THE BACKGROUND & OBJECTIVE OF AfCFTA
African Continental Free Trade Area (AfCFTA) is a flagship project of Agenda 2063 of the Africa Union- Africa’s own development vision. It was approved by the 18th ordinary Session of Assembly of Heads of State and Government, held in Addis Ababa, Ethopia in January 2012 which adopted the decision to establish a Continental Free Trade Area. This initiative whose immediate implementation would impact socio-economic development, enhance confidence and the commitment of Africans as well as the owners and drivers of Agenda 2063. The aspirations of Agenda 2063 for a continental market with the free movement of persons, capital, goods and services, which are crucial for deepening economic integration, socioeconomic development, gender equality and, more broadly, enhanced competitiveness and industrial development among African nations. This Article seeks to provide insights into various aspects of the AfCFTA’s development; The next steps required to make the Agreement fully operational;The various component parts that remain to be negotiated, and; The role lawyers will play in the process.
The African Continental Free Trade Area (AfCFTA) agreement will create the largest free trade area in the world measured by the number of countries participating. The impact connects 1.3 billion people across 55 countries with a combined gross domestic product (GDP) valued at US$3.4 trillion. It has the potential to lift 30 million people out of extreme poverty, but achieving its full potential will depend on putting in place significant policy reforms and trade facilitation measures. The African Continental Free Trade Agreement represents a major opportunity for countries to boost growth, reduce poverty, and broaden economic inclusion.
Implementing AfCFTA would boost the incomes of nearly 68 million others who live on less than $5.50 a day; boost Africa’s income by $450 billion by 2035 (a gain of 7 percent) while adding $76 billion to the income of the rest of the world; increase Africa’s exports by $560 billion, mostly in manufacturing; spur larger wage gains for women (10.5 percent) than for men (9.9 percent), and ; boost wages for both skilled and unskilled workers—10.3 percent for unskilled workers, and 9.8 percent for skilled workers.
According to Article 3 of the African Continental Free Trade Area, the general objectives of the AfCFTA are to:
(a) create a single market for goods, services, facilitated by movement of persons in order to deepen the economic integration of the African continent and in accordance with the Pan African Vision of “An integrated, prosperous and peaceful Africa” enshrined in Agenda 2063;
(b) create a liberalised market for goods and services through successive rounds of negotiations;
(c) contribute to the movement of capital and natural persons and facilitate investments building on the initiatives and developments in the State Parties and RECs;
(d) lay the foundation for the establishment of a Continental Customs Union at a later stage;
(e) promote and attain sustainable and inclusive socio-economic development, gender equality and structural transformation of the State Parties;
(f) enhance the competitiveness of the economies of State Parties within the continent and the global market;
(g) promote industrial development through diversification and regional value chain development, agricultural development and food security; and
(h) resolve the challenges of multiple and overlapping memberships and expedite the regional and continental integration processes.
STATUS OF RACTIFICATION BY EACH MEMBER STATE
The AfCFTA aims at accelerating intra-African trade and boosting Africa’s trading position in the global market by strengthening Africa’s common voice and policy space in global trade negotiations. As at 7th July 2021, 37 countries have deposited their instruments of ratification (ordered by date): Ghana, Kenya, Rwanda, Niger, Chad, Eswatini, Guinea, Côte d’Ivoire, Mali, Namibia, South Africa, Congo, Rep., Djibouti, Mauritania, Uganda, Senegal, Togo, Egypt, Ethiopia, Gambia, Sahrawi Arab Democratic Rep., Sierra Leone, Zimbabwe, Burkina Faso, São Tomé & Príncipe, Equatorial Guinea, Gabon, Mauritius, Central African Rep., Angola, Lesotho, Tunisia, Cameroon, Nigeria, Malawi, Zambia, and Algeria.
Parliamentary/Cabinet approval has been received for Seychelles and Burundi. Somalia is pending.
Implications of Ratifying & Domesticating a Treaty
Once a country signs a treaty, it is obliged under international law to refrain from any act which could defeat the object or purpose of the treaty until it formally revokes its signature. That a country is yet to domesticate a treaty into its local law does not shift its obligation with respect to the international framework.
However, domestication of a treaty is particularly important because of the applicability of the provisions of the treaty in domestic courts. Furthermore, domesticating a treaty into local law makes provisions of such treaty justiciable in that jurisdiction. For instance, the African Charter which was domesticated by the first National Assembly of Nigeria in 1983 did not only make justiciable some provisions of Chapter II of the defunct 1979 Constitution that were hitherto non-justiciable, but also constitutes the legal basis for the enforcement of people’s rights in Nigerian court since neither the 1999 Constitution or any other law in force in Nigeria makes provision for the enforcement of people’s rights.
Thus, in order for Nigerian courts to adjudicate over AfCFTA-related matters, the AfCFTA must be enacted into law by the National Assembly. This was iterated in the case of Abacha v. Fawehinmi (2000) 77 LCRN 1261 – 1262 where while interpreting section 12 of the Constitution, Nigeria’s Supreme Court echoed:
“An international treaty entered into by the Government of Nigeria does not become binding until enacted into law by the National Assembly. An international treaty has no such force of law as to make its provisions justiciable in our courts.”
POTENTIAL BENEFITS OF THE AGREEMENT UPON RACTIFICATION
The AfCFTA has the potential to put in place mechanisms to address many of the non-tariff challenges frustrating intra-African trade. It could do so in a manner which will provide more certainty and predictability and improve the trade facilitation environment. The potential dynamic benefits of the AfCFTA are particularly important. Larger integrated markets may well be more attractive to investors and along with new investment could come new technologies and learning that could boost productive capacity.
African countries that ratify the agreement consent to liberalize 90% of tariff lines. This means that countries will reduce, and ultimately eliminate, tariffs on 90% of products traded under the AfCFTA. Least Developed Countries (LDCs) are expected to accomplish this over a 10-year period, and non-LDCs over a five-year period. Sensitive products, of up to 7% of tariff lines, will be fully liberalized over 13 years for LDCs and 10 years for non-LDCs. Finally, 3% of tariff lines will be excluded from tariff liberalization.
STEPS REQUIRED TO MAKE THE AGREEMENT OPERATIONAL
There are five additional instruments that will support AfCFTA operationalization. These are:
(1) Rules of origin, which ensure that products traded within the market actually originate from within the continent and are therefore subject to tariff preferences;
(2) An online portal for tariff negotiations, which facilitates discussions between states, customs unions and regional groupings on tariff liberalization;
(3) An online mechanism for monitoring, reporting and elimination of non-tariff barriers (NTBs); (4) A pan-African payment and settlement system, which makes it possible for African companies to clear and settle intra-African trade transactions in their local currencies; and
(5) The African Trade Observatory, which will provide stakeholders up-to-date and reliable trade data, as well as information about exporters and importers in countries.
National and Regional strategies have been adopted by Member States’ to ensure the implementation of AfCFTA. The United Nations Economic Commission for Africa (ECA) is playing a key role in providing support to the AfCFTA process. ECA is collaborating with the African Union Commission (AUC) and various partners to advocate for AU Member States’ AfCFTA ratification and implementation, sensitization around the AfCFTA and technical support to the negotiations. The technical support includes help with the preparation of negotiating texts and liberalization modalities, and assistance in developing tariff offers for the East African Community (EAC) and Economic Community of Central African States.
East African Community (ECA’s) technical support also extends to assistance in the preparation of national AfCFTA strategies. Forty-one countries, including 21 (twenty-one) LDCs and 4 (four) Regional Economic Communities (RECs), are at various stages in preparing these strategies, which identify strategic areas of national interest and relevant interventions to ensure that countries and regions fully participate and benefit from the agreement. So far, 11 (eleven) of the 41 (fourty-one) countries and RECs have validated AfCFTA implementation strategies. The strategies aim at complementing the broader development framework of each country or region, especially in relation to trade and industrialization policies. Some are already implementing their AfCFTA strategies and have a National Committee in place to ensure proper coordination of implementation, policy coherence and effective domestication of the agreement.
In Côte d’Ivoire for example, the government has released the AfCFTA National Committee budget to implement priority actions of the AfCFTA national strategy, and in September 2020, its committee trained 200 owners and operators of SMEs in four cities on the use of the continental online tool for monitoring, reporting and elimination of NTBs. Togo held a training for customs authorities and affiliated institutions to improve their knowledge of the AfCFTA. Sierra Leone is developing an industrial policy and special economic zones policy to create a conducive environment for the industrial sector to grow and contribute to the diversification of the economy.
In Nigeria, Mr. Francis Anatogu, Senior Special Adviser to the President on Public Sector Matters, said that the Nigerian Customs Service, NCS, is now working on the administrative protocols for the implementation of the AfCFTA. Anatogu who is also the Secretary of the National Action Committee, NAC, for Nigeria’s AfCFTA implementation, also said that efforts are ongoing in most of the 36 states of the country for the takeoff of Nigeria’s participation.
The National Action Committee, NAC, according to him, has already embarked on states mobilization programme, which has covered four states, in a bid to ensure that all Nigerian businesses are sensitized and prepared to take advantage of the scheme.
THE ROLE AFRICAN LAWYERS PLAY IN THE OPERATION AND IMPLEMENTATION OF THE AGREEMENT
African Lawyers need to be strategically poised for this next level of trade in Africa and will be crucial to the successful implementation of the Africa Continental Free Trade Area (AfCFTA) Agreement. We need to familiarise ourselves and be proactive with the global trade trends and debates. This will greatly contribute to the success and competence in trade law and business in Africa. Also, African lawyers must in addition, continue to engage in negotiation, join professional associations and advocate for policy reforms as this will greatly contribute to the ease of doing business not only in Africa but globally.
A doctoral student at University of Toronto, Canada, Mariam Momodu at an interview with Africa Legal contributed to the role of lawyers in the implementation of AfCFTA, she said;
“African Lawyers have an added responsibility to be proactive while advising their clients, in light of the AfCFTA. A direct implication of the AfCFTA will be increased regulatory competition among African countries. It is only natural for investors and entrepreneurs alike to be more inclined to locate or operate their business in a country with a more favorable regulatory climate. This could be on tough trade decisions surrounding questions like, for instance, how can clients increase their share of regional and continental markets? What immediate strategic decisions do clients need to take to position themselves for cross-border growth? What legal impediments might they face? By thinking ahead of clients, lawyers are not only adding significant value but will also be catalysts for the private sector involvement that is required for the AfCFTA to succeed.”
In the vast majority of cases, the dispute will fall within the commercial contract between the transacting parties and where dispute arises African lawyers will come to play and lawyers will make use of an appropriate and modern dispute resolution mechanism that will support the growth of intra-African trade. African lawyers serve as key personnel in the African market space and actively explore their participation in intra-African trade in goods, services and investment, which will drive great success to the implementation of the AfCFTA.
The legal status of corporations or business entities trading or carrying on business across one or more African countries vary from the informal to the formal. These include family businesses micro, small and medium sized enterprises (MSME) that, constitute the vast majority of business entities, as well as large companies. The ability to access such business support services require the role of lawyers in order to prevent disputes arising from commercial transaction.
Generally, disputes can arise between two or more private, commercial or business entities. It may also include a state or a state agency performing a commercial transaction and acting in a commercial capacity. The current framework for the resolution of such commercial disputes are through litigation before national courts (1), mediation (2) or arbitration (3). For completeness, investment disputes between African states and African investors may also arise under these transactions and these may be resolved through investment arbitration- In all these capacities African lawyers have roles to play.
The 54 independent African countries all have a State sponsored judiciary with clearly defined court hierarchies. In the vast majority of African states, these court structures are contained in their written constitutions which also provide detailed appeal structures. Citizens of African states generally have constitutionally protected rights of access to their national courts to pursue the vindication of their legal rights. However, the timeline for pursuing claims before the courts of most African states is notoriously long, with most of the judicial systems dating back to the colonial period, and with very little modernisation having been made. This inefficiency in the court systems is balanced with low court fees (in comparison to court fees payable in developed jurisdictions) which supports access to the courts and litigation as the primary dispute resolution mechanism.
The current reality however, is that only 17 (seventeen)of the 54 (fifty-four) African states have harmonised their business laws with a supranational court as the final arbiter of disputes arising from the business laws. One practical way for litigants to ameliorate the impact of the differences mentioned above, on their cross-border transactions, is to refer to African lawyers. Such referral will add to their transactions cost and cost of dispute resolution. This will have a negative impact on MSMEs and operators in the informal sector who are the main drivers of intra-African trade in goods and services.
The word, ‘mediation’ is used in a very broad sense to refer to all non-adjudicative alternative dispute resolution (ADR) processes. The basic idea behind all such processes is to empower the disputants to manage their dispute and its resolution either by themselves or with the intervention of a third party neutral. Such processes align well with traditional dispute resolution processes of various pre-colonial African communities. These traditional processes (which remain in use) are applied to resolve all types of disputes including, civil, family, communal and commercial disputes. With reference to the enforcement of decisions from such traditional dispute resolution processes, each community formulated its own enforcement measures.
It is the flexibility of the process that makes mediation attractive. Thus, mediation, an attractive tool which empowers the parties to find solutions to their disputes with the help of a third party neutral, is a developing system, which must be encouraged in the implementation of AfCFTA. Hence, African lawyers will be sort to resolve dispute arising from intra-African trade vide this mechanism.
Arbitration is an adjudicative dispute resolution process in which the parties give the control or power to determine their dispute to a neutral third party, the arbitral tribunal. The tribunal determines the dispute and the rights and obligations of the disputants. In arbitration, the parties need to persuade the arbitral tribunal of the validity of their claims. This is unlike in most mediation processes where the disputants communicate with each other, even when the communication is through a third party neutral. In this way, arbitration is likened to litigation before national courts, only private, and the arbitrator is likened to a private judge. In arbitration therefore, the disputants receive a final determination or decision by the arbitral tribunal over their dispute, just as they do in litigation. This gives some degree of certainty and finality.
Nation states accord a certain status to arbitral awards and the vast majority of African jurisdictions, accord to arbitral awards the same status as a final judgment of their national (first instance) courts. This status is priceless to arbitration as a private dispute resolution mechanism. It effectively means that the arbitration process covers the equivalent of the first instance court proceeding that would have had jurisdiction over the dispute, only better. The arbitral hearing process is better because the findings of the arbitral tribunal on the facts generally, cannot be reopened and the award can only be challenged on very limited grounds and not open to full blown appeal as the judgment of a national court. In addition, there are currently 38 African states that are members of the New York Convention under which foreign arbitral awards can be enforced or challenged also on very limited grounds, in 159 jurisdictions globally.
As already mentioned, arbitration is a recognised dispute resolution mechanism in practically all African states, particularly for the resolution of commercial or business disputes. In support of this process, all but one, of the states in Africa (South Sudan) have enacted into law, modern (and in some cases not so modern) arbitration legislations. Though there is no continent-wide arbitration law, there is a uniform arbitration law binding on the seventeen OHADA member states. Some of these national legislations are currently under review while, in our view, a majority of the laws need to be reviewed to modernise their provisions so they remain fit for use by sophisticated commercial parties. Interestingly, 55% of the respondents to the 2018 SOAS Arbitration in Africa survey, believe their national arbitration laws are effective with 45% believing their national arbitration laws are not effective or need review. Thus there is legislative framework for the operation of arbitration in almost all African countries evidencing the acceptance of the dispute resolution mechanism by African States.
In conclusion, African lawyers needs a supportive judiciary to thrive. African lawyers and judges, over the years, have started making the transition from aversion to support Intra-African trade. Such support must be sustained through the continued: training of judges and lawyers, engagement between the national and continental trade communities, and African judiciaries, publication of commercial-related judgements from African judiciaries, and increased expert support for African legislatures revising their trade laws.
OPPORTUNITIES AND BENEFITS FOR AFRICAN LAWYERS IN THE IMPLEMENTATION OF AfCFTA
The overall consensus of the panel in the East Africa International Arbitration Conference (EAIAC)’s AfCFTA: Implementation and Dispute Resolution webinar, was that significant gains can be made from the African Continental Free Trade Area (AfCFTA)’s promotion of intra-Africa trade, with strong potential to promote industrialisation. The panel spoke positively of AfCFTA’s impact on trade, with keynote speaker Professor David Luke, coordinator of the African Trade Policy Centre at the United Nations Economic Commission for Africa, saying its implementation is much needed to create a free trade-type environment in Africa.
At the panel discussion it was agreed that there will be an array of opportunities for legal practitioners to advise on compliance and implementation of the terms of AfCFTA, and for advising on the utilisation of the Dispute Resolution Mechanism (DRM). Luke also noted the importance of the service protocol, which enables practitioners to provide legal services outside their borders, whether that be directly, via commercial presence, or by establishing firms through mergers and acquisitions. Also at this seminar, a Director at Kenyan law firm Anjarwalla & Khanna, Luisa Cetina, emphasised the myriad of opportunities the agreement has brought to the African legal sector, especially in dispute resolution. Government and state bodies, as well as private companies, will all be looking for legal representation and guidance in relation to AfCFTA’s implementation, compliance and disputes arising under the agreement, she said.
Anjarwalla & Khanna also gave a highlight on the huge demand for international trade lawyers across the continent. If a customs union is eventually adopted, and the full liberalisation of trade in Africa reached under AfCFTA, a lawyer trained in one African country could cross the border to work in a neighbouring country, explained Cetina, another great opportunity for legal practitioners.
Numerous opportunities exist for the international legal community especially because Ghana is hosting the Secretariat. These benefits may not only be enjoyed by lawyers but also legal academics and even law students, some of which include:
Foreign Direct Investors
Ghana hosting the Secretariat projects the country as a peaceful and politically stable nation. This will attract more foreign investors who may choose to establish businesses in Ghana. Potential investors (clients) all over the world may contact lawyers in their respective countries to facilitate doing business in Ghana. These lawyers may further require assistance from Ghanaian lawyers to register these businesses and offer related services. These international legal liaisons are beneficial for the legal profession.
Opportunities in Dispute Settlement
Disputes are bound to arise with such trade organisations. Under AfCFTA, a dispute settlement body (DSB) is expected to settle these disputes with the assistance of a Panel. The Panel has a right to seek information and technical advice from any source that it deems appropriate, seek information from any relevant source and consult experts to obtain their opinion on any matter. Lawyers, judges and legal academics worldwide who have the relevant expertise may be useful in this regard. The knowledge and experience gathered from settling disputes arising from trade organisations from other continents will serve as excellent precedents and have persuasive effect.
Academic Collaborations and Research
The Secretariat is required to organise training workshops and seminars for staff and state parties to build the capacity required for the implementation of AfCFTA on the continent. This offers a great avenue for international trade law academics to serve as facilitators for such seminars and trainings. New academic areas of study relating to the AfCFTA may also be rolled out in the various law faculties globally which will require experts and academicians with the requisite experience to teach.
International Law Experience and Exchange Programs
Hosting of the AfCFTA Secretariat in Ghana presents an opportunity for International Law students to visit Ghana to witness some of the international dispute settlement mechanisms and undertake internships with the Secretariat. The Secretariat is likely to hold most of the dispute settlement sessions which will afford law students and practitioners worldwide a learning opportunity in international trade law.
Ghana hosting the Secretariat comes with certain benefits and good prospects for the international legal community. The AfCFTA Secretariat being hosted in Ghana is a step in the right direction and the international legal community should brace itself to take advantage of the opportunities it presents.
I will conclude with the words ofGreg Falkof, Partner, Evershed Sutherland, London and Kunle Ajagbe, Partner, AIDAN, Lagos, Nigeria in their article- Nigeria’s lawyers run the rule over free trade deal .
“Every specialist area of legal practice, from corporate finance and employment to litigation, intellectual property and environmental law will require a degree of harmonization across a range of different African jurisdictions to allow for truly freer trade. Though AfCFTA will have the benefit of the European Union example to follow, the road ahead is far from smooth. African Lawyers are expected to play key roles in designing and then implementing the new policies.”
 https://afcfta.au.int/en/about accessed 6th August 2021
 Article 3, African Continental Free Trade Area (AfCFTA) Agreement
 https://www.tralac.org/resources/infographic/13795-status-of-afcfta-ratification.html accessed 6th August 2021
 https://www.lexology.com/library/detail.aspx?g=bdf24d01-f933-4773-bfc0-edd0f91e3b97 accessed 6th August, 2021
 https://trade4devnews.enhancedif.org/en/op-ed/implementing-afcfta-2021 accessed 6th August, 2021
 https://www.vanguardngr.com/2021/03/fg-steps-up-action-to-implement-afcfta-protocols/ accessed 6th August 2021
 According to a 2016 study by McKinsey Global Institute, 56% of the largest companies in Africa are wholly owned by Africans and these operate in food and agricultural sector. State owned enterprises account for 17% of these companies and operate mainly in resources, utilities and transportation sectors. The remaining 27% are foreign-based multinational corporations. See: https://qz.com/782196/mckinseys-africa-2016-reporthighlights-africas-fast-growing-corporate-companies/ [last visited 6th August, 2021].
 For some examples, see: Part VII of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Chapter 11 of the 1992 Constitution of Ghana; Title VI of the 1990 Constitution of Benin Republic; Chapter 10 of the 2010 Constitution of Kenya; and Part 3 of Chapter 3 of the 2012 Constitution of Egypt
 One notable exception is Rwanda. According to the World Bank Ease of Doing Business Report, 2018, it takes 280 days from the filing of a dispute to the payment of the judgment sum. See: http://www.doingbusiness.org/data/exploreeconomies/rwanda#enforcing-contracts [last accessed 6th August, 2021].
 Arbitration awards generally have res judicata effect but are still subject to enforcement and annulment proceedings, though on limited grounds. See for example, Nigel Blackaby and Constantine Partasides with Alan Redfern and Martin Hunter, Redfern and Hunter on International Arbitration, (6th ed., Oxford University Press, 2015) pp. 559-560
 For the position under the laws of various African states, see, John Miles, Tunde Fagbohunlu and Kamal Shah, Arbitration in Africa, a Review of Key Jurisdictions, (Sweet & Maxwell, 2016); and Lise Bosman (general editor) Arbitration in Africa: A Practitioner’s Guide, (Kluwer Law International, 2013).
 1 National arbitration laws also set out the grounds for such challenge. See for example, arts. 34 and 36 of the UNCITRAL Model Law
 The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 1958 with text available at: https://uncitral.un.org/sites/uncitral.un.org/files/mediadocuments/uncitral/en/new-york-convention-e.pdf [last visited 6th August 2021].
 See Table 2 below for a list of these national arbitration laws.
 This is in the sense of a similar agreement to the European Convention on International Commercial Arbitration of 1961 available at: https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXII2&chapter=22&clang=_en [last visited 6th August 2021].
 The Uniform Arbitration Act, 1999 was revised in November 2017 effective March 2018.
 SOAS Arbitration in Africa Survey at p. 32
 https://iclg.com/alb/15796-afcfta-a-window-of-opportunity accessed 6th August 2021
 https://www.lexology.com/library/detail.aspx?g=d3064b43-60e0-47e0-b38b-57935811f906 accessed 6th August 2021
 https://iclg.com/alb/8500-nigeria-slawyers-run-the-rule-over-free-trade-deal accessed 6th August 2021.