence and reliability in society, those being the preconditions for investment and economic development. OHADA addresses this problem.

By enacting contemporary uniform regional business laws developed and sanctioned, it strives to foster economic development. That is why the effectiveness or impact of the OHADA system cannot be neglected. However there is a question whether a change through law can be successful.

That is because of the low degree of rule of law and the weak state institutions. But studying the impact of the OHADA will help to understand the advantages and difficulties or regional legal reforms concerning business law in Africa, and how internationally developed law becomes effective in countries with less formalised legal system.

1.3 Objectives Of The Study

This study has general and specific objectives

1.3.1 General Objective

The principal objective in this study is to examine the impact of the OHADA system in Cameroon.

1.3.2 Specific objectives

In order to demonstrate the thesis above, the study will be submitted to some specific objectives.

1. Explain how OHADA laws have impacted legal certainty in its member states. Legal certainty requires that laws are accessible, operable, legible, intelligible and up to date.
2. Analyse the attraction of investment by legal certainty and the OHADA laws encouragement of economic development in Cameroon.
3. Define and analyse the laws governing OHADA system in order to make it applicable by organizations.
4. Mitigate how are those laws effective in Cameroon regarding treaties, international institutions and regional organisations.
5. Recommend about the expectations and prospects of the OHADA system.

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