The impact of armed conflict on commercial disputes in Africa

Julia Ferraz-Cardoso
ENS, South Africa

Edward Nathan Sonnenbergs
ENS, South Africa

Acknowledgements:

Burkina Faso: Ms Bobson Coulibaly – SCP Yanogo Bobson

Sierra Leone: Ms Millicent Stronge – Stronge Legal

Sudan: Mr Tayeb Hassabo – Aztan Law Firm

An armed conflict is regarded by the United Nations[1] as ‘a situation in which there is resort to armed force between States or protracted resort to armed force between governmental authorities and organized armed groups’.

Africa is particularly affected by armed conflict, with some estimates suggesting as many as 35 ongoing non-international armed conflicts across the continent.[2] Despite this, Africa is also predicted to remain the second-fastest growing region in the world in 2024,[3] implying a degree of investment and development in the region.

For any entities or individuals intending to conduct business in Africa, this may lead to questions around how to manage a commercial dispute. The answer to this question naturally depends heavily on which jurisdiction the commercial dispute arises in. In some jurisdictions, the judicial system has been entirely incapacitated as a result of conflict, whereas in others, it has remained largely unaffected.

Below, we provide high-level insight into the impact of armed conflicts on commercial disputes ‘on the ground’, in three relevant jurisdictions: Burkina Faso, Sudan and Sierra Leone.

Burkina Faso

In Burkina Faso, despite the country facing constant attacks by terrorist groups since 2016 and two military coups in 2022, courts and jurisdictions continue to function. Bobson Coulibaly of SCP Yanogo Bobson in Ouagadougou advises that the service of claims and enforcement of judgments are still being performed as per usual, although courts close to the country’s borders (where the impact of the conflict is most immediately evident) have been relocated to jurisdictions closer to Ouagadougou – the country’s capital. This to ensure minimal disruption to the administration of civil and criminal justice.

The decision to close and relocate a court is taken by the president of the high court whose locality is affected by the security crisis. This decision is then submitted to the higher council of the judiciary for confirmation (Conseil Supérieur de la Magistrature). Upon approval, the courts and relevant agents are sent to the new location.

The majority of commercial disputes are, however, heard by the courts in Ouagadougou and Bobo-Dioulasso, which have faced no interruptions due to the terrorist attacks to date. The vast majority of Burkina Faso’s medium to large companies are registered in these two cities, and so the service of claims and enforcement of judgments have continued without disruption. Due to these cities being the economic centres of the country, businesses operated there are not on the ‘frontline’ of the conflict.

Although civil disputes have been largely unaffected, local practitioners have witnessed an increase in criminal cases being brought before the courts and the establishment of special courts, specialising in terrorism, high security prisons and the like, to address the new security issues.

Sierra Leone

In Sierra Leone, where conflict has historically arisen around the trade of illicit or so-called ‘blood’ diamonds, the impact of armed conflict has been profound and multi-faceted, having caused severe disruptions to supply chains, investment and economic development in the country.

Navigating civil legal proceedings and enforcing judgments in the aftermath of armed conflict has posed unique challenges for local legal practitioners, which demand a nuanced understanding both of local dynamics as well as legal frameworks.

Sierra Leone is governed by multiple legal regimes, comprising the traditional legal regime which operates in local rural communities (and operated before colonisation), and a formal legal regime, with its roots in the laws of the United Kingdom.

Millicent Stronge of Stronge Legal in Freetown explains that the repercussions of the armed conflict on commercial disputes have been significant, ranging from the influence of sanctions to the impact of the conflict on the enforcement of judgments, and ultimately have compromised access to justice in conflict-ridden regions.

In that regard, a particular source of difficulty in resolving commercial disputes in post-conflict Sierra Leone has been the effect of the decimation of the judiciary that took place during the conflict, given that courts were set alight and destroyed, and judges’ residential quarters targeted and attacked. Judicial proceedings were consequently severely disrupted, underscoring the complexities litigants and legal practitioners face in post-conflict environments.

Similarly, the traditional legal regime was nearly decimated during the civil war (1991–2002) following the campaign conducted by the Revolutionary Armed Front to eliminate village chiefs and elders as administrators of the state legal structure.

The post-conflict reality in Sierra Leone necessitated changes to the law that would take account of the practical impact that the conflict has had on the legal system and the administration of justice. Consequently, extensions of limitation periods and adaptations to legal procedures have significantly shaped the landscape of commercial disputes in Sierra Leone as a result of the legacy of civil war.

Sudan

Sudan has endured three devastating civil wars between 1955 and 2005, most recently in April 2023, when conflict broke out between the Sudanese Armed Forces and Rapid Support Forces, which has escalated into a severe humanitarian crisis for civilians. Millions have been displaced, and there is heavy military presence in certain parts of the country, with over 50 per cent of the country currently dominated by the Rapid Support Forces. Port Sudan, however, remains under the control of the military government.

Tayeb Hassabo of Aztan Law Firm in Khartoum notes that the political milieu in Sudan has had a dire impact on the ability to litigate commercial disputes in the country. Regions of the country that are under the control of the Rapid Support Forces are without courts, police or prosecutors, and consequently litigation has ground to a halt.

In the remainder of Sudan, which continues to be under the control of the military government, courts continue to function. In a practical bid to maintain functionality, and as a direct impact of the armed conflict, the Chief Justice has recently issued a circular granting jurisdiction to Port Sudan courts to hear all disputes arising across Sudan as a whole, even those disputes over which, prior to the war, these courts may not have had jurisdiction. For example, any claims that would otherwise have been required to be filed in Khartoum (which has been heavily impacted by the conflict) or any other Sudanese town, owing to geographical jurisdiction, may now instead be heard by Port Sudan courts. That aside, all courts in Port Sudan are applying the usual procedural rules and regulations for now, and no change has been reported on account of the conflict.

In addition, and in response to the effect of the latest conflict, where possible, legal practitioners in Sudan may now advise clients to have disputes heard byc in the United Arab Emirates (UAE) and Saudi Arabia. This option is, however, only available in certain limited circumstances, such as where the parties to the dispute are resident in those jurisdictions, or where transactions were concluded and partially executed therein.

This has necessarily resulted in jurisdictional disputes, which in turn has generated an ongoing dispute before UAE courts relating to, inter alia, whether UAE or Sudanese law is applicable, and whether the war in Sudan should be classified as a force majeure event.

As one might expect, the impact of the conflict on civil litigation has resulted in Sudanese practitioners being briefed regularly to provide legal opinions regarding conflicts of law, in particular where Sudanese commercial disputes are being heard in UAE courts, and on practical commercial concerns, such as the liability of insurance companies with respect to the insurance coverage on clients’ movable and immovable assets located in Sudan.

Conclusion

These case studies underscore some of the high-level consequences of armed conflict on commercial disputes in Africa. While the legal systems in some jurisdictions are, fortunately, unaffected, others have been brought to a standstill, leaving litigants who are bound to local processes, in a difficult position.

Ultimately, clients operating in such environments often find themselves grappling with complex legal scenarios, necessitating tailored strategies for dispute resolution and risk mitigation, best provided by local counsel with local knowledge and expertise.