Relevant questions on the presentation: “Burundi's Accession Process to OHADA”
By Abdoul Mtoka, Founding Partner at Africase Attorneys
Conference on Perspectives of OHADA Expansion, Université Jean Moulin (Lyon 3), 15 quai Claude Bernard, Lyon, France

1. What are the main advantages for Burundi in joining OHADA in terms of improving the business climate?

Joining the Organisation for the harmonisation of business law in Africa (OHADA) would provide Burundi with a modern, harmonised legal framework for business law that is internationally recognised. This would enhance legal certainty, encourage foreign investment, and facilitate commercial transactions by aligning Burundi with common rules shared across other member states. Moreover, it would offer better protection for creditors and investors and promote greater transparency in business operations.

2. What specific challenges could Burundi face in implementing OHADA regulations, especially considering its current legal and judicial framework?

The primary challenge for Burundi would be aligning its existing legal framework with OHADA standards. This would necessitate revising national business laws and training local legal and economic stakeholders to familiarise them with OHADA law. There may also be resistance from legal practitioners and judges accustomed to Burundi's national laws, making the transition to OHADA a potentially difficult process.

3. What legislative, regulatory and institutional reforms has Burundi undertaken or should it undertake to prepare for its accession to OHADA?

Since the 2010s, Burundi has initiated several reforms aimed at improving its business environment, particularly in company law, commercial law and investment law. However, to fully integrate into OHADA, Burundi must ratify the OHADA treaty, enabling the incorporation of OHADA's uniform acts into its domestic legal system. It will need to reform its legislative and regulatory frameworks accordingly and adjust its judicial institutions to ensure the effective implementation of these uniform acts. Furthermore, judges and lawyers will require training in the new legal framework to ensure the correct application of OHADA regulations.

4. How could Burundi's accession to OHADA impact its regional and international trade relations, especially with non-OHADA countries?

Burundi's accession to OHADA would improve its trade relations with member states by offering a harmonised and secure legal framework. However, Burundi could also leverage its geographic proximity to non-OHADA countries such as Rwanda, Tanzania, Kenya, and even South Africa. By positioning itself as an intermediary between these nations and OHADA member states, Burundi could play a pivotal role in facilitating regional economic exchanges.

By providing businesses from these countries with simplified and legally secure access to OHADA-governed markets, Burundi could serve as a bridge between East Africa, Central Africa and West Africa. For example, companies from Rwanda, Tanzania, Kenya and South Africa might use Burundi as a hub to structure investments and develop transactions within the OHADA zone. This strategic role could attract regional investments, bolster Burundi's logistical, financial and legal services, and strengthen its overall economic positioning.

To achieve this, Burundi will need to ensure political stability and invest in appropriate infrastructure, such as transport and communication, to support trade. Additionally, creating an attractive regulatory framework for businesses from these neighbouring countries, particularly in the areas of taxation and commercial law, will be essential to ensure success.

5. What role does judicial resistance, particularly from the Burundian Supreme Court, play in the accession process, and how can it be overcome?

The Burundian Supreme Court may resist Burundi's accession to OHADA due to the potential loss of some of its powers. Specifically, the Court would no longer interpret business law texts and would lose jurisdiction over commercial disputes, which would now be handled by OHADA's Common Court of Justice and Arbitration (CCJA). This represents a significant shift in the country's legal order and may lead to institutional resistance.

To mitigate this resistance, it is essential to raise awareness among judges and legal practitioners about the importance of regional legal harmonisation and the benefits OHADA offers in terms of legal certainty and economic attractiveness. Engaging the Supreme Court in the accession discussions and clarifying that, although business jurisdiction would transfer to the CCJA, the Court would retain its authority over other national legal matters, could help ease concerns. Additionally, a training programme on OHADA law for judges could prepare the judiciary for this transition.

6. How could OHADA membership serve as an opportunity for Burundi to strengthen its economic development, particularly by benefiting from shared legal expertise within the Organisation, while integrating into regional dynamics such as the African Continental Free Trade Area (AfCFTA)?

For Burundi, joining OHADA represents a significant strategic opportunity to strengthen its economic development, rather than posing a burden or threat to its existing legal and judicial framework. This integration would enable the country to benefit from a supranational jurisdiction specialised in commercial disputes, known for its impartiality and professionalism. Relying on a well-developed, rich body of case law that is accessible and in line with international standards, this jurisdiction would offer Burundi a solution to the lack of specialisation in business law among a significant portion of its judges. It would also serve as a remedy against the administrative burdens and congestion of the Supreme Court, which is overwhelmed by numerous commercial cases, currently slowing down the litigation process. Appeals to the Supreme Court can take several years before being reviewed. Both the Court and litigants have consistently expressed dissatisfaction with this situation. This, in turn, would allow Burundian authorities to focus their efforts on other priorities critical to the country's economic and legal development.

Moreover, Burundi would achieve significant economies of scale by leveraging the shared expertise of a wide range of African states within OHADA, all united by a common goal of economic development and the acceleration of trade. This dynamic would be even more meaningful within the framework of the African Continental Free Trade Area (AfCFTA), where membership in a harmonised legal system would enhance regional economic integration.

It is also important to highlight that, in a globalised context where only large economic, territorial, and demographic blocs dominate the international stage, joining organisations like OHADA would allow Burundi to emerge from isolation and withdrawal, which are often cited as underlying causes of persistent poverty in Africa. By aligning itself with a harmonised legal framework, Burundi would not only become a more attractive destination for business, but also position itself as a facilitator of regional trade, thereby enhancing its competitiveness on the international economic stage.

7. What are the economic and administrative costs for Burundi associated with joining OHADA, and how could the country offset them?

The costs of joining OHADA include aligning national laws, training legal professionals such as lawyers and judges, and covering membership fees for the OHADA system. However, these expenses can be offset by the longterm economic benefits of increased foreign investment and an improved business environment. OHADA membership may also attract international funding and partnerships to help support these necessary reforms.

8. How could Burundi's accession to OHADA affect small and medium-sized enterprises (SMEs) unfamiliar with harmonised business law practices?

In the short term, SMEs in Burundi may find it difficult to adapt to the new legal framework. However, in the long term, OHADA's harmonisation of business law will simplify processes such as business formation and the resolution of commercial disputes. Awareness and training campaigns will be critical in helping SMEs understand and apply the new standards. Additionally, OHADA's simplification of administrative procedures will promote business growth.

9. What impact would Burundi's accession to OHADA have on foreign investors and the local private sector, particularly in terms of legal security and trust?

Accession to OHADA would reassure foreign investors by providing a stable and transparent legal framework recognised internationally. This would increase confidence in Burundi's judicial system and encourage longterm investments. The local private sector would also benefit from a more predictable legal framework, which would help them assert their rights more effectively and foster international partnerships and growth opportunities.

10. OHADA proposes harmonised business law. What are the consequences for Burundi of losing part of its legal sovereignty in business law?

It is important to note that this is not so much a “loss” of sovereignty as it is a considered decision to adopt OHADA's rules. By joining this harmonised legal framework, Burundi chooses to adhere to regional standards that have proven effective in legal and economic terms. This choice enables Burundi to benefit from enhanced legal certainty, which is vital for attracting foreign investment and fostering trust among local businesses.

Rather than a loss, this harmonisation represents a gain in legal coherence and predictability. By integrating OHADA regulations, Burundi adopts rules that apply across multiple African countries, thereby reducing arbitrary rulings and legal uncertainties that could otherwise hinder business activities. Additionally, OHADA contributes to overcoming inefficiencies commonly seen in fragmented national legal systems, fostering economic efficiency through streamlined, faster and more cost-effective procedures.

Thus, this process is not a surrender of sovereignty but rather a rationalisation of it, allowing Burundi to focus on other areas of legal development while adopting a proven framework for business law. In the end, what longterm risks could Burundi face, other than the possibility of a rapid economic recovery? It will be able, in full sovereignty and at any time, to assess the opportunity to withdraw and denounce the treaty if it only brings disadvantages.

11. How long could it take for Burundi to complete its OHADA accession process, from political decision-making to full implementation of OHADA regulations?

The accession process could take between one and three years, depending on how swiftly the Burundian government ratifies the OHADA treaty and implements the necessary reforms. Training judges and economic actors will also require time. However, once the treaty is ratified, OHADA regulations apply immediately to legal relations, although full adoption of the practices may require an adjustment period.

For further information, please contact :

Abdoul Mtoka
Email: abdoul.mtoka@africase.co