Navigating International Litigation Hurdles in Africa

African economies has witnessed growth rate of over 10% in the last two years according to the Organization of Economic Cooperation and Development (OECD). A combination of several auspicious interplaying factors now make African markets a significant player in global markets, deservingly earning the accolade of emerging economies.
Africa has one of the largest consumer market on the globe with over 52 separate economies, an aggregate population of nearly over a billion, cheaper labour than Asia, abundance of natural resources, a rich cultural heritage, a beneficiary of increasing international commodity prices especially high oil prices, increased sovereign investments, macroeconomic stability, a new wave of democratization and political stability, stricter internal regulations in compliance to global standards, widespread banking reforms, growth in infrastructure development from international development organizations and other expanding economies such as China and India, expanding telecommunications and energy markets etc.
Naturally, the growth of global business investments in African markets equates to bountiful harvest of larger profits for international multinationals corporations. Deeper involvement of multinationals in African economies also translates to additional legal disputes and court litigations in Africa. The scope of expected legal disputes will cover licensing, regulation and compliance issues, trade and commerce laws and contracts, manufacturing and consumer matters, natural resources, supply contracts, employment matters, immigration, personal injury, property and land matters, etc. The expected litigating parties may be local litigants, local agencies and authorities, consumers of commercial products, foreign litigants, foreign importers, international corporations, foreign Government agencies, service providers, consultants etc.
African countries assume original venues of court litigation involving local and foreign litigants under private international law where the subject matter of the suit occurred in the designated African country or the subject matter of the litigation is located or either party is resident or based in the designated African country or the parties explicitly agreed on the venue of litigation or justice will be better dispensed in the designated African jurisdiction. Africa will also be the venue of cross border litigations where a part of the transaction occurred in its territory.
Under public International laws, there are higher certianties of African courts being the primary venues of international litigation matters as the particular contentious international convention or treaty would had been locally ratified, hence enforceable by local courts and authorities. The specifics of such litigations will cover custom and excise based litigations, maritime and admiralty matters, taxation, natural resources licencing and operations, production and consumption matters etc.
The objective of this article is to address the expected problems facing local lawyers, international lawyers and international Corporations involved in international litigations in Africa. Any local counsel, local litigant, foreign counsel, foreign litigant, party, General Counsel to an International multinational Corporation, local and foreign Government agency or third party may become a party to litigation in Africa at any time of any transaction where the subject matter or either of the parties are based in Africa.
1. Multiple Legal and Court Systems.
Due to the peculiar evolution and formation of almost all African countries in the last 100 years, several African countries concurrently operate multiple or dual legal systems and court structures, a rare distinction from other continents. A good understanding of the court administration system of a country can be very valuable in any litigation. Usually English law is the foundation of most legal systems in Anglophone African countries as French common laws and the Napoleonic Code is for Francophone countries. Besides these foundations, almost all African legal systems recognize and operate alternative legal systems comprised of customary laws with their court structures and procedures. Islamic law is also another independent legal system operating in several African countries with its separate Sharia court structures and procedures. In countries like Ghana, Nigeria and South Africa, these three legal systems operate concurrently. In certain countries such as Egypt and Cameroon, English, French, Islamic and customary laws operate concurrently.
2. Autonomous and Hierachal Court Structures.
Court structures and procedures differ from country to country and are graded in hierarchal structures with appeals lying from lower courts to higher courts. In South Africa, the Constitutional court is the final court in all constitutional matters while the Supreme Court of Appeal is the final court of decision on all other appellate matters. Following these two courts are the High Courts with 13 divisions, Magistrate Courts, Circuit courts, small claims courts, Divorce courts, Land Courts, Labour courts, Tax Courts and finally Community courts. A similar court system operates in Egypt with the Supreme Constitutional court being the highest court in the country. This is followed by the Court of Appeal which hears appeals from Courts of 1st Degree on civil, commercial and personal matters. Next are the courts of 1st Degree which are equivalent to High Courts and hears all cases. Next are summary courts, administrative courts and finally the extensive Egyptian Sharia courts.
In Kenya, the Court of Appeal is the highest court in the land followed by the High Court and finally Khadi courts. In Ghana, the highest court is the Supreme Court followed by Court of Appeal, then High Courts, Magistrate courts, Circuit courts and public Tribunals. In Nigeria, a similar court structure is in operation. The Supreme Court is the highest court in the country, followed by the Court of Appeal. Next are Federal High Courts which exist at par with High Courts to hear federal matters such as taxation, currency, national security, customs and excise, maritime, then we have High Courts, Magistrate Courts, Customary Courts, and Sharia Courts.
3. Evaluating Litigation Risks.
A principal determinant factor in African litigations is political risk which has a direct influence on litigation risk. The continent is politically volatile indirectly making litigation risks high. Political risks here will include sudden changes of government, internal rebellion, civil strife or riots, strikes, unstable Government policies, unstable economies, etc. Several of these factors are responsible for frustration of contracts, revocation of licences, force majeure in contracts, non-compliance to regulatory laws, breach of trade and commerce terms, etc. Foreign litigants will need to thoroughly access the political and litigation risk factors of any given African country before embarking on litigation in Africa.
4. Filing of Court Process and Counsel Representation.
Most jurisdictions provide for court repre sentations by counsels who have studied that particular legal system and have been called to practice law in the Bar of the designated country. However, certain exceptional jurisdictions provide for express recognition of foreign counsels to practice law in their jurisdiction. Other jurisdictions allow for registration of foreign counsels to handle particular cases. However, dual or multiple practicing licences are allowed in almost all countries. Foreign Counsels do need to have comprehensive grasp of the legal issues in every case. They will also need to work with established and experienced African lawyers in the designated jurisdiction where the litigation matter is being heard. Fortunately, several experienced litigation lawyers abound to handle difficult litigation matters.
In addition, certain advanced legal networks like Martindale Hubbell contain synopsis to a few selected legal systems in Africa such as Nigeria and South Africa. The ultimate solution is to conduct preliminary legal research from lawyers in your country, large and reputable international legal directories, established lawyers in the designated country of litigation, the internet etc. But foreign litigants must recognize that selection of local counsels will be based on experience and on utmost trust as malpractice safety nets such professional indemnity and malpractice law suits are very rare on the continent.
5. Knowledge of the African Terrain.
In most African countries, litigants must adapt to the unwritten rules of litigation which differ from country to country. Understanding local customs and practices, geographical details and knowledge of the peculiar legal systems are key factors that can make or mar any litigation case in Africa. English may not be the official language of all courts and commercial transactions. Portugese is widely spoken in Congo, Angola and Cape Verde. In Francophone countries such as Guinea, Togo, Ivory Coast, French is the official language of court and commercial transactions. However in almost all courts of superior records in Anglophone countries such as Kenya, Nigeria, Ghana, English is the official recognized language of courts and commercial transactions.
Besides language, territorial location of courts can have an influence on court matters. Hence it is necessary for litigants to understand that local courts are divided into divisions based on territory or specialty of law. Courts located in disputed areas will naturally have higher litigation risks. Religion and tribal classifications are other determinant influences on territorial locations of courts. Islamic or Sharia law is prominent in North Africa. In Sub Saharan countries operating dual English and Sharia legal systems, jurisdiction of Sharia courts are limited to private Sharia law over individuals while criminal Sharia laws are included in official penal codes such as Sudan and Nigeria. However, international or cross border litigation matters are covered by regular courts such as High Courts and Federal High Courts.
6. Pristine Legal Systems.
The auspicious paradigms and factors that accelerated bold legal developments in advanced countries are still pristine in several African legal systems. Compared to the United States and United Kingdom, most legal systems in Africa are at least 30 years behind in comparative legal development as 19th and 20th century English common law are the standard benchmark in a cross spectrum of law. Personal injury law is one area which is still basically the old English law of Tort. Family law of marriage and divorce are also still very natural based on local customs as compared to advanced legal systems. Courts orders such as alimony or palimony are novel concepts. Another area of law is intellectual property, which is behind in enforcement due to non ratification of several International treaties, poor enforcements and weak financial markets. Consumer protection is another area of law where local litigants consider these types of legal reliefs as trivial. Class actions are also unpopular due to their complex natures. As earlier mentioned, professional malpractice and professional indemnity suits are unpopular in most African legal systems.
Under public international law, the situation is far better. International Human right charters have a high compliance rate but there are still several conventions and charters that are yet to be ratified in Africa including significant international treaties and conventions especially in the maritime and IP law sectors.
7. Electronic Evidence and discovery.
Unlike developed countries, electronic evidence and discovery of documents are novel legal terms in African courts that are just being understood, but not yet in practice in most jurisdictions. The primary mode of proving facts in courts are still documentary or oral depostions of witnesses as most Evidence Acts do not recognize internet documents as proof of any fact in courts. Counsel having court trials will have to rely on physical attachment of documentary exhibits or cross examination of witnesses as the surest bets of tendering evidence before a court. Courts and Judges do not have websites as in developed legal systems. Several law firms and lawyers still do not have functional websites or email addresses. Those who use emails are accustomed to free email websites like yahoo. Paid email sites such as AOL are still very rare.
Service of court processes on litigants is usually by personal (physical) means or substituted service which is by placing of court process at the last known address of the litigant or through Newspaper publications. There are no provisions for electronic service of court process through emails or social networking sites such as Facebook or Twitters.
8. Proficiency standards of Counsels.
Due to several constraints facing local counsels, they tend to be Jacks of all trades in law leaving little room for constant improvement and specialization. These constraints include poor support from local governments especially financial and technical support, poor knowledge of comparative legal systems, lack of continuing legal education, etc. Furthermore, all ancillary court litigation services such as independent court reporting, video editing are usually bore by the local Counsel. The first cross border litigation the writer of this article under took revealed this much. However, highly established law firms with very experienced lawyers or experienced lawyers of over 15 years post call experience do have the requisite knowledge and technical know how to handle all types of international or cross border litigation matters in their designated country.
9. Duration of Litigation.
While non contentious litigation matters can be settled in weeks, actual contentious litigations can as long as 2 to five years in most African legal systems. This is the factual position. Any foreign litigant or law firm preparing for international or cross border litigation must be prepared for this time duration in terms of expenses and patience. Delay of court matters can be attributed to several factors such as unnecessary court adjournments, distabilizing societal factors including strikes and force majueres, lack of modern court infrastructure and facilities especially electricity and modern court recording systems etc. However, litigants can expediate litigations by remaining focused in the final court prayer, recognising that time is precious and ignoring or even conceding little stumbling blocks that are designed to hinder the entire trajectory of the case.
10. Realistic Monetary Court Claims.
Courts claims for damages and compensation in developed countries are often astronomical because their sound and diverse economies. It is not out of place to hear of $1 Million compensation claims in the United States for trivial injuries as employment or gender discriminations. These types of injuries do not carry the same potency of damage and claim in most African legal systems. Due to the prevalence of weaker financial markets in several African countries, several local corporations cannot afford the payment of large monetary claims even after liquidation by court. Foreign litigants need to make realistic monetary court claims by fixing lower and payable compensation claims when filing court cases in African courts.
11. Execution of Judgments.
Victorious litigants must realise that relevant court orders for payment of claims in most African courts are similar to their foreign counterpart courts. They include writ of execution orders, garnishee orders, sequestration orders, writ of fife orders etc. Even after a foreign litigant secures Judgment in African based court litigations, payment of actual monetary compensation can take years as most litigants are obstinate and will appeal the court decision or at best reluctantly foot drag on the payment of compensation. Hence litigants must be prepared to pursue payments from Judgment debtors with the same vigor and perseverance that they initially exhibited at the filing of the court matter.
12. Competitive Legal Fees.
One remarkable advantage of litigating in Africa is that it still has the cheapest legal services globally compared to Europe and Asia. Lawyers accept reasonable lump sum as legal fees for litigation suits while others accept contingency fees. Hence legal fees in the continent are low compared to foreign lawyers who charge higher lump sum fees or emply per hour billing. Most foreign litigants may also consider traveling down to attend to court cases as litigants or witnesses. Hence it will necessary to budget for traveling expenses at the commencement of every new court matter.
13. Conclusion.
Finally, while the above challenges typify the basic problems every foreign litigant are likely to face in every other litigation matter filed in an African court, they are by no means exhaustive or conclusive. Novel or more complicated challenges can still arise depending on the circumstances of each particular case. However, any foreign litigant faced with these archetypal challenges can be certain that they are surmountable.
ABOUT THE AUTHOR: Barrister Onjefu Adoga is a Nigerian lawyer.
Barrister Onjefu Adoga is a Nigerian lawyer. He is the managing Partner of Brooke Chambers Law Firm specializing in litigation practice. He is a member of the African Law Committee of the American Bar Association.