THE APPLICABILITY OF OHADA TREATY IN CAMEROON: THE WAY FORWARD
By Jean Alain Penda
University of Buea , Cameroon
jeanalain@usa.com
THE OHADA TREATY
OHADA is the French acronym for “Organisation pour l'Harmonisation en Afrique du Droit des Affaires” literally translated in English as the “Organization for the Harmonisation of Business Law in Africa” (OHBLA). OHADA is an international organization created by a treaty signed in Port Louis (Mauritius) on 17th October 1993 by fourteen African States.
The idea of this treaty came about by Ministers of Justice of francophone legislation in several French-speaking African states in May 1963. But it is only 25 years later that it resurfaced and the treaty finally entered into force on 19th September 1995 in the countries who ratified it.
OHADA BUSINESS LAW UNIFORM ACTS AND ITS OBJECTIVES
Unlike other regional integration arrangements in Africa, OHADA objectives in its members states is simple: to harmonize their business laws such that they have a single, modern legal framework for their economic activities and to promote arbitration as a means of settling contractual disputes. The rationale for this is to improve legal security, which in turn would help to promote trade and investment.
In pursuance of its aims, OHADA issues unified legislations in the form of Uniform Acts on particular areas of law. These Uniform Acts resolve the problem of uncertainty and outdated national legislations, which made investment in these countries complicated at best and at worst, almost impossible.
Suffice to note that all the Uniform Acts of OHADA are directly applicable in all member states (Article 53 of the Treaty) and supersede the previous national legislations on the same area of law in each country. Today, there are eight Business Law Uniform Acts in force in the member states.
1)General Commercial Law entered into force on 1 January 1998.
2)Company Law; January 1 1998.
3)Security law; January 1st 1998
4)Debt recovery and enforcement law: July 10, 1998.
5)Bankruptcy law: January 1, 1999
6)Arbitration law; June 11, 1999
7)Accounting law; January 1, 2002
8)Law regulating contract for the carriage of goods by road; January 1, 2004
It follows therefore that Business Law Uniform Acts are actually the laws applicable in Cameroon and its application is successful in French Cameroon like any other francophone signatory state. However, this is not the situation in Anglophone Cameroon and the rest of west English speaking African countries.
IMPLEMENTATION OF BUSINESS UNIFORM ACTS IN WEST AFRICAN ENGLISH COUNTRIES: CAMEROON
As we all know, OHADA is an organization whose sole official language is French. This is regrettable. However, it was the only way to proceed when the OHADA process was launched 13 years ago, creating from the start a bilingual organization would have been too costly. It was simply not feasible. This situation is very unfortunate for Cameroon, especially Anglophone Cameroon and it has to change. The best way to make things evolve is to adopt a positive and constructive behaviour towards OHADA, just the kind of behaviour the University of Buea, has adopted, by teaching OHADA and organizing seminars.
We all have to do all our best to persuade everyone (students, lawyers, business corporations, civil societies, politicians, governments, heads of states) that the OHADA business law unification process is a major progress for Africa and constitutes an extremely promising development for the future. We must persuade people that the next stage now is to turn OHADA into a truly bilingual business legal system, adapting itself to be compatible with common law systems. Concessions will have to be made on both sides: civil law and common law lawyers, but we all know that as the saying goes, where there is a will, there is a way. Even though OHADA is not yet considered as a cataclysm in Anglophone Cameroon,, it is already there and it has come to stay.
This is the reason why we must all work hard to promote OHADA in Anglophone Cameroon and in Anglophone countries of West Africa; Ghana and Nigeria so that a political decision is taken by the Heads of States in the coming years. The sooner, the better, to make OHADA a truly bilingual unified system of business laws, common to Anglophone and Francophone west and Central Africa.
This objective is in the general interest and will serve the public good. It will enhance unity stability, prosperity and peace. It is achievable and we will all work hard towards that superior goal.
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