Shaping a Continental Future Through Legal Reform and Institutional Unity
In a timely and insightful panel discussion moderated by Ms. Kananu Mutea, MCIArb, top legal experts from across Africa gathered to explore the urgent need to modernize arbitral laws on the continent. The session brought together prominent voices in the legal space: Hon. CS Mercy Wanjau, Secretary to the Cabinet; Hon. Thabo Chakaka, Attorney General of Malawi; Mr. John Ohaga, SC, C.Arb, FCIArb; and Ms. Sheila Mammet, HSC, State Counsel in the Office of the Attorney General of Kenya.
Together, they addressed the key legal, cultural, and institutional barriers to progress and offered a vision for a more harmonized, globally respected African arbitration landscape.
The Imperative to Modernize
Ms. Kananu Mutea set the tone by emphasizing that modernizing arbitral laws is not just necessary it is strategic. A modern, internationally aligned arbitration framework is critical for boosting both foreign and domestic confidence in African jurisdictions. She noted that while Rwanda has made significant strides, only 16 of 54 African countries have adopted the UNCITRAL Model Law highlighting a substantial gap that needs urgent attention.
Breaking Through the Barrier of Inertia
According to Mr. John Ohaga, the biggest hurdle in arbitral reform is inertia a reluctance to disrupt the status quo. He argued that while change is difficult, it’s increasingly inevitable as education and awareness of ADR mechanisms grow across Africa. Kenya, for instance, has reorganized its ADR framework, reducing the centrality of litigation and showcasing how reform can reorient legal systems toward more efficient dispute resolution.
Ohaga urged the legal community to re-engineer arbitration methods to align with global best practices and emphasized that perception by the international community is shaped by local action.
Addressing Legal Gaps and Regulatory Uncertainty
Hon. Thabo Chakaka outlined the structural and legislative challenges faced by African states, including:
- A lack of clear judicial guidelines on when courts can intervene in arbitral proceedings
- The slow adoption of the UNCITRAL Model Law
- Absence of uniform standards for security for costs, third-party funding, ethics, and conflict of interest
- Limited transparency and enforcement frameworks
He called for greater uniformity in arbitral legislation across Africa to enhance legal predictability and investor confidence.
Cultural, Structural, and Economic Realities
Ms. Sheila Mammet provided a candid assessment of the unique challenges African states face in balancing international arbitration norms with domestic realities:
- Cultural barriers—such as bureaucratic delays and procurement corruption—make it hard for governments to meet international arbitration timelines.
- Power imbalances in infrastructure-related disputes often disadvantage African states in seat selection and terms of engagement.
- High enforcement costs, which can be financially burdensome for many African governments.
Despite these difficulties, Mammet acknowledged progress and encouraged more context-sensitive arbitration reform that doesn’t simply mimic but rather adapts international standards.
Institutional Role in Arbitration Reform
In addressing the question of institutional involvement, Mr. Ohaga emphasized that Africa’s fragmentation into many competing arbitration centres has diluted its global impact. He proposed a unified regional approach, perhaps structured around linguistic or legal traditions such as Anglophone, Francophone, or Civil/Common Law jurisdictions.
He highlighted the judiciary’s crucial role, referencing the landmark Nyutu Agrovet case, and stressed the need for a responsive, reform-minded judicial system to support arbitration.
The Promise of the AfCFTA Investment Protocol
A key institutional development discussed was the African Continental Free Trade Area (AfCFTA) Investment Protocol, which Ms. Mammet described as a transformative opportunity for Africa. She shared a compelling case involving a Kenyan investor in South Sudan, where the absence of an arbitration clause led to a long, national court battle. With a BIT or AfCFTA provisions in place, this could have been resolved efficiently through arbitration.
The AfCFTA Investment Protocol, which includes a dedicated dispute settlement chapter, seeks to:
- Provide a continent-wide framework for investor protection
- Replace fragmented bilateral treaties
- Enhance institutional capacity, judicial utilization, and rule of law
- Encourage provisional measures in domestic courts, thereby reinforcing international law in Africa
While the role of arbitral institutions under the protocol remains unsettled, its potential is clear.
Closing Reflections and Recommendations
In their closing remarks, each panelist offered concrete proposals for action:
- CS Mercy Wanjau noted that Africa stands at a critical pivot point and must learn from mature arbitral institutions. She urged pan-African collaboration and positioning African centres as go-to venues for resource-related disputes.
- Hon. Chakaka called for specialized courts with time-bound procedures, domesticating international standards while Africanizing them to reflect local realities.
- Ms. Mammet clarified the scope of the AfCFTA’s dispute resolution annex, focusing on state-to-state trade disputes handled by the Dispute Settlement Board.
- Mr. Ohaga concluded on a hopeful note, encouraging stakeholders to engage with ongoing legislative reforms, critique upcoming arbitration bills, and help shape a truly African arbitration framework.
Conclusion: Time to Move from Dialogue to Action
The panel made it abundantly clear: Africa is not starting from scratch—it is progressing, but the journey must accelerate. Modern arbitral frameworks, effective institutions, and integrated continental systems are not just aspirational—they are achievable.
This is a defining moment for Africa to reimagine its arbitration landscape, build continental consensus, and promote fair, fast, and enforceable dispute resolution across all sectors.
