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Law and Development - Bulletin 2
Centre for Applied Legal Research (CALR)
May 07, 2013

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Regional Economic Integration and Agric Development: The Case for Harmonizing Agricultural Laws in SADC

The Southern African Development Community (SADC) is one of the several Regional Economic Communities (RECs) that Zimbabwe is party to. While its initial establishment was premised on the need to achieve greater political cooperation amongst Southern African countries in the 1980s, its purpose and scope has since been expanded to include the need for enhanced economic integration between member countries. The SADC Treaty of 1992 laid the foundation for such economic integration. It, amongst other things, established a commitment to create a ‘Development Community’ in the region that is premised on the need to integrate Member States’ economies and markets to facilitate efficiencies in production, investment and trade with the ultimate objective of promoting development.

The SADC Treaty, its ancillary Protocols and related legal instruments (e.g. Charters, Pacts, Memoranda of Understanding, Declarations, and Regional Codes & Policies) constitute the ‘SADC legal architecture’ that is required to achieve such development-oriented economic integration. Article 21 of SADC Treaty stipulates the areas of cooperation and integration. These include the areas of: food security, land and agriculture; infrastructure and services; industry, trade, investment and finance; human resources development, science and technology; natural resources and environment; social welfare, information and culture; and politics, diplomacy, international relations, peace and security. The Treaty obligates Member States to conclude Protocols (i.e. Protocols to the Treaty) to facilitate cooperation in these areas, which should spell out the objectives and scope of, and institutional mechanisms for, co-operation and integration. The Protocols and related legal instruments are expected to facilitate coordination, rationalisation and harmonisation of macro-economic and sectoral policies and strategies, programmes and projects in the areas of co-operation.

Of all the areas of cooperation identified by the Treaty, it is not fortuitous that the area of food security, land and agriculture was identified as an important sector requiring integration as a matter of priority. This is because agriculture is a critical component of the region’s economy. According to SADC statistics, agriculture contributes between 4% and 27% of individual Member States’ Gross Domestic Product (GDP), and contributes to an average of 13% of total export earnings and about 66% of the value of intra-regional trade. Furthermore, it is estimated that about 70% of the region’s population depend on agriculture for food, income and employment. These combined factors reflect a close nexus between agricultural performance on one hand, and the region’s economic growth and stability, on the other. Notwithstanding this clear link, there is evidence that agricultural production has severely declined in the region. With low agricultural production levels, implications for the intended enhanced regional economic growth are apparent.

Although there are many factors that have led to subdued agricultural production levels, the lack of rationalized and harmonized agricultural policies and laws among Member States is often cited as a critical factor. This fact is recognized in the SADC Dar es Salaam Declaration on Agriculture and Food Security that was signed by SADC Heads of State in May 2004. The Declaration, amongst other things, acknowledges that inappropriate national agricultural policies and inadequate access by farmers to key agricultural inputs and markets are the main reasons for low agricultural production. As such, it commits Member

States to adopt a series of measures that are premised on strengthened sectoral cooperation through coherent harmonized agricultural policies, laws and programmes.

The need for coherent harmonized agricultural policies and laws is apparent. What is perhaps not so apparent is the process required to achieve a state of ‘harmonization’. By definition, ‘regional policy harmonization’ refers to the process of bringing together different national approaches in policies and laws into a unified strategy for purposes of inter alia, reducing regulatory duplication, overlaps and divergence between Member States. Although harmonization is often misconstrued to mean creating uniform national regulations; it actually permits for differences in the form of national regulations, but emphasizes on the similarity of net results of ‘commonly agreed principles’.

Therefore, harmonization is not about enacting uniform laws in each SADC country, but it is about developing a common legal culture that is consistent with commonly agreed principles. In the area of agriculture, this process should ordinarily be guided by commonly agreed principles embodied in a SADC ‘Protocol on Agriculture’. A ‘Protocol’, in SADC legal parlance, is a legally binding document committing Member States to the objectives and specific procedures stated within it. However, such a Protocol on Agriculture has not yet been developed. What exist instead are ‘soft law’ and ‘preliminary legal instruments’. These instruments are not necessarily legally binding, but have a politically persuasive effect. Examples of such instruments in the agriculture sector include amongst others: the SADC Dar es Salaam Declaration on Agriculture and Food Security (mentioned above); and the SADC Memorandum of Understanding (MoU) for the Implementation of the SADC Harmonised Seed Regulatory System.

The absence of a SADC Protocol on Agriculture that is legally binding is perhaps one of the reasons why agricultural policies and laws in the region remain fragmented. This is because ‘soft laws’ and ‘preliminary legal instruments’ that exist do not place a legal obligation on Member States to domesticate commonly agreed principles. Rather domestication of any commonly agreed principles contained in such instruments is largely voluntary and implemented at the pleasure of Member States. Under such circumstances where some Member States ‘may choose to domesticate’ and others ‘not to domesticate’; it becomes increasingly difficult to achieve the objectives of harmonization. This observation seems to have been acknowledged by SADC. In a SADC Report on ‘Country Summary Agricultural Policy Reviews’ published in 2011, the need to develop a Regional Agricultural Policy (RAP) was clearly emphasized.

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