a summary on cross border provision of legal services  and the uniformity or lack thereof within the ECOWAS region and how the system could evolve

—STUDENT ID 1793644

The purpose behind the creation of the Economic Community of West African States was said to be the facilitation of political and economic integration within the region. 45 years later, despite the presence of the Protocol relating to the Free Movement of Persons, Residence and Establishment, ‘full’ integration as seen in other similar treaty blocs like the EU has not been achieved. ECOWAS citizens have access to rights under Community law in national courts and the ability to move, live and work freely between Member States. However, little harmonization exists between the different service industries and further lack of progress can be seen specifically within legal occupations. This lack of progress can be tied to the relative newness of service industries as a number of countries within the bloc have some of the fastest growing but still developing economies. Other reasons may be that different countries within ECOWAS are unwilling to agree on what codes or practices should bind their professionals despite Member States having obligations towards promoting integration programs. Consequently, some argue for the region to follow established unions like the EU, however I disagree with this notion. When considering the aim of ECOWAS, Pan African-ism with an emphasis of self governance was central to its conception. The system is not perfect, but modelling processes after EU principles such as Community law supremacy does not consider the regions context. Differences such as the lack of a centralized currency demonstrate that the region requires a tailored approach. In this post, I will analyse the reasons for the lack of coordination of the different Bar Authorities within ECOWAS then suggest that the creation of a regional bar authority could streamline cross border movement of legal students and professionals, opening up legal education therefore encouraging legal integration.

 Law is country specific. Each country has its own regulations surrounding legal professions. Therefore, there is no generalized code of practice of which legal professionals within the ECOWAS region must adhere to. Starkly different to the EU where Directives like 98/5/EC create obligations for lawyers in the EU to act under the same rules of professional conduct as local professionals once practicing within their territory. Within ECOWAS, practices of the profession can create ethics which lawyers are more or less bound by. For example, a Nigerian lawyer will be barred from working within Ghana if found to have been charged in his home State with a crime. Legal education in the region is also country specific, making it rare that law students from other member States will attempt to qualify as a lawyer in another State, further explaining the lack of rules that would guide this process. Countries like Ghana experience large applications from foreign students to pursue bachelors or Masters degrees within Ghanaian universities. Even then, there is only one law school in the country which receives thousands of applications annually. Therefore, it would not be strange to find a bias towards local applications or foreign students dissuaded from pursuing a legal education outside of their home state.

Qualified lawyers are also unlikely to leave their country to pursue a career in another Member State. This is because legal education is often a difficult subject to pursue in West Africa and once fully qualified in your own country, lawyers may find it difficult to leave their home states to be subjected to another round of examinations. Places like Nigeria with numerous instances of falsification of documents and stolen identity, require all practicing lawyers to become verified as members of  the Bar Association. As such, foreign qualified lawyers wishing to practice within the country must then provide copies or originals of their bar certificates and proof of membership fees paid to the Nigerian Bar Association showcasing their adherence to national rules of the profession. The NBA also has a database on the status of practicing lawyers within its territory, a great idea which ECOWAS could pursue to keep track of professionals within the occupation as well as provide a second layer of verification. In these situations, the idea of a centralized bar authority that creates policies to facilitate cross border provision of legal services is ideal. Like the CCBE in the EU, such a potential body can be responsible for a creation of a code of conduct for legal professionals within the ECOWAS region. In fact, facing the regions specific grapple with high levels of bribery and corruption, a centralized code of conduct, coordination between members of the legal profession will streamline the status of lawyers within the region as well as evolving the profession by creating standardization bettering the profession.  

Another reason for poor cross border integration is in some Member States like Ghana ,Community law is rarely taught as a source of law within the national legal curriculum or referred to in national courts as having general supremacy over national law. Courts are expected to give effect to any rights or obligations found in the ECOWAS treaty making decisions with this obligation in mind. Though national courts may reference the treaty, in cases like Republic v. High Court (Commercial Division, Accra), they clarify that despite having signed the ECOWAS treaty, not all Community law is automatically incorporated into Ghanaian law.  Demonstrating that countries may be unwilling to treat Community Law as a higher source of law with which their legal professionals must familiarize themselves with. In the EU, the ECJ plays a vital role in ensuring EU law is interpreted and applied correctly through all Member States and their institutions. This approach encompasses a principle of Community law supremacy which can be said to be necessary to uphold the values of free movement of people,goods and services within the community. Consequently, it is difficult to argue for Community law supremacy within the region where the tools to create expertise on the subject are limited by national treatment of Community law or even a general lack of reference to it as a valid source of law from which individuals may claim rights. Proving vastly different to the EU, where the principle of direct effect means that national courts are always burdened with the possibility of the direct effect of Community law. Though the national courts could be a prime site for further legal integration as demonstrated by the EU principle of direct applicability, ECOWAS Court decisions do not have immediate applicability in national courts.This could limit economic integration if investors hesitate to invest in other Member state markets fearing that with a suit for damages, a decision in their favour may not be recognised within the Host State. However, direct applicability of Community law is not the only way Member States can harmonise legal service provision. The creation of another Protocol or Convention under ECOWAS with the purpose of clarifying and establishing cross border legal procedural rules can translate this need to streamline the profession whilst still allowing states to maintain a say in the way cross border activity occurs 

To conclude, there are several reasons for a lack of a harmonisation within the ECOWAS region. These reasons reveal the need for a contextualized approach to integration .Firstly, in order to combat the issues with cross border legal education , ECOWAS must decide to open up legal education by the creation of exchange schemes or tuition fee incentives for law students to pursue the best general legal education within the region regardless of the nationality of the law school in order to promote competition and higher standards within the profession. This would involve the expansion of national legal curriculum to cover Community law as a non optional module. Then concerning the lack of codified standards, Bar associations and Law societies may wish  to begin negotiations on the type of conduct expected from a practicing lawyer within the region facilitating cross border communication within the legal profession. As for establishing supremacy of Community law, courts of Member states who are signatories of the treaty are already obligated to make decisions in light of the relevant community law. Any further emphasis placed on the supremacy of Community law may be harder to succeed within the region due to tensions between civil law and common law jurisdictions, fears of limiting Member States sovereignty when it comes to deciding matters in their jurisdictions, the lack of centralised currency as incentive or the potential threat of sanctions if a state rightfully chooses to dis apply Community law. In all, those within the legal professions must be the ones to lead change in conjunction with Member State governments to push legal integration further by creating a centralised bar society or authority with determined rules of procedure to open up legal education and promote cross border legal service provisions.