THE AGREEMENT ESTABLISHING AFRICAN CONTINENTAL FREE TRADE AREA (AfCFTA) – WHAT THIS MEANS FOR AFRICANS AND INTRA REGIONAL MOBILITY
CHRISTIANA SAGAY
"HAVING REGARD to 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, and promoting agricultural development, food security, industrialization and structural economic transformation;"
- The preamble of the AfCFTA
Postcolonialism, Africa, determined to position itself in the global landscape as a united front, established the Organization of African Union (OAU) in 1963. This iterative process led to the breakdown of the OAU, the formation of the African Union (AU), eight sub-regional economic communities and the several initiatives, treaties and protocols that have followed.
At the dawn of the new year – January 1, 2021, under the AU's auspices, free trading within the African Free Trade Area (FTA) commenced operation. Aimed to ultimately achieve a better life for Africa's peoples, accelerating intra-African Trade and Africa's position in the global market and policy space, the AU bore the AfCFTA. The AfCFTA, which creates a regime for achieving "the aspirations of Agenda 2063 for a continental market with the free movement of persons, capital, goods and services, as a critical element for deepening economic integration, in Africa, is set to develop along the architectural landscape of six Protocols – in trade on goods, trade on services, Rules and Procedures on the Settlement of Disputes, Competition Policy, Investment and Intellectual Property Rights. Most notably, the AfCFTA boasts of being the world's largest trade area with the highest number of participating states since the establishment of the World Trade Organization (WTO).
The years of intense negotiation leading up to the adoption and signing of the AfCFTA on March 21, 2018, was an exercise in solidarity and a shared determination by members of the AU to safeguard and consolidate the dividends of hard-won independence. In the same year, the Protocol to the Treaty Establishing the African Economic Community Relating to the Free Movement of Persons, Right to Residence and Right of Establishment (AEC Protocol) was adopted. Within this context, the AEC Protocol is notable because of the perceived advantage that the free movement of persons within the continent would afford the realization of the objectives of the AfCFTA. Free movement of persons in this context serves as not only a guide to the shared vision of the AU for an "integrated, people-centred and politically united continent but also a mechanism to ensure that trade liberalization in goods and services in Africa reaches its full potential and is not inhibited by mobility, access and passage.
The phrasing of Art 3(a) of the AfCFTA affirms the aspirational objective of creating "a single market for goods and services" that would be facilitated by the "movement of persons" [emphasis mine], Art 3(c) also adds that the AfCFTA would contribute to the "movement of capital and natural persons" [emphasis mine] to facilitate investments and developments of African states. The scope of what and how mobility would be addressed as the AfCFTA develops is rather unfledged within the agreement itself. The expectation is that intra-regional mobility would receive expression through the AEC Protocol.
Despite the benefits that the AEC Protocol holds in its aspirations and ambitious attempt at creating a right to entry, residence and establishment of nationals of member states for the facilitation of intra-Africa trade in goods and services, it continues to hold a somewhat unfavourable status among member states of the AU. Requiring fifteen nations' ratification to enter into force, since its adoption in 2018, the Protocol has only received four ratifications. This raises many boggling questions about what mobility would look like as the AfCFTA takes effect and continues to develop. Undoubtedly, trade in goods and services requires some factor mobility. Trade in goods specifically requires mobility access for the transportation of goods through transit countries to destination countries.
On the other hand, trade-in services may require a higher mobility threshold either for the service provider or the consumer, depending on the services rendered. Quite often, trade in services has implications for labour mobility in service delivery. Also pertinent is mobility required for commercial establishment of trade in goods and services, mainly where this occurs cross-border. Thus, the variegated ways that mobility propels or inhibits trade in goods and services are unquestionable. Thus, the failure to adequately address mobility access could negatively impact the sustainability of a viable trade regime. Often at loggerheads, balancing national security concerns, job security for state nationals, and the economics of trade continue to exacerbate the progress of transnational mobility.
This range of issues notwithstanding, mobility as a prerequisite for effective integration and economic advancement in Africa is not in doubt. The AfCFTA, like other liberalization of trade schemes (TLS), has become an increasing phenomenon in the international trade policies of several nations and regional systems of the world. It has also been touted to provide incentives that many economists stipulate to propel economic growth. But while trade policies have been increasingly liberalized over the years, cross-border mobility policies have remained relatively stagnant - and Africa is no exception. Thus, within the context of the AfCFTA is the lingering question: What does the AfCFTA mean for Africans and intra-regional mobility?
To Answer the Question
If the ECOWAS Protocol Relating to Free Movement of Persons, Residence and Establishment (ECOWAS Protocol) is anything to go by, it expresses that intraregional mobility has a remarkable impact on the implementation and sustainability of trade liberalization regimes. Following the events since its enactment in 1979, the inadequacies of the ECOWAS protocol, particularly relating to the right of establishment, have been slower - offering a learning curve for similar regimes within the African sub-region. The Protocol itself emanated from the need for ECOWAS, an economic bloc established in 1975, to express its objectives of promoting cooperation among its member states and raising the living standard of the nationals of its member states. But if this objective was ever fully achieved is questionable. The hallmark of the Protocol was to be the gradual removal of all obstacles to the free movement of persons, services and capital towards the establishment of a common market.
To this end, and as with the AEC Protocol, the ECOWAS Protocol established the right to free movement in three regards – entry, residence and establishment. The implementation of these rights was scheduled to take effect in three incremental phases within fifteen years from when the Protocol was adopted. While Phase One, guaranteeing free entry and Phase Two, the right of residence, became operational in 1980 and 1986, respectively, the right of establishment encompassing the right to set up business, trade, profession, vocation, economic activity as a self-employed person which has a tremendous impact on the realization of the objective of "economic integration" and raising the living standard of nationals of ECOWAS member states is yet to be implemented.
Generally speaking, despite ECOWAS's ambitious intentions, the operationalization of the ECOWAS Protocol vis-à-vis its intended objective of trade liberalization has not been very successful, given its years of existence. A range of issues such as mistrust, lack of political will, human rights abuses and corruption that accompany the movement of persons across state lines have all accounted for the slow pace of development of intra-West Africa mobility and, by extension, trade within the West African sub-region. The passing of indigenization policies by countries, which were championed as a means to protect the few available jobs, the expulsion of non-nationals, and stricter border controls impeded mobility within the sub-region, particularly at the nascent stages of its formation. Mistrust among West African states took a firm hold after Nigeria expulsed many West African nationals, especially Ghanaian residents from Nigeria, in 1983 and 1985, despite having previously ratified the ECOWAS Protocol. This era in Nigeria's history is profusely recalled with the slogan "Ghana must go." This event was followed by the expulsion of other non-resident nationals of West African origin from Liberia in 1983, Senegal in 1990, Benin Republic in 1998 and Cote d'Ivoire in 1999.
The mistrust and the slow pace of development strides show that the events starting in the 1980s left a pill too bitter to swallow - an indication that mass expulsions left unchecked can weaken the core. Art. 20 of the AEC Protocol entrenches a prohibition against mass expulsion. So, while expulsion, deportation and repatriation can be done per Art. 21 of the AEC Protocol, mass expulsion is prohibited, especially based on enumerated grounds of national, racial, ethnic or religious groups. This creates an anchor on which trade in goods and services can thrive without fear of expulsion and ultimate loss of revenue.
Among the various issues that the community faces, the many hindrances to free movement significantly contributed to the inability of ECOWAS to yield far-reaching results in the almost forty-six years of existence.
Conclusion
Difficulties associated with traders' ability to move across borders within West Africa freely are attributable to the rife non-compliance with the ECOWAS Protocol. This also greatly impeded trade flows within ECOWAS member states. While ECOWAS set out an ambitious target, as has AfCFTA, the many issues that hamper intra-regional mobility within West Africa are set to surface within the framework of AfCFTA, failing to address pertinent questions and proffer realistic and timely solutions on the issue of intra-regional mobility in the execution of continental trade of goods and services.
The progressive implementation of a harmonized continental mobility regime with customs and immigration procedures that enhance intra-regional labour mobility and cross-border trade is germane to the rapid development of AfCFTA–creating avenues for the establishment of robust networks, where traders can better market their products and services in all parts of Africa, adding value to the economy, and contributing to the advancement of agenda 2063.
But with the AEC Protocol not yet operational, what does this mean for African and Intra Regional Mobility as AfCFTA enters the next implementation phase?
Can the activities in the ECOWAS sub-region offer insights into what the future holds and how these issues may be addressed?