The Emergence Of A Community Criminal Law In The O.H.A.D.A. Space

The controversial legal framework for business in Africa has been neglected for a long time.After independence,many countries continued to apply texts inherited from the colonial period,notably business law.This legal framework was outdated,unsuited to the socioeconomic context,and even anachronistic.That was visible in the outdated diversity of national texts and is a source of uncertainty and insecurity.The consequences of this uncertainty are reflected in deficiencies in the creation of commercial enterprises,socioeconomic development,the sharp drop-in investment rate,and investors’ mistrust.As a result,the Organization for Harmonization in Africa of Business Law(O.H.A.D.A.)has not only been created.However,it has also established legal standards and institutions in the regional integration policy.Harmonize and modernize the field of business in African countries to facilitate trade and investment and ensure legal and judicial security.That is due to the establishment of an integration policy.This integration policy,in its conceptualization,has set up a legal and institutional framework that is both dynamic and attractive to create a favorable climate for cross-border trade.This positive progress is undeniable in the legal framework established in favor of business and within the States that compose it.On the other hand,this significant rating implies that we constantly evaluate the functioning and evolution of economic development worldwide.However,from an operational point of view,criminal law remains one of the areas without which one cannot speak of the notorious efficiency of legal and judicial security of commercial activities,given the growth rate of the crime business,particularly in Africa.Criminal law aims to repress behaviors destabilizing,unbalancing,and undermining societal life.Because of its mixed character,it intervenes in a sovereign country’s public and private domains.That means that business law is not exempt from the criminal policy.The States’ hesitation regarding criminal law lies in articulating Community policy and criminal law of the Member States.Indeed,to the extent that States would show a reluctance,the criminal law is eminently regalian.There is also the undeniable existence of the development of particularism or social,economic,and legal heterogeneity.Thus,the reliance on criminal law presupposes that it is an integral part of the sovereignty of each independent State with its specificity.This specificity results from a heterogeneous development in that it would mean that the O.H.A.D.A.space is composed of States that are not at the same level of development.With this in mind,to mitigate this discrepancy,O.H.A.D.A.has integrated into its constitutive treaty,in article five,paragraph two,the establishment of a penal policy resulting from a compromise: "The uniform acts may include penal provisions.The Contracting States undertake to determine the criminal sanctions incurred.The advantages which militate in favor of the emergence of a joint and harmonized criminal law within the regional organization are of two kinds.First,it is a question of strengthening and perpetuating economic and commercial liberalism,which tends to establish a relationship between the criminal norms derived from the Common Law and the Roman-Germanic system and the protection of persons guaranteed by the judicial authority.Secondly,there is a need to effectively clean up the legal and economic environment of standardized business law within O.H.A.D.A.That will undoubtedly involve consolidating the legal framework for economic and commercial activities in the organization’s member states while reducing the risk,and even the distrust,of investors in Africa,particularly in the seventeen O.H.A.D.A.states.In any case,there is unanimity on the fact that extra-criminal sanctions as a means of legal security: in particular,civil sanctions(nullity,termination,payment of damages and interest,arbitration,mediation...),are insufficient.Hence the advantageous recourse to criminal law to fill the gaps detected in the legal and institutional framework contrasts the effectiveness of legal security.Hence the complementary character between the national criminal laws and the regional organization.In short,it translates into an influence between the two standards while guaranteeing and strengthening the security device so much sought by O.H.A.D.A.The expression of this influence shows to the extent of desire the advantage of erecting a single or harmonized criminal law of affairs at a regional level because the economic actors,States,and the organization of regional integration will be at the same level of information as the uniform acts.Implementing O.H.A.D.A.’s criminal law policy has shown weaknesses that should be mentioned.Reading article five,paragraph two provision,it is clear that O.H.A.D.A.does not fully integrate criminal law into its harmonization policy.The incriminations have been incorporated in certain uniform acts,and each country must determine the sanctions.States’ reluctance to protect their sovereignty and the reinforcement of their legal,cultural,economic,and social particularism listed above constitute the first difficulty that O.H.A.D.A.has encountered.Moreover,this has brought to specific light problems,no less important.Regarding incriminations,it is regrettable that from its creation to today,O.H.A.D.A.has not legislated on a series of offenses,including those relating to cybercrime and the stock market.However,these two offenses are topical and detrimental to the economic development of enterprises and other economic actors.Concerning the determination and application of criminal sanctions,only nine out of seventeen countries conform to the rules established by O.H.A.D.A.These penalties have been enacted by these countries either by adopting new laws.These provisions would seem effective in these countries due to their entry into force.However,the countries that have legislated on criminal sanctions demonstrate that the system of referral of sanctions promotes inequality in the community or regional sphere.Sanctions differ from one country to another.Hence the risk of disparity in sanctions and the emergence of criminal havens.There is an urgent,faced with these difficulties,need for reform at the level of the community entity.By respecting the logic of countries that conform with O.H.A.D.A.’s penal policy,countries that have not legislated on penal sanctions can use the techniques of reproduction or integration by reference.However,given the difficulties identified,an in-depth reform is more than necessary on both the institutional and material levels.The experience of some sub-regional and regional organizations should be considered to achieve that.As regards the institutional framework,the much sought-after democratic legitimacy should be strengthened by creating a legislative body.Extending the Common Court of Justice and Arbitration’s competencies is a priority to harmonize or standardize criminal jurisprudence.This opportunity could also be used to revisit the other institutions of the organization by revitalizing their functions to consider the penal aspect.Concerning the material aspect,reforms must be made to revitalize O.H.A.D.A.criminal law in primary law.The revitalization of the judicial system must be by creating a pole of judicial cooperation through judicial investigations,extradition of the guilty,and recognition of judicial decisions within the community.Here is presented,globally,the object of the present study.